1 By order dated 22 September 1988, which was received at the Court on 19 October 1988, the Bundesgerichtshof referred to the Court for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ( hereinafter referred to as "the Convention ") two questions on the interpretation of Article 27(2 ) of the Convention .
2 Those questions arose in the context of proceedings pending before that court between Isabelle Lancray SA, a public limited liability company governed by French law whose registered office is at Neuilly-sur-Seine, France ( hereinafter referred to as "Lancray "), and Peters und Sickert KG, a limited partnership governed by German law whose registered office is at Essen, Federal Republic of Germany ( hereinafter referred to as "Peters ").
3 It appears from the documents before the Court that the parties had business relations, based on a contract of 2 November 1983, in respect of which they had agreed to apply French law and to give jurisdiction to the Tribunal de commerce ( Commercial Court ), Nanterre . A number of problems led Lancray to bring legal proceedings against Peters, and on 18 July 1986 Lancray obtained an interim order from the Amtsgericht ( Local Court ) Essen prohibiting Peters from selling or delivering to third parties any products in its possession bearing Lancray' s trade mark . On 30 July 1986, Lancray applied to the Tribunal de commerce, Nanterre, to have the Amtsgericht' s order confirmed and for a number of additional measures . Also on 30 July 1986, the competent French authorities sent to the President of the Landgericht ( Regional Court ) Essen a summons to Peters, drawn up in French, to appear on 18 November 1986 before the French court, together with a request that the summons be served on Peters and that a certificate of service be returned to the French authorities .
4 By a certificate of service dated 19 August 1986 the competent German authority stated that the documents had been served by handing them to a secretary in Peters' s offices . No German translation was appended to the documents . A further summons dated 19 September 1986, drawn up in French, to appear at a hearing before the Tribunal de commerce, Nanterre, on 16 December 1986 was sent to Peters by registered mail .
5 On 16 October 1986, on appeal by Peters, the Landgericht Essen quashed the interim order obtained by Lancray from the Amtsgericht on 18 July 1986 . By a letter of 11 November 1986, Peters informed the Tribunal de commerce, Nanterre, of this fact and also stated that the summonses had not been duly served because they were not accompanied by a translation in German .
6 Peters did not appear at the hearing on 16 December 1986 and, by judgment of 15 January 1987, the Tribunal de commerce, Nanterre, upheld Lancray' s application . That judgment was served on Peters by delivery to its managing partner on 9 March 1987 . By order of 6 July 1987, the Landgericht Essen ruled that the judgment of the Tribunal de commerce, Nanterre, was to be recognized in the Federal Republic of Germany and authorized its enforcement in certain respects .
7 Peters then appealed against that judgment to the Oberlandesgericht ( Higher Regional Court ) on the ground that under Article 27(2 ) of the Convention Lancray' s application should not have been allowed . The Oberlandesgericht allowed that appeal . Lancray then appealed to the Bundesgerichtshof against the latter judgment .
8 Article 27(2 ) of the Convention, in the version to which the Bundesgerichtshof refers, provides : "A judgment shall not be recognized ... ( 2 ) where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence; ..."
9 The Bundesgerichtshof agrees with the Oberlandesgericht that the summons was served on Peters in sufficient time to enable it to arrange for its defence . It further agrees with the Oberlandesgericht that the document instituting the proceedings was not served in due form . It considers that the summons was served not on the addressee who accepted it voluntarily but by delivery to a secretary in the addressee' s offices, that is to say by substituted service . In accordance with the relevant international conventions, such service would have been acceptable only if the document served had been accompanied by a German translation, and that was not the case . The Bundesgerichtshof also notes that the Oberlandesgericht held that the national rules concerning the curing of defective service were not applicable since the addressee did not have a command of the foreign language used .
10 The Bundesgerichtshof therefore decided to stay the proceedings and to seek a preliminary ruling from the Court on the following questions : "( 1 ) Is recognition of a judgment given in default of appearance to be refused in accordance with Article 27(2 ) of the pre-accession version of the Brussels Convention where the document instituting the proceedings was not served on the defendant in due form, even though it was served in sufficient time to enable him to arrange for his defence? ( 2 ) In the event that a judgment given in default of appearance is not recognized because, although the defendant was served with the document instituting the proceedings in sufficient time to enable him to arrange for his defence, the service was not duly effected, does Article 27(2 ) of the pre-accession version of the Brussels Convention preclude recognition of the judgment even where the laws of the State in which recognition is sought permit the defective service to be cured?"
11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case before the national court, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court . The first question
12 The first question seeks to determine, in the light of the facts established by the national court, whether Article 27(2 ) of the Convention is to be interpreted as meaning that a judgment given in default of appearance may not be recognized where the document instituting the proceedings was not served on the defendant in due form, even though it was served in sufficient time to enable him to arrange for his defence .
13 In order to examine that question, it must first be determined whether the article in question lays down two mutually independent grounds for refusing to recognize a foreign judgment .
14 The Court observed in its judgment in Case 166/80 Klomps v Michel [1981] ECR 1593 that Article 27(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 .
15 It must then be determined whether the conditions of due service and sufficient time laid down in the aforementioned provision must both be met concurrently for a foreign judgment to be recognized .
16 The wording of the different language versions of the provision in question suggests that that question must be answered in the affirmative .
17 That interpretation is corroborated by the experts' report on the Brussels Convention ( Official Journal 1979 C 59, p . 1 ) which observes, in relation to Article 27(2 ) of the Convention : "Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection . ... Secondly, even where service has been duly effected, recognition can be refused if the court in which recognition is sought considers that the document was not served in sufficient time to enable the defendant to arrange for his defence ".
18 It must therefore be held that the requirements of due service and service in sufficient time constitute two separate and concurrent safeguards for a defendant who fails to appear . The absence of one of those safeguards is therefore a sufficient ground for refusal to recognize a foreign judgment .
19 The contrary view has been submitted that it is not necessary to insist on proper service if the defendant has, in any event, had sufficient time to arrange for his defence . According to that interpretation, due service is merely prima-facie evidence that service was effected in sufficient time, and failure to comply with the time requirement is the only true ground for refusing recognition .
20 That reasoning cannot be accepted . First, it is difficult to reconcile that interpretation with the wording of the relevant provision or with the Court' s ruling cited above . Secondly, it would render completely inoperative the requirement of due service . If the sole issue were whether the document came to the defendant' s attention in sufficient time, plaintiffs would be tempted to ignore the prescribed forms for due service, the requirements of which have in any event been considerably relaxed by international agreements . That would create considerable uncertainty as to whether documents had actually been served, thus thwarting the uniform application of the provisions of the Convention . Finally, a defendant could not know with certainty whether proceedings which might lead to a finding against him had been properly instituted and whether it was therefore necessary to arrange for a defence, a situation which would also be inconsistent with the aims of the Convention .
21 It must be added that, as the Court held in its judgment in Case 49/84 Debaecker v Bouwman [1985] ECR 1779, although the Convention is, as is clear from the preamble, intended to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals, that aim cannot be attained by undermining in any way the right to a fair hearing .
22 It follows from all of the foregoing considerations that recognition of a foreign judgment should be refused if service has not been effected in due form, regardless of whether the defendant was actually aware of the document instituting the proceedings .
23 The answer to the first question must therefore be that Article 27(2 ) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters is to be interpreted as meaning that a judgment given in default of appearance may not be recognized where the document instituting the proceedings was not served on the defendant in due form, even though it was served in sufficient time to enable him to arrange for his defence . The second question
24 The national court' s second question seeks to determine whether Article 27(2 ) of the Convention is to be interpreted as authorizing the courts of the State in which enforcement is sought to cure defective service by applying their national law .
25 It must be pointed out first of all that Article 27(2 ) of the Convention does not itself contain any rule as to whether defective service may be cured .
26 The question must therefore be answered on the basis of the rules applicable to the service of foreign judgments .
27 The first paragraph of Article IV of the Protocol of 27 September 1968 ( Official Journal 1978 L 304, p . 47 ), to which Article 65 of the Convention refers, provides : "Judicial and extra-judicial documents drawn up in one Contracting State which have to be served on persons in another Contracting State shall be transmitted in accordance with the procedures laid down in the conventions and agreements concluded between the Contracting States ."
28 In its judgment in Case 228/81 Pendy Plastic Products v Pluspunkt [1982] ECR 2723, the Court held that, although they do not seek to harmonize the different systems of service abroad of legal documents which are in force in the Member States, the provisions of the Brussels Convention are designed to ensure that the defendant' s rights are effectively protected . For that reason, jurisdiction to determine whether the document instituting the proceedings was properly served was conferred both on the court of the State in which the judgment was given and on the court of the State in which enforcement is sought .
29 The Brussels Convention does not determine which law is to be applied to that question . Since the rules governing the service of the document instituting the proceedings form part of the procedure before the court of the State in which judgment was given, the question whether service was duly effected can only be answered by reference to the law to be applied by that court, including any relevant international conventions .
30 Consequently, questions concerning the curing of defective service are governed by that law .
31 The answer to the second question must therefore be that Article 27(2 ) of the Convention is to be interpreted as meaning that questions concerning the curing of defective service are governed by the law of the State in which judgment was given, including any relevant international agreements .