Hypoteční banka a.s. v Udo Mike Lindner.
Date: 2011-11-17
29. In that regard, it must first be pointed out that, 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 (‘the Brussels Convention’), the interpretation of which is also valid for Regulation No 44/2001 whenever the provisions of those European Union instruments may be regarded as equivalent (Case C‑189/08 Zuid-Chemie  [2009] ECR I‑6917, paragraph 18), the application of the rules of jurisdiction of that regulation requires the existence of an international element.
30. As the Court has already held in respect of the Brussels Convention, the international nature of a legal relationship may derive from the fact that the situation at issue in the proceedings is such as to raise questions relating to the determination of international jurisdiction (Case C‑281/02 Owusu  [2005] ECR I‑1383, paragraph 26).
33. In a situation such as that in the main proceedings, the courts of the Member State of which the defendant is a national may also consider themselves to have jurisdiction even though the place in that Member State where the defendant is domiciled is unknown. In those circumstances, application of the uniform rules of jurisdiction laid down by Regulation No 44/2001 to replace those in force in the various Member States would be in accordance with the requirement of legal certainty and with the purpose of that regulation, which is to guarantee, to the greatest extent possible, the protection of defendants who are domiciled in the European Union.
37. In order to answer that question, it must be noted at the outset that the purpose of Regulation No 44/2001, like the Brussels 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 (see, to that effect, Case C‑18/02 DFDS Torline  [2004] ECR I ‑ 1417, paragraph 23).
44. It is, above all, in accordance with the objective, pursued by Regulation No 44/2001, 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, inter alia, Joined Cases C‑509/09 and C‑161/10 eDate Advertising and Others  [2011] ECR I‑0000, paragraph 50).
45. Such a solution, while promoting the application of the uniform rules laid down by Regulation No 44/2001 as opposed to that of divergent national rules, then enables a situation to be avoided in which the fact that it is not possible to identify the current domicile of the defendant precludes determination of the court having jurisdiction, thereby depriving the applicant of his right to bring proceedings. Such a situation may arise, inter alia, in a case such as that in the main proceedings, in which a consumer who, pursuant to Article 16(2) of that regulation, ought to be sued in the courts of the Member State in which he is domiciled, renounced his domicile before the proceedings against him were brought.
48. In that regard, so far as concerns the requirements to be complied with during the subsequent 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 that regulation’s objectives, 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).
50. In this respect, the Court 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. Such restrictions must, however, 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 interference with the rights thus guaranteed.
51. In that regard, it must be borne in mind that the Court has already held that the objective of avoiding situations of denial of justice, which the applicant would face should it not be possible to determine the defendant’s domicile, constitutes such an objective of public interest (see, to that effect, Gambazzi , paragraphs 31 to 33), it being a matter for the referring court to determine whether that objective is in fact pursued by the national provision at issue.
54. In contrast to the situation of the defendant, who, when deprived of the opportunity to defend himself effectively, will have the opportunity to ensure respect for the rights of the defence by opposing, in accordance with Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against him (see, to that effect, Case 49/84 Debaecker and Plouvier [1985] ECR 1779, paragraph 11), the applicant runs the risk of being deprived of all possibility of recourse.