Emmanuel Lebek v Janusz Domino.
Date: 2016-07-07
32


In that regard, it should be borne in mind that, in order to ensure, as far as possible, that the rights and obligations which derive from the Brussels I Regulation for the Member States and the persons to whom it applies are equal and uniform, the concept of ‘proceedings to challenge a judgment’ referred to in Article 34(2) of the Brussels I Regulation should not be interpreted as a mere reference to the internal law of one or other of the States concerned. That concept must be regarded as an independent concept to be interpreted by referring, inter alia, to the objectives of that regulation (see, to that effect, judgment of 28 April 2009 in Apostolides, C‑420/07, EU:C:2009:271, paragraph 41 and the case-law cited).
33


As regards the objectives of that regulation, it is clear from recitals 2, 6, 16 and 17 thereof that it seeks to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities with a view to their rapid and simple recognition and enforcement (judgment of 14 December 2006 in ASML, C‑283/05, EU:C:2006:787, paragraph 23).
34


However, that objective cannot be attained by undermining in any way the rights of the defence, as was found by the Court concerning Article 27(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32) (‘the Brussels Convention’) (judgment of 14 December 2006 in ASML, C‑283/05, EU:C:2006:787, paragraph 24 and the case-law cited).
36


In that connection, it is apparent from recitals 16 to 18 to the Brussels I Regulation 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, which justifies judgments given in a Member State being, as a rule, recognised and declared enforceable automatically in another Member State and, on the other hand, 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 (judgment of 28 April 2009 in Apostolides, C‑420/07, EU:C:2009:271, paragraph 73).
37


The Court has also held that fundamental rights, such as respect for the rights of the defence, which derive from the right to a fair hearing, 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 (see, to that effect, judgment of 17 November 2011 in Hypoteční banka, C‑327/10, EU:C:2011:745, paragraph 50).
38


Regarding Article 34(2) of the Brussels I Regulation, it should be borne in mind that, unlike Article 27(2) of the Brussels Convention, it does not necessarily require the document which instituted the proceedings to be duly served, but rather requires that the rights of the defence are effectively respected (see judgment of 14 December 2006 in ASML, C‑283/05, EU:C:2006:787, paragraph 20).
39


Article 34(2) of the Brussels I Regulation, to which Article 45(1) thereof refers, aims to ensure, by a double review, observance of the rights of the defence of a defendant in default of appearance in the original proceedings in the State in which the judgment was given. Under that system, where an appeal is lodged, the court of the Member State in which enforcement is sought must refuse or cancel 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 when it was possible for him to do so (judgment of 6 September 2012 in Trade Agency, C‑619/10, EU:C:2012:531, paragraph 32 and the case-law cited).
40


However, Article 34(2) of the Brussels I Regulation does not mean that the defendant is required to take additional steps going beyond normal diligence in the defence of his rights, such as steps to inform himself of the contents of a judgment delivered in another Member State (judgment of 14 December 2006 in ASML, C‑283/05, EU:C:2006:787, paragraph 39).
41


Consequently, in order to justify the conclusion that it was possible for a defendant to commence proceedings to challenge a default judgment against him, within the meaning of Article 34(2) of the Brussels I Regulation, he must have been aware of the contents of that judgment, which presupposes that it was served on him (judgment of 14 December 2006 in ASML, C‑283/05, EU:C:2006:787, paragraph 40).
51


As a preliminary point, it should be borne in mind that, under the second paragraph of Article 288 TFEU, regulations are legal acts of the Union having general application, are binding in their entirety and are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of EU law, regulations have immediate effect and operate to confer rights on individuals which the national courts have a duty to protect (judgments of 14 July 2011 in Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 40, and 10 December 2013 in Abdullahi, C‑394/12, EU:C:2013:813, paragraph 48).
52


In that regard, the choice of the form of a regulation shows the importance which the EU legislature attaches to the direct applicability of the provisions of Regulation No 1393/2007 and their uniform application (see, by analogy, judgments of 8 November 2005 in Leffler, C‑443/03, EU:C:2005:665, paragraph 46, and 25 June 2009 in Roda Golf & Beach Resort, C‑14/08, EU:C:2009:395, paragraph 49).
55


Furthermore, according to settled case-law, in general, limitation periods fulfil the function of ensuring legal certainty (judgments of 28 October 2010 in SGS Belgium and Others, C‑367/09, EU:C:2010:648, paragraph 68, and 8 September 2011 in Q-Beef and Bosschaert, C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 42).