G v Cornelius de Visser.
Date: 2012-03-15
39. In that regard, it must be borne in mind, firstly, that where the domicile of a defendant who is a Member State national is unknown, the application of the uniform rules of jurisdiction established by Regulation No 44/2001 instead of those in force in the different Member States meets the essential requirement of legal certainty and the objective, pursued by that regulation, of strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see, to that effect, Case C‑327/10 Hypoteční banka  [2011] ECR I‑0000, paragraph 44).
44. In that regard, it must be pointed out from the outset that the purpose of Regulation No 44/2001, like the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention, is not to unify the procedural rules of the Member States, but to determine which court has jurisdiction in disputes concerning civil and commercial matters in relations between Member States and to facilitate the enforcement of judgments ( Hypoteční banka , paragraph 37).
45. While, in the absence of systematic regulation of national procedures by European Union law, it is therefore for the Member States, in the context of their procedural autonomy, to lay down the procedural rules applicable to actions brought before their courts, those rules must not infringe European Union law, including, in particular, the provisions of Regulation No 44/2001.
47. As regards the requirements to be met during the proceedings, it must be borne in mind that all the provisions of Regulation No 44/2001 express the intention to ensure that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed (see Case 125/79 Denilauler  [1980] ECR 1553, paragraph 13, and Case C‑394/07 Gambazzi  [2009] ECR I‑2563, paragraph 23).
49. In that regard, the Court has held, in paragraph 29 of the judgment in Gambazzi , that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be subject to restrictions. However, such restrictions must in fact correspond to the objectives of public interest pursued by the measure in question and must not constitute, with regard to the aim pursued, a disproportionate breach of those rights.
53. It is true that the question whether the document instituting proceedings was duly served on a defendant in default of appearance must be determined in the light of the provisions of that convention, (Case C‑522/03 Scania Finance France  [2005] ECR I‑8639, paragraph 30) and, a fortiori, in the light of the provisions of that regulation. Nevertheless, that rule applies only in so far as those provisions apply. Both Article 1(2) of Regulation No 1393/2007 and the second paragraph of Article 1 of the 1965 Hague Convention specify that those instruments ‘shall not apply where the address of the person to be served with the document is not known’.
64. It is therefore apparent from the very wording of Regulation No 805/2004 that a judgment by default issued in circumstances where it is impossible to ascertain the domicile of the defendant cannot be certified as a European Enforcement Order. That conclusion also follows from an analysis of the objectives and scheme of that regulation. The regulation institutes a derogation from the common system of recognition of judgments, the conditions of which are, as a matter of principle, to be interpreted strictly.
70. In that regard, it is clearly apparent from the judgment in eDate Advertising and Others  that the establishment of the provider in another Member State constitutes both the reason for and the condition for application of the mechanism laid down in Article 3 of Directive 2000/31. That mechanism seeks to ensure the free movement of information society services between Member States by making those services subject to the legal system of the Member State in which their providers are established ( eDate Advertising and Others , paragraph 66).
71. Since application of Article 3(1) and (2) of that directive is thus subject to the identification of the Member State in whose territory the information society service provider is actually established ( eDate Advertising and Others , paragraph 68), it is for the national court to ascertain whether the defendant is actually established in the territory of a Member State. In the absence of such establishment, the mechanism laid down in Article 3(2) of Directive 2000/31 does not apply.