Gaetano Verdoliva v J. M. Van der Hoeven BV, Banco di Sardegna and San Paolo IMI SpA.
Date: 2006-02-16
26. In relation to the aims of the Brussels Convention, it is clear from its preamble that it is intended to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals. It is settled case-law that it is not, however, permissible to achieve that aim by undermining in any way the right to a fair hearing (see, in particular, Case 49/84 Debaecker and Plouvier  [1985] ECR 1779, paragraph 10, and Case C-522/03 Scania Finance France  [2005] ECR I-0000, paragraph 15).
27. More particularly, as far as enforcement is concerned, the principal aim of the Convention is to facilitate, to the greatest possible extent, the free movement of judgments by providing for a simple and rapid enforcement procedure whilst giving the party against whom enforcement is sought an opportunity to lodge an appeal (see, in particular, Case 148/84 Deutsche Genossenschaftsbank  [1985] ECR 1981, paragraph 16, and Case C-7/98 Krombach  [2000] ECR I-1935, paragraph 19).
29. Accordingly, by virtue of Articles 27(2) and the second sentence of Article 34 of that Convention, a judgment given in default of appearance is not to be recognised or enforced in another Contracting State if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence. In that context, the Court has held that a judgment given in default of appearance in a Contracting State must not be recognised in another Contracting State where the document which instituted the proceedings was not duly served on the defendant, even if the defendant subsequently had notice of the judgment and did not have recourse to the available legal remedies (Case C-305/88 Lancray  [1990] ECR I-2725, paragraph 23, and Case C-123/91 Minalmet  [1992] ECR I-5661, paragraph 21).
32. Further, according to Article 36 of the Brussels Convention, the party against whom enforcement is sought may appeal against the decision, according to whether or not he is domiciled in the Contracting State in which the decision authorising enforcement was given, within a time-limit of one or two months from the date of service of the decision. That time-limit is of a strict and mandatory nature (Case 145/86 Hoffmann  [1988] ECR 645, paragraphs 30 and 31). Conversely, it follows from both the wording of Article 40(1) of that Convention and the Jenard Report on the Convention (OJ 1979 C 59, p. 1, 53), that an applicant’s right of appeal against a decision refusing the application for enforcement is not subject to any time-limit.
34. In that regard, it is common ground, first, as stated by the Advocate General at point 56 of her Opinion, that the requirement that the decision authorising enforcement be served has a dual function: on the one hand, it serves to protect the rights of the party against whom enforcement is sought and, on the other, it allows, in terms of evidence, the strict and mandatory time-limit for appealing provided for in Article 36 of the Brussels Convention to be calculated precisely.
36. Secondly, it should be borne in mind that, if the sole issue were whether the document authorising enforcement came to the attention of the party against whom enforcement was sought, that could render the requirement of due service meaningless. Claimants would then be tempted to ignore the prescribed forms for due service (see, to that effect, in the context of Article 27(2) of the Brussels Convention, Lancray , paragraph 20).
37. Moreover, that would make the exact calculation of the time-limit provided for in Article 36 of the Convention more difficult, thus thwarting the uniform application of the provisions of the Convention (see, to that effect, Lancray , paragraph 20).