Trade Agency Ltd v Seramico Investments Ltd.
Date: 2012-09-06
27. In order to answer that question it is necessary to interpret Article 34(2) of Regulation No 44/2001 in the light, not only of the wording of that provision, but also of the system established by the regulation and the objectives it pursues.
28. As regards the system established by that regulation, it is clear from recital 17 in the preamble to the latter that the procedure for making enforceable in one Member State a judgment given in another may involve only a purely formal check of the documents required for enforceability in the Member State in which enforcement is sought (Case C-139/10 Prism Investments  [2011] ECR I-9511, paragraph 28).
29. Following the lodging of such an application, as is clear from Article 41 of Regulation No 44/2001, the authorities of the Member State in which enforcement is sought must, at the beginning of the procedure, not do any more than ensure completion of those formalities with a view to issuing a declaration of enforceability for that judgment. Consequently, in that stage of the procedure, those authorities may not carry out any assessment of the elements of fact and law of the case decided by the judgment enforcement of which is sought (see, Prism Investments , paragraph 30).
31. Thus, in accordance with Article 43 of Regulation No 44/2001, the declaration of enforceability of a judgment delivered may be the subject of dispute brought by the defendant concerned in the second stage of the procedure. The grounds for dispute that may be relied upon are expressly set out in Articles 34 and 35 of Regulation No 44/2001, to which Article 45 thereof refers (see, to that effect, Prism Investments , paragraphs 32 and 33).
32. Specifically as regards the ground mentioned in Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, it must be held that it aims to ensure that the rights of defence of a defendant in default of appearance delivered in the Member State of origin are observed by a double review (see ASML , paragraph 29).  Under that system, where an appeal is lodged, the court of the Member State in which enforcement is sought must refuse or revoke the enforcement of a foreign judgment given in default of appearance if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment whereas it was possible for him to do so.
33. In that context, it is common ground that whether the defendant was served with the document which instituted the proceedings is a relevant aspect of the overall assessment of a factual nature (see, to that effect Case 166/80 Klomps  [1981] ECR 1593, paragraphs 15 and 18), which must be conducted by the court of the Member State in which enforcement is sought in order to ascertain whether that defendant has the time necessary in order to prepare his defence or to take the steps necessary to prevent a decision delivered in default of appearance.
40. In that connection, as is clear from recitals 16 and 17 in the preamble to the regulation, the rules on recognition and enforcement laid down by that regulation are based on mutual trust in the administration of justice in the European Union. Such trust requires that judicial decisions delivered in one Member State are not only recognised automatically in another Member State, but also that the procedure for making those decisions enforceable in that Member State is efficient and rapid (see, Prism Investments , paragraph 27).
41. In that context, the function ascribed to the certificate is specifically to facilitate, in the first stage of the procedure, the adoption of the declaration of enforceability of the judgment given in the Member State of origin, making its delivery almost automatic, as is expressly stated in recital 17 in the preamble to Regulation No 44/2001.
42. However, as is clear from settled case-law, that objective cannot be attained by undermining in any way the right to a fair hearing (see, to that effect, ASML , paragraphs 23 and 24 and the case-law cited).
43. In that connection, the Court has already held that it is apparent from recitals 16 to 18 in the preamble to Regulation No 44/2001 that the system of appeals for which it provides against the recognition or enforcement of a judgment aims to establish a fair balance between, on the one hand, mutual trust in the administration of justice in the Union, and, on the other, respect for the rights of the defence, which means that the defendant should, where necessary, be able to appeal in an adversarial procedure against the declaration of enforceability if he considers one of the grounds for non-enforcement to be present (see, to that effect, Case C-420/07 Apostolides  [2009] ECR I-3571, paragraph 73).
44. It is in the second stage of the procedure opened in the Member State in which enforcement is sought, which is triggered only if the defendant brings an appeal against the declaration of enforceability, that Regulation No 44/2001 provides, as set out in paragraph 32 of this judgment, for a double review seeking to ensure, in particular, respect for the rights of defence of the defendant in default not only during the initial proceedings in the Member State of origin (see, to that effect, ASML , paragraph 30), but also during the enforcement proceedings in the requested Member State (see, to that effect, ASML , paragraph 31).
48. As a preliminary point, it should be recalled that since Article 34 of Regulation No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation, the public-policy clause in Article 34(1) of the regulation may be relied on only in exceptional cases (see, to that effect, Apostolides , paragraph 55 and the case-law cited).
49. In that context, while the Member States remain in principle free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter of interpretation of that regulation (see Case C-7/98 Krombach  [2000] ECR I-1935, paragraph 22; Case C-38/98 Renault [2000] ECR I-2973, paragraph 27; and Apostolides , paragraph 56). Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from another Member State (see, Krombach , paragraph 23; Renault , paragraph 28; and Apostolides , paragraph 57).
50. In that connection, it must be observed that, by disallowing any review of a foreign judgment as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit the court of the State in which enforcement is sought from refusing to recognise or enforce that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which enforcement is sought had it been seised of the dispute. Similarly, the court of the State in which enforcement is sought cannot review the correctness of the findings of law or fact made by the court of the State of origin (see, Krombach , paragraph 36; Renault , paragraph 29; and Apostolides , paragraph 58).
51. Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 can be envisaged only where recognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it would infringe a fundamental principle. The infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order (see Krombach , paragraph 37; Renault , paragraph 30; and Apostolides , paragraph 59).
52. As regards the right to a fair trial, to which reference is made in the question referred, it must be recalled that that right results from the constitutional traditions common to the Member States and was reaffirmed in the second paragraph of Article 47 of the Charter, which corresponds, as is clear from the explanations relating to that article, to Article 6(1) of the ECHR (see Case C-279/09 DEB  [2010] ECR I-13849, paragraph 32).
53. In that connection, the Court has held that the observance of the right to a fair trial requires that all judgments be reasoned to enable the defendant to see why judgment has been pronounced against him and to bring an appropriate and effective appeal against it (see, to that effect, ASML , paragraph 28).
55. In that connection, however, the Court has held that fundamental rights do not constitute unfettered prerogatives and may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a manifest and disproportionate breach of the rights thus guaranteed (see, to that effect, Case C-28/05 Dokter and Others  [2006] ECR I-5431, paragraph 75; Case C-394/07 Gambazzi  [2009] ECR I-2563, paragraph 29; and Joined Cases C-317/08 to C-320/08 Alassini  [2010] ECR I-2213, paragraph 63).
59. That being the case, it is nevertheless for the referring court to verify, in the light of the specific circumstances in the main proceedings, whether the restriction introduced by the procedural system in England and Wales is not manifestly disproportionate as compared with the aim pursued (see, to that effect, Gambazzi , paragraph 34).
60. From that perspective, it must be held, as the Advocate General noted in point 83 of her Opinion, that the extent of the obligation to give reasons may vary according to the nature of the decision and must be examined, in the light of the proceedings taken as a whole and all the relevant circumstances, taking account of the procedural guarantees surrounding that decision, in order to ascertain whether the latter ensure that the persons concerned have the possibility to bring an appropriate and effective appeal against that decision (see, to that effect, Case C-341/04 Eurofood IFSC  [2006] ECR I-3813, paragraph 66, and Gambazzi , paragraphs 40, 45 and 46).