Hengst Import BV v Anna Maria Campese.
Date: 1995-07-13
14 It should also be noted that the order at issue is undoubtedly a judgment capable of recognition and enforcement under Title III of the Convention since there could have been an inter partes hearing in the State where it was made before recognition and enforcement were sought in the Netherlands (see Case 125/79 Denilauler v Couchet Frères [1980] ECR 1553, paragraph 13).
15 By virtue of Article 645 of the CPC, Hengst could have opposed the order before the Tribunale di Trani within 20 days of service of the decreto ingiuntivo, which would have converted the matter into ordinary contentious proceedings.
16 In order to construe the term "document which instituted the proceedings or ... equivalent document" used in Article 27(2) of the Convention, it must first be noted that the provisions of the Convention as a whole, both in Title II on jurisdiction and in Title III on recognition and enforcement, manifest an intention to ensure that, within the scope of the objectives of the Convention, proceedings culminating in judicial decisions are conducted in such a way that the rights of the defence are observed (Denilauler, paragraph 13).
17 That requirement is particularly crucial where the defendant fails to respond. Article 27(2) is specifically intended to ensure that a judgment given in default can be recognized or enforced under the Convention only if the defendant had the opportunity to put his defence before the court which gave the judgment (Case 166/80 Klomps v Michel [1981] ECR 1593, paragraph 9, and Case C-123/91 Minalmet v Brandeis [1992] ECR I-5661, paragraph 18). To that end, the provision requires that the document which instituted the proceedings or an equivalent document be duly and timeously served on the defendant.
18 It is clear from Minalmet, paragraphs 19 and 20, that in order to enable the defendant to arrange for his defence, service of the document which instituted the proceedings or an equivalent document within the meaning of Article 27(2) of the Convention must be effected before an enforceable judgment is given in the State of origin.
19 It follows that the term "document which instituted the proceedings or ... equivalent document" within the meaning of Article 27(2) of the Convention means the document or documents which must be duly and timeously served on the defendant in order to enable him to assert his rights before an enforceable judgment is given in the State of origin.
20 Since their joint service starts time running for the defendant to oppose the order and since the plaintiff cannot obtain an enforceable order before the expiry of the time-limit, the decreto ingiuntivo and the plaintiff' s application constitute a document which instituted the proceedings or an equivalent document within the meaning of Article 27(2) of the Convention.
21 It must be stressed that in this case the document which instituted the proceedings is constituted by the combination of the order to pay and the application. The decreto ingiuntivo is just a form which to be comprehensible must be read with the application. Conversely, service of the application alone would not enable the defendant to decide whether to defend the action since, without the decreto ingiuntivo, he would not know whether the court had granted or refused the application. Moreover, the requirement for joint service of the decreto ingiuntivo and the application is confirmed by Article 643 of the CPC, according to which it marks the start of the proceedings.