1. This reference for a preliminary ruling concerns the interpretation of Article 34(1) and (2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
2. The reference has been made in proceedings between Trade Agency Ltd (‘Trade Agency’) and Seramico Investments Ltd (‘Seramico’) concerning the recognition and enforcement in Latvia, under Regulation No 44/2001, of a judgment in default delivered by the High Court of Justice of England and Wales, Queen’s Bench Division (United Kingdom). Legal context
3. Recitals 16 to 18 in the preamble to Regulation No 44/2001 state: ‘(16)\tMutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute. (17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. (18) However, respect for the rights of the defence means that the defendant should 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. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.’
4. Article 34(1) and (2) of that regulation provide: ‘A judgment shall not be recognised: (1) if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; (2) where it was 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’.
5. Article 35 of the regulation provides: ‘1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72. 2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction. 3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.’
6. Article 36 of the regulation provides: ‘Under no circumstances may a foreign judgment be reviewed as to its substance.’
7. Article 41 of Regulation No 44/2001 is worded as follows: ‘The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.’
8. Article 42 of that regulation provides: ‘1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State in which enforcement is sought. 2. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.’
9. Article 43 of that regulation states: ‘1. The decision on the application for a declaration of enforceability may be appealed against by either party. 2. The appeal is to be lodged with the court indicated in the list in Annex III. 3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters. 4. If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not domiciled in any of the Member States. 5. An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.’
10. Article 45 of Regulation No 44/2001 provides: ‘1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay. 2. Under no circumstances may the foreign judgment be reviewed as to its substance.’
11. Article 54 of that regulation is worded as follows: ‘The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation.’
12. Article 55 of that regulation states: ‘1. If the certificate referred to in Article 54 is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production. 2. If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be certified by a person qualified to do so in one of the Member States.’
13. Annex V to Regulation No 44/2001 provides in point 4.4 that the certificate drafted by the courts of the Member State in which a judgment is delivered indicates the ‘[d]ate of service of the document instituting the proceedings where judgment was given in default of appearance’. The dispute in the main proceedings and the questions referred for a preliminary ruling
14. Seramico brought an action before the High Court of Justice against Trade Agency and Hill Market Management LLP to obtain payment of GBP 289 122.10.
15. As is clear from the file and the information provided by the High Court of Justice, the originating application was served on the defendants on 10 September 2009.
16. However, when no defence to the action was filed by Trade Agency the High Court of Justice delivered a judgment in default of appearance on 8 October 2009 ordering Trade Agency to pay a total sum of GBP 293 582.98 based on the following grounds: ‘You have not replied to the claim form, which was served on you. It is therefore ordered that you must pay the claimant GBP 289 122.10 for debt [and interest to the date of the judgement] and GBP 130.00 for costs. You must pay to the claimant a total of GBP 293 582.98’.
17. On 28 October 2009 Seramico submitted to the Rīgas pilsētas Ziemeļu rajona tiesa (District Court North Riga) (Latvia) an application for recognition and enforcement in Latvia of the High Court judgment. The application was accompanied by a copy of that judgment and the certificate provided for by Article 54 of Regulation No 44/2001 (‘the certificate’).
18. The Rīgas pilsētas Ziemeļu rajona tiesa upheld that application by a judgment of 5 November 2009.
19. The appeal lodged against that judgment by Trade Agency was dismissed by the Rīgas apgabaltiesas Civillietu tiesas kolēģija (Civil Division, Riga Regional Court) (Latvia) in a decision of 3 March 2010.
20. Trade Agency then brought an appeal in cassation before the Augstākās tiesas Senāts (Senate of the Supreme Court) (court of cassation), arguing that the application for recognition and enforcement in Latvia of the judgment of the High Court of Justice should be rejected on the ground that its rights of defence had been breached during the proceedings in England, since it had not been informed that legal proceedings had been instituted before the High Court of Justice and that the latter’s judgment was manifestly contrary to Latvian public policy since it did not give any reasons.
21. In that connection, the Augstākās tiesas Senāts held, first of all, that it did indeed appear, in the light of the legal reasoning behind Article 54 of Regulation No 44/2001 that, where a foreign judgment is accompanied by the certificate, the court hearing the application for enforcement should, taking account in particular of the principle of mutual trust in the administration of justice laid down in recitals 16 and 17 in the preamble to the regulation, merely refer to the information in that certificate as regards service on the defendant, without requiring other evidence.
22. However, referring to Case C-283/05 ASML [2006] ECR I-12041, paragraph 29, that court observes that such a finding seems to go against the case-law of the Court of Justice which accepted, with regard to the system established by Regulation No 44/2001, that the observance of the rights of defence of a defendant in default of appearance is ensured by a double review, also carried out by the court hearing the application for recognition or enforcement of the foreign judgment.
23. Second, as regards the infringement of Latvian public policy, the Augstākās tiesas Senāts found that there was a relationship between it and the fundamental rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’) or the Charter of Fundamental Rights of the European Union (‘the Charter’).
24. In particular, taking the view that Article 6(1) of the ECHR, to which Article 47 of the Charter corresponds, was interpreted by the European Court of Human Rights as imposing on national courts the obligation to set out in their judgments the grounds on which they were adopted, the referring court considers that it should be possible, within the meaning of Article 34(1) of Regulation No 44/2001, to refuse recognition of a foreign judgment which breaches such an obligation. However, doubts persist as to whether a judgment such as that issue in the main proceedings, in the absence of any argument on the substance of the request, is in fact contrary to Article 47 of the Charter.
25. In those circumstances, the Augstākās tiesas Senāts decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Where a decision of a foreign court is accompanied by the certificate provided for in Article 54 of Regulation No 44/2001, but the defendant nevertheless objects on the ground that he was not served with notice of the action brought in the Member State of origin, is a court in the Member State where enforcement is sought competent, when considering a ground for withholding recognition provided for in Article 34(2) of Regulation No 44/2001, to examine for itself the conformity with the evidence of the information contained in the certificate? Is such wide jurisdiction on the part of a court in the Member State in which enforcement is sought compatible with the principle of mutual trust in the administration of justice set out in recitals 16 and 17 to Regulation No 44/2001? (2) Is a decision given in default of appearance, which disposes of the substance of a dispute without examining either the subject-matter of the claim or the grounds on which it is based and sets out no reasoning as to the substantive basis of the claim, compatible with Article 47 of the Charter and does it not infringe the defendant’s right to a fair hearing, laid down by the provision?’ Consideration of the questions referred for a preliminary ruling The first question
26. By its first question, the Augstākās tiesas Senāts asks essentially whether Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, read in conjunction with recitals 16 and 17 in the preamble to the regulation, must be interpreted as meaning that where the defendant brings an action against the application for enforcement of a judgment given in default of appearance in the Member State of origin and accompanied by the certificate, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to check whether the information in the certificate is consistent with the evidence.
27. In order to answer that question it is necessary to interpret Article 34(2) of Regulation No 44/2001 in the light, not only of the wording of that provision, but also of the system established by the regulation and the objectives it pursues.
28. As regards the system established by that regulation, it is clear from recital 17 in the preamble to the latter that the procedure for making enforceable in one Member State a judgment given in another may involve only a purely formal check of the documents required for enforceability in the Member State in which enforcement is sought (Case C-139/10 Prism Investments [2011] ECR I-9511, paragraph 28).
29. Following the lodging of such an application, as is clear from Article 41 of Regulation No 44/2001, the authorities of the Member State in which enforcement is sought must, at the beginning of the procedure, not do any more than ensure completion of those formalities with a view to issuing a declaration of enforceability for that judgment. Consequently, in that stage of the procedure, those authorities may not carry out any assessment of the elements of fact and law of the case decided by the judgment enforcement of which is sought (see, Prism Investments , paragraph 30).
30. Under Article 42(2) of Regulation No 44/2001, that declaration of enforceability must nonetheless be served on the party against whom enforcement is sought, accompanied, if necessary, by the judgment given in the Member State of origin if it has not yet been served on that party.
31. Thus, in accordance with Article 43 of Regulation No 44/2001, the declaration of enforceability of a judgment delivered may be the subject of dispute brought by the defendant concerned in the second stage of the procedure. The grounds for dispute that may be relied upon are expressly set out in Articles 34 and 35 of Regulation No 44/2001, to which Article 45 thereof refers (see, to that effect, Prism Investments , paragraphs 32 and 33).
32. Specifically as regards the ground mentioned in Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, it must be held that it aims to ensure that the rights of defence of a defendant in default of appearance delivered in the Member State of origin are observed by a double review (see ASML , paragraph 29). Under that system, where an appeal is lodged, the court of the Member State in which enforcement is sought must refuse or revoke 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 whereas it was possible for him to do so.
33. In that context, it is common ground that whether the defendant was served with the document which instituted the proceedings is a relevant aspect of the overall assessment of a factual nature (see, to that effect Case 166/80 Klomps [1981] ECR 1593, paragraphs 15 and 18), which must be conducted by the court of the Member State in which enforcement is sought in order to ascertain whether that defendant has the time necessary in order to prepare his defence or to take the steps necessary to prevent a decision delivered in default of appearance.
34. That being the case, it must be observed that the fact that the foreign judgment is accompanied by the certificate cannot limit the scope of the assessment to be made pursuant to the double control, by the court of the Member State in which enforcement is sought, once it examines the ground for challenge mentioned in Article 34(2) of Regulation No 44/2001.
35. First of all, as the Advocate General observed in point 31 of her Opinion, no provision of Regulation No 44/2001 expressly prohibits the court of the Member State in which enforcement is sought from verifying the accuracy of the factual information contained in the certificate, since Articles 36 and 45(2) thereof limit the prohibition on review of the substance only to the judgment of the Member State of origin.
36. Next, as the Advocate General pointed out in point 35 of her Opinion, since the court or authority competent to issue that certificate is not necessarily the same as that which gave the judgment whose enforcement is sought, that information can only have prima facie value. That follows also from the fact that production of the certificate is not obligatory, since in its absence in accordance with Article 55 of Regulation No 44/2001, the court in the Member State in which enforcement is sought which has jurisdiction to issue the declaration of enforceability may accept an equivalent document or, if it considers that it has sufficient information, dispense with requesting its production.
37. Finally, as the Advocate General also observed in point 44 of her Opinion, it must be stated that, as is clear from the wording of Annex V to the regulation, the information contained in the certificate is limited to ‘[d]ate of service of the document instituting the proceedings where judgment was given in default of appearance’, without mentioning any other information which helps to ascertain whether the defendant was in a position to defend himself such as, in particular, the means of service or the address where service was effected.
38. It follows that, when examining the ground for challenge set out in Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, the court of the Member State in which enforcement is sought has jurisdiction to carry out an independent assessment of all the evidence and thereby ascertain, where necessary, whether that evidence is consistent with the information in the certificate, for the purpose of establishing, first, whether the defendant in default of appearance was served with the document instituting proceedings and, second, if service was effected in sufficient time and in such a way as to enable him to arrange for his defence.
39. That finding is confirmed by the objectives pursued by Regulation No 44/2001.
40. In that connection, as is clear from recitals 16 and 17 in the preamble to the regulation, the rules on recognition and enforcement laid down by that regulation are based on mutual trust in the administration of justice in the European Union. Such trust requires that judicial decisions delivered in one Member State are not only recognised automatically in another Member State, but also that the procedure for making those decisions enforceable in that Member State is efficient and rapid (see, Prism Investments , paragraph 27).
41. In that context, the function ascribed to the certificate is specifically to facilitate, in the first stage of the procedure, the adoption of the declaration of enforceability of the judgment given in the Member State of origin, making its delivery almost automatic, as is expressly stated in recital 17 in the preamble to Regulation No 44/2001.
42. However, as is clear from settled case-law, that objective cannot be attained by undermining in any way the right to a fair hearing (see, to that effect, ASML , paragraphs 23 and 24 and the case-law cited).
43. In that connection, the Court has already held that it is apparent from recitals 16 to 18 in the preamble to Regulation No 44/2001 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, and, on the other, 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 (see, to that effect, Case C-420/07 Apostolides [2009] ECR I-3571, paragraph 73).
44. It is in the second stage of the procedure opened in the Member State in which enforcement is sought, which is triggered only if the defendant brings an appeal against the declaration of enforceability, that Regulation No 44/2001 provides, as set out in paragraph 32 of this judgment, for a double review seeking to ensure, in particular, respect for the rights of defence of the defendant in default not only during the initial proceedings in the Member State of origin (see, to that effect, ASML , paragraph 30), but also during the enforcement proceedings in the requested Member State (see, to that effect, ASML , paragraph 31).
45. Thus, limiting the scope of the power of review which the court in the Member State in which enforcement is sought has in that phase, solely because the certificate has been produced, would amount to rendering the review that that court must undertake devoid of any effectiveness and, therefore, to preventing the attainment of the objective of ensuring that the rights of the defence, referred to by that regulation and set out in recital 18 in the preamble thereto, are respected.
46. Having regard to all of the foregoing considerations, the answer to the first question is that Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, read in conjunction with recitals 16 and 17 in the preamble, must be interpreted as meaning that, where the defendant brings an action against the declaration of enforceability of a judgment given in default of appearance in the Member State of origin which is accompanied by the certificate, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence. The second question
47. By its second question, the referring court asks essentially whether Article 34(1) of Regulation No 44/2001, to which Article 45(1) refers, enables the court of the Member State in which enforcement is sought to refuse enforcement of a judgment given in default of appearance, which disposes of the substance of the case but which does not contain any assessment of the subject-matter or the basis of the action and which is devoid of any argument on the merits thereof, on the basis of the clause relating to public policy on the ground that it infringes the right of the defendant to a fair trial referred to in Article 47 of the Charter.
48. As a preliminary point, it should be recalled that since Article 34 of Regulation No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation, the public-policy clause in Article 34(1) of the regulation may be relied on only in exceptional cases (see, to that effect, Apostolides , paragraph 55 and the case-law cited).
49. In that context, while the Member States remain in principle free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter of interpretation of that regulation (see Case C-7/98 Krombach [2000] ECR I-1935, paragraph 22; Case C-38/98 Renault [2000] ECR I-2973, paragraph 27; and Apostolides , paragraph 56). Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from another Member State (see, Krombach , paragraph 23; Renault , paragraph 28; and Apostolides , paragraph 57).
50. In that connection, it must be observed that, by disallowing any review of a foreign judgment as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit the court of the State in which enforcement is sought from refusing to recognise or enforce that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which enforcement is sought had it been seised of the dispute. Similarly, the court of the State in which enforcement is sought cannot review the correctness of the findings of law or fact made by the court of the State of origin (see, Krombach , paragraph 36; Renault , paragraph 29; and Apostolides , paragraph 58).
51. Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 can be envisaged only where recognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it would infringe 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 (see Krombach , paragraph 37; Renault , paragraph 30; and Apostolides , paragraph 59).
52. As regards the right to a fair trial, to which reference is made in the question referred, it must be recalled that that right results from the constitutional traditions common to the Member States and was reaffirmed in the second paragraph of Article 47 of the Charter, which corresponds, as is clear from the explanations relating to that article, to Article 6(1) of the ECHR (see Case C-279/09 DEB [2010] ECR I-13849, paragraph 32).
53. In that connection, the Court has held that the observance of the right to a fair trial requires that all judgments be reasoned to enable the defendant to see why judgment has been pronounced against him and to bring an appropriate and effective appeal against it (see, to that effect, ASML , paragraph 28).
54. It follows that the Member State in which enforcement is sought is entitled to take the view, in principle, that a judgment given in default of appearance which does not contain any assessment of the subject-matter, basis and merits of the action, is a restriction on a fundamental right within the legal order of that Member State.
55. In that connection, however, the Court has held that fundamental rights do not constitute unfettered prerogatives and may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a manifest and disproportionate breach of the rights thus guaranteed (see, to that effect, Case C-28/05 Dokter and Others [2006] ECR I-5431, paragraph 75; Case C-394/07 Gambazzi [2009] ECR I-2563, paragraph 29; and Joined Cases C-317/08 to C-320/08 Alassini [2010] ECR I-2213, paragraph 63).
56. In the present case, the United Kingdom Government stated that a judgment given in default of appearance, such as that given by the High Court of Justice in the main proceedings, cannot be obtained until, first, the applicant serves the claim form and the particulars of claim, containing a detailed description of the pleas in law and the material facts, to which the judgment itself impliedly refers, and, second, the defendant, although he has been informed of the legal proceedings instituted against him, does not appear or does not express his intention to submit a defence within the period prescribed.
57. In that procedural system, the adoption of such a default judgment is intended to ensure the swift, effective and cost effective handling of proceedings brought for the recovery of uncontested claims, for the sound administration of justice.
58. It must be acknowledged that such an objective is likely, in itself, to justify a restriction of the right to a fair trial in so far as that right requires that judgments be reasoned.
59. That being the case, it is nevertheless for the referring court to verify, in the light of the specific circumstances in the main proceedings, whether the restriction introduced by the procedural system in England and Wales is not manifestly disproportionate as compared with the aim pursued (see, to that effect, Gambazzi , paragraph 34).
60. From that perspective, it must be held, as the Advocate General noted in point 83 of her Opinion, that the extent of the obligation to give reasons may vary according to the nature of the decision and must be examined, in the light of the proceedings taken as a whole and all the relevant circumstances, taking account of the procedural guarantees surrounding that decision, in order to ascertain whether the latter ensure that the persons concerned have the possibility to bring an appropriate and effective appeal against that decision (see, to that effect, Case C-341/04 Eurofood IFSC [2006] ECR I-3813, paragraph 66, and Gambazzi , paragraphs 40, 45 and 46).
61. That means, in the case in the main proc eedings, that the referring court may determine, as the Advocate General noted in points 88 and 89 of her Opinion, in particular whether and to what extent Trade Agency knew of Seramico Investment’s statement of claim and the remedies available to Trade Agency after the judgment was given, in order to seeks its amendment or to have it set aside
62. Having regard to all of the foregoing considerations, the answer to the second question is that Article 34(1) of Regulation No 44/2001, to which Article 45(1) thereof refers, must be interpreted as meaning that the courts of the Member State in which enforcement is sought may refuse to enforce a judgment given in default of appearance which disposes of the substance of the dispute but which does not contain an assessment of the subject-matter or the basis of the action and which lacks any argument of its merits, only if it appears to the court, after an overall assessment of the proceedings and in the light of all the relevant circumstances, that that judgment is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter, on account of the impossibility of bringing an appropriate and effective appeal against it. Costs
63. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.