Peter Klomps v Karl Michel.
Date: 1981-06-16
9 AS HAS BEEN INDICATED ABOVE , ARTICLE 27 , POINT 2 , IS INTENDED TO ENSURE THAT A JUDGMENT IS NOT RECOGNIZED OR ENFORCED UNDER THE CONVENTION IF THE DEFENDANT HAS NOT HAD AN OPPORTUNITY OF DEFENDING HIMSELF BEFORE THE COURT FIRST SEISED . IT FOLLOWS THAT A MEASURE , SUCH AS THE ORDER FOR PAYMENT ( ZAHLUNGSBEFEHL ) IN GERMAN LAW , SERVICE OF WHICH ON THE DEFENDANT ENABLES THE PLAINTIFF , WHERE NO OBJECTION TO THE ORDER IS MADE , TO OBTAIN A DECISION WHICH IS ENFORCEABLE UNDER THE CONVENTION , MUST BE DULY SERVED ON THE DEFENDANT IN SUFFICIENT TIME TO ENABLE HIM TO ARRANGE FOR HIS DEFENCE AND ACCORDINGLY THAT SUCH A MEASURE MUST BE UNDERSTOOD AS BEING COVERED BY THE     WORDS ' ' THE DOCUMENT WHICH INSTITUTED THE PROCEEDINGS ' '  IN ARTICLE 27 , POINT 2 . ON THE OTHER HAND A DECISION , SUCH AS THE ENFORCEMENT ORDER ( VOLL-  STRECKUNGSBEFEHL ) IN GERMAN LAW , WHICH IS ISSUED FOLLOWING SERVICE OF AN ORDER FOR PAYMENT AND WHICH IS IN ITSELF ENFORCEABLE UNDER THE CONVENTION , IS NOT COVERED BY THOSE WORDS EVEN ALTHOUGH THE LODGING OF AN OBJECTION AGAINST THE ENFORCEMENT ORDER , LIKE THE OBJECTION TO THE ORDER FOR PAYMENT , TRANSFORMS THE PROCEDURE INTO ADVERSARY PROCEEDINGS .
15 FOR THE PURPOSES OF THE REPLY TO THE FIRST PART OF THE QUESTION IT SHOULD FIRST OF ALL BE POINTED OUT THAT ARTICLE 27 , POINT 2 , LAYS DOWN TWO CONDITIONS , THE FIRST OF WHICH , THAT SERVICE SHOULD BE DULY EFFECTED , ENTAILS A DECISION BASED ON THE LEGISLATION OF THE STATE IN WHICH JUDGMENT WAS GIVEN AND ON THE CONVENTIONS BINDING ON THAT STATE IN REGARD TO SERVICE WHILST THE SECOND , CONCERNING THE TIME NECESSARY TO ENABLE THE DEFENDANT TO ARRANGE FOR HIS DEFENCE , IMPLIES APPRAISALS OF A FACTUAL NATURE . A DECISION CONCERNING THE FIRST OF THOSE CONDITIONS MADE IN THE STATE IN WHICH THE JUDGMENT WAS GIVEN ACCORDINGLY DOES NOT RELEASE THE COURT IN THE STATE IN WHICH ENFORCEMENT IS SOUGHT FROM ITS DUTY TO EXAMINE THE SECOND CONDITION , EVEN IF THAT DECISION WAS MADE IN THE CONTEXT OF SEPARATE ADVERSARY PROCEEDINGS .
18 THE SECOND CONDITION CONTAINED IN ARTICLE 27 , POINT 2 , IS INTENDED TO ENSURE THAT THE DEFENDANT HAS SUFFICIENT TIME TO PREPARE HIS DEFENCE OR TO TAKE THE STEPS NECESSARY TO PREVENT JUDGMENT ' S BEING GIVEN IN DEFAULT . THE QUESTION SUBMITTED TO THE COURT IS NOT CONCERNED WITH HOW LONG THIS TIME IS BUT RATHER WITH THE POINT FROM WHICH IT BEGINS TO RUN . THE HOGE RAAD IS IN FACT ASKING WHETHER THE COURT IN WHICH ENFORCEMENT IS SOUGHT MUST PROCEED ON THE ASSUMPTION THAT A DEFENDANT IS ABLE TO PREPARE HIS DEFENCE AS SOON AS THE DOCUMENT WHICH INSTITUTED THE PROCEEDINGS REACHES HIS HABITUAL RESIDENCE .
20 IN CONSIDERING WHETHER IT IS CONFRONTED WITH SUCH A CASE THE COURT IN WHICH ENFORCEMENT IS SOUGHT MAY TAKE ACCOUNT OF ALL THE CIRCUMSTANCES OF THE CASE IN POINT , INCLUDING THE MEANS EMPLOYED FOR EFFECTING SERVICE , THE RELATIONS BETWEEN THE PLAINTIFF AND THE DEFENDANT OR THE NATURE OF THE STEPS WHICH HAD TO BE TAKEN IN ORDER TO PREVENT JUDGMENT FROM BEING GIVEN IN DEFAULT . IF , FOR EXAMPLE , THE DISPUTE CONCERNS COMMERCIAL RELATIONS AND IF THE DOCUMENT WHICH INSTITUTED THE PROCEEDINGS WAS SERVED AT AN ADDRESS AT WHICH THE DEFENDANT CARRIES ON HIS BUSINESS ACTIVITIES THE MERE FACT THAT THE DEFENDANT WAS ABSENT AT THE TIME OF SERVICE SHOULD NOT NORMALLY PREVENT HIM FROM ARRANGING HIS DEFENCE , ABOVE ALL IF THE ACTION NECESSARY TO AVOID A JUDGMENT IN DEFAULT MAY BE TAKEN INFORMALLY AND EVEN BY A REPRESENTATIVE .