Marco Gambazzi v DaimlerChrysler Canada Inc. and CIBC Mellon Trust Company.
Date: 2009-04-02
23. The Court has indeed made clear that all the provisions of the Brussels Convention, both those contained in Title II on jurisdiction and those contained in Title III on recognition and enforcement, express the intention to ensure that, within the scope of the objectives of the Convention, proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed. However, it considered that, for such decisions to fall within the scope of the Convention, it is sufficient if they are judicial decisions which, before their recognition and enforcement are sought in a State other than the State of origin, have been, or have been capable of being, the subject in that State of origin and under various procedures, of an inquiry in adversarial proceedings (Case 125/79 Denilauler  [1980] ECR 1553, paragraph 13).
26. In Case C-7/98 Krombach  [2000] ECR I-1935, paragraph 23, the Court of Justice held that, while it is not for the Court to define the content of the public policy of a Contracting State, it is none the less required to review the limits within which the courts of a Contracting State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from a court in another Contracting State.
27. In that regard, the Court explained that recourse to a public policy clause can be envisaged only where recognition or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it infringes 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 ( Krombach , paragraph 37).
28. With regard to the exercise of the rights of the defence, to which the question submitted for a preliminary ruling refers, the Court has pointed out that this occupies a prominent position in the organisation and conduct of a fair trial and is one of the fundamental rights deriving from the constitutional traditions common to the Member States and from the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, among which the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, is of particular importance (see, to that effect, Krombach , paragraphs 38 and 39).
29. It should, however, be borne in mind that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be subject to restrictions. However, such restrictions must 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 manifest or disproportionate breach of the rights thus guaranteed.
31. It must be conceded that such an objective is capable of justifying a restriction on the rights of the defence. As observed by the Italian and Greek Governments, the legal systems of most of the Member States provide for the imposition of sanctions on persons who, in civil proceedings, adopt delaying tactics which would ultimately lead to a denial of justice.
32. Such sanctions may not, however, be manifestly disproportionate to the aim pursued, which is to ensure the efficient conduct of proceedings in the interests of the sound administration of justice.
33. With regard to the sanction adopted in the main proceedings, the exclusion of Mr Gambazzi from any participation in the proceedings, that is, as the Advocate General stated in point 67 of her Opinion, the most serious restriction possible on the rights of the defence. Consequently, such a restriction must satisfy very exacting requirements if it is not to be regarded as a manifest and disproportionate infringement of those rights.
34. It is for the national court to assess, in the light of the specific circumstances of these proceedings, if that is the case.
37. In that regard, it must be pointed out that the Tribunal fédéral refers, to give substance to the public policy clause, to the right to a fair trial and the right to be heard, principles to which the Court itself referred in Krombach , and to which it has drawn attention in paragraphs 27 and 28 of this judgment.
40. To that end, it must be stated that the question of the compatibility of the exclusion measure adopted by the court of the State of origin with public policy in the State in which enforcement is sought must be assessed having regard to the proceedings as a whole in the light of all the circumstances (see, in that regard, Case C-341/04 Eurofood IFSC [2006] ECR I‑3813, paragraph 68).
42. With regard, first, to the disclosure order, it is for the national court to examine whether, and if so to what extent, Mr Gambazzi had the opportunity to be heard as to its subject-matter and scope, before it was made. It is also for it to examine what legal remedies were available to Mr. Gambazzi, after the disclosure order was made, in order to request its amendment or revocation. In that regard, it must be established whether he had the opportunity to raise all the factual and legal issues which, in his view, could support his application and whether those issues were examined as to the merits, in full accordance with the adversarial principle, or whether on the contrary, he was able to ask only limited questions.
44. Concerning, second, the making of the unless order, the national court must examine whether Mr Gambazzi could avail himself of procedural guarantees which gave him a genuine possibility of challenging the adopted measure.
45. Finally, with regard to the High Court judgments in which the High Court ruled on the applicants’ claims as if the defendant was in default, it is for the national court to investigate the question whether the well-foundedness of those claims was examined, at that stage or at an earlier stage, and whether Mr Gambazzi had, at that stage or at an earlier stage, the possibility of expressing his opinion on that subject and a right of appeal.
46. It must be underlined that verifying those points, to the extent that the sole purpose is to identify any manifest and disproportionate infringement of the right to be heard, does not mean reviewing the High Court’s assessment of the merits, which would constitute a review as to the substance of the judgment expressly prohibited by Article 29 and the third paragraph of Article 34 of the Brussels Convention. The referring court must confine itself to identifying the legal remedies which were available to Mr. Gambazzi and to verifying that they offered him the possibility of being heard, in compliance with the adversarial principle and the full exercise of the rights of defence.