C-228/81

T H E C O U R T (Second Chamber)

composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges,

Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following

PENDY PLASTIC v PLUSPUNKT

JUDGMENT

The facts of the case, the course of the judgment bv default was transmitted on procedure and the observations sub- 26 March' 1979 to the Netherlands mitted under Article 20 of the Protocol Procureur Generaal for the purpose of on the Statute of the Court of Justice of service. the EEC may be summarized as follows: The document instituting the pro- ceedings and the summons to appear at the hearing were to be served on the I — Facts and p r o c e d u r e defendant at 36 Kaarster Straße, Neuss. Bv a judgment given in default on 14 Since it was not possible to locate the September 1979 the Netherlands court in defendant at the address given, the 's-Hertogenbosch ordered Pluspunkt Amtsgericht [Local Court] Neuss issued Handelsgesellschaft mbH (hereinafter a certificate on 17 May 1979 indicating referred to as "Pluspunkt"), whose that it had not been possible to serve the registered office is in Neuss in the document in question, in accordance Federal Republic of Germany, to pay to with Article 6 (2) of The Hague Pendy Plastic Products BV (hereinafter Convention of 15 November 1965 on the referred to as "Pendy"), whose Service Abroad of Judicial and Extra- registered office is in Heimond in the judicial Documents in Civil or Netherlands, the sum of HFL 29 979.25, Commercial Matters. plus interest at the legally prescribed rate The defendant Pluspunkt did not enter as from 6 December 1978, and the costs an appearance and the Netherlands court of the proceedings up to the date of that in 's-Hertogenbosch, by interlocutory judgment, amounting to HFL 1 042.15. judgment of 8 June 1979 delivered Pendy, wishing to obtain enforcement of pursuant to the second and third that judgment in the Federal Republic of paragraphs of Article 20 of the Brussels Germany, applied to the Landgericht Convention in conjunction with Article [Regional Court] Düsseldorf for an 15 of The Hague Convention, enjoined enforcement order; its application was Pendy to prove that the defendant had rejected and the decision rejecting it had an opportunity to receive the was upheld on appeal by the Ober- summons in sufficient time or that all landesgericht [Higher Regional Court] reasonable steps had been taken in that Düsseldorf, which considered that a respect to enable it to make arrange- precondition for the issue of an order for ments for its defence. It postponed the the enforcement of the Netherlands hearing until 20 July 1979. judgment by default was observance of the procedural rules laid down in Article On that date, the plaintiff lodged an 27 (2) and the second paragraph of extract from the commercial register and Article 34 of the Brussels Convention, a communication from the Amtsgericht namely service on the defendant of [Local Court] Neuss, to the effect that the document which instituted the the files in its possession showed the proceedings. defendant's address as 36 Kaarster Straße. It appears from the case-file that the document instituting the proceedings On the basis of that information, the which culminated in the Netherlands Netherlands court in s'-Hertogenbosch

considered that transmission of the had not changed in relation to document which instituted the pro- Pluspunkt. Therefore, the fact that the ceedings to the Netherlands Procureur Netherlands court considered that Generaal, as evidenced by the document service had been properly effected was drawn up on 26 March 1979, was not sufficient to justify the issue of an sufficient and delivered a judgment in enforcement order under the Brussels default on 14 September 1979, in respect Convention. of which Pendy applied to the German courts for the issue of an enforcement Pendy appealed on a point of law to the

Convention. According to the certificate and Extrajudicial Documents in Civil or issued by the Amtsgericht Neuss, no such Commercial Matters, that the defendant sen-ice was effected since it was had an opportunity to receive the writ in impossible to locate the defendant at the sufficient time to enable him to arrange address given by the plaintiff, the latter for his defence?" being unaware that the defendant had moved its business address in April 1979 In the statement of grounds on which its from 36 Kaarster Straße, Neuss, to 80b order making the reference was based, Erftstraße, Neuss. the Bundesgerichtshof points out that in In the opinion of the Oberlandesgericht, accordance with the second paragraph of the procedural principle of the right to a Article 34 of the Brussels Convention, an proper hearing was breached in this case application for the issue of an enforce- with regard to Pluspunkt, since the ment order may be rejected only for one measures taken by Pendy to discover the of the reasons specified in Articles 27 defendant's business address and to give and 28 of the Convention.

PENDY PLASTIC v PLUSPUNKT

question. However, it might also be According to the German Government, asserted that, regard being had to the the question submitted to the Court terms of the third paragraph of .Article concerns the relationship between Anicie 34 of the Brussels Convention, the result 27 (2) an Article 2C of the Brussels arrived at by the courts of the State in Convention, the third paragraph of which judgment was given, pursuant to Anicie 2C being replaced by Anicie 15 of Article 20 of the Brussels Convention, The Hague Convention of 15 November ought necessarily to be accepted without 1965. further review by the courts of the State in which enforcement is sought. The German Government draws attention to the fact that in its judgment of 16 June 1981 in Klomps v Michel, the The order making the reference was Coun held that before answering the received at the Court Registry on 6 questions submitted "it must be recalled August 1981. that Title II of the Brussels Convention contains provisions regulating directly Pursuant to Article 5 of the Protocol of and in detail the jurisdiction of the 3 June 1971 and in accordance with courts of the State in which judgment -Article 20 of the Protocol on the Statute was given, and also provisions of the Court of Justice, written obser- concerning the verification of that vations were submitted by the jurisdiction and of admissibility.

Amongst represented by its Legal Adviser, Erich these grounds are that contained in Zimmermann, assisted by Wolf-Dietrich Article 27, point 2. which, for the sole Krause-Ablass, of the firm of lawyers purpose of safeguarding the rights of the

defendant, provides for refusal of which to make arrangements for his recognition and, read together with defence. Article 34, for refusal of enforcement, in As regards the task of verifying, pursuant exceptional cases where the guarantees to Article 27 (2) of the Convention, contained in the law of the State in whether service was duly effected, it which the judgment was given and in the appears to be recognized that the court Convention itself are insufficient to in the State in which enforcement is ensure that the defendant has an oppor- sought must carry out thai verification tunity of arranging for his defence having regard to the law of the State in before the court in which judgment was which judgment was given.

The German Government considers that in order to answer that question it is According to the German Government, appropriate to have regard in particular Anicie 27 (2) of the Convention is to the internationally recognized complemented bv Anicie 46 (2) and principle, whereby the court's freedom in Article 48 of the Convention, which its investigation of the facts and its legal provide that a party seeking recognition assessment of a situation is restricted or applying for enforcement of a only in those cases where a limitation is judgment given in default must, as a laia down expressly.

In the opinion of the German As regards verification of service in due Government, since Article 27 (2) of the time, the German Government is of the Brussels Convention places no limitation opinion that the court in the State in on the jurisdiction of the court in the which enforcement is sought is not State in which enforcement is sought, the bound by the legal provisions in force in latter is not bound either by the tindings the State in which judgment was given or of fact or by the findings of law of the by the provisions of its own law. It must Court in the State in which the judgment consider whether the period available to was given. the defendant was in fact sufficient. A That interpretation is confirmed by the consequence thereof might be that, objectives of the Brussels Convention although service was duly effected, it and of the Hague Convention, which might be appropriate to refuse to seek to protect the defendant and entrust recognize the judgment if the defendant such protection to two different couns, did not in fact have sufficient time in the court in the State in which judgment

The second paragraph of Article 34 of The Government of the Federal Republic the Brussels Convention provides that an of Germany proposes that the question application for enforcement may be submitted should be answered as follows: refused only for one of the reasons specified in Articles 27 and 28. The "The finding of fact by the court of the pertinent reason in this case is contained Slate in which judgment was given, in Article 27 (2), which provides that a pursuant to the provisions of the third judgment is not to be recognized "where paragraph of Anicie 20 of the Brussels it was given in default of appearance, if Convention in conjunction with those of the defendant was not duly served with Article 15 of the Hague Convention on the document which instituted the service abroad, to the effect that the proceedings in sufficient time to enable defendant had an opportunity to receive him to arrange for his defence". the writ in time to make arrangments for his defence does not prevent the court in In the opinion of the United Kingdom, the State in which enforcement is sought those clear words operate so as to direct from determining whether it is appro- a court which has made a finding that priate to withhold recognition from the there was no due service, or no service in judgment given in default in the first sufficient time, to refuse recognition. A

JUDGMENT OF 15. 7. 1982 — CASE 228/81

Moreover, tnere are no grounds for considering that the object of .Article 20 is to limit the authority According to the Italian Government, the conferred by Article 27 (2) on the court terms of Articles 27 (2) of the Brussels in the State in which enforcement is Convention indicate that the courts in sought. each Contracting State have not only the power but also tne duty not to recognize a foreign decision in the cases to which According to the United Kingdom, that provision refers. Thus, the coun in which cites the judgment of 21 Mav the State in which enforcement is sought 1980 (Case 125/79 Denilauer v Coucbėt may independently verify whether the Frères [1980] ECR 1553, at p. 1569) it document which instituted the proceed- would be objectionable to oblige the ings was duly served and whether the c o u n in the State in which enforcement period granted to the defendant to is sought to recognize a judgment in arrange tor his defence was sufficient. circumstances where the defendant had been denied the right to a fair hearing in The Italian Government considers that the State in which the judgment was that interpretation of the provisions in given. question is confirmed in panicular by the existence of the third paragraph of

acquaint himself with the content of the instrument served. That interpretation is also confirmed by the fact that enforcement proceedings involve questions of public policy since That point of view is confirmed by M r the right to a fair hearing is an Jenard who states at page 44 of his fundamental, inviolable and sacred right repon on the Brussels Convention which implies the right to adequate time (Official Journal 1979, C 59) that: ". . . and facilities for the preparation of a even where service has been duly defence (Anieles 7 and 8 of the effected, recognition can be refused if Universal Declaration of Human Rights the coun in which recognition is sought approved by the General Assembly of the considers that the document was not United Nations Organization on 10 served in sufficient time to enable the December 1948; Anicie 6 of the defendant to arrange his defence".

PENDY PLÁSTIC « PLUSPUNKT

In the opinion of the Italian service involves the cooperation of the Government, the issue of an order for public authorities of the place of the enforcement of a foreign judgment residence of the addressee which have presupposes that the judgment was given jurisdiction to deliver to him a copy of in properly conducted proceedings. the instrument. The German court may Where tne right to a fair hearing has not not in principle give judgment in default been respected, there can be no question of appearance unless it receives or a judgment delivered in default of conclusive evidence that the instrument appearance. The procedure is irregular has been delivered to the addressee. In and therefore the judgment is void, other countries. in particular the indeed non-existent. Netherlands, a document addressed to a person residing abroad is regarded as served when the process-server transmits That conclusion confirms the view that it to the competent official attached to the court of the State in which the court having jurisdiction or sends it enforcement is sought is empowered to to the Minister for Foreign Affairs. verif>· that the correct procedure has been followed and therefore that the foreign judgment is valid. In view of the foregoing and having regard to the terms of Articles 23 and 27 (2) of the Brussels Convention, which It is therefore appropriate to answer the contain no requirement whatsoever that question submitted in the affirmative. the defendant should have had actual knowledge of the document to be served, it appears that the German courts in The Commission states that, in view of which recognition of a judgment is the terms of Anicie 27 (2) of the Brussels sought must confine themselves to Convention, it is the responsibility of the establishing whether, in any particular court of the State in which enforcement case, the formal requirements laid down is sought to verify that the document by Netherlands law for service by means which instituted the proceedings was of transmission to the competent court duly served in sufficient time. official were observed.

That interpretation appears to have been "The court in which enforcement is confirmed by the Court in its judgment sought may refuse to recognize and of 16 lune 1981 (Case 166/80 Klompi v enforce a judgment in the circumstances Michel) in which it stated that "the court described in Article 27 (2) of the in which enforcement is sought may as a Convention, even though the court of general rule confine itself to examining the State in which the judgment was whether the period, reckoned from the given established in accordance with the date on which service was duly effected, provisions of the third paragraph of allowed the defendant sufficient time to Article 20 of the Convention, in arrange for his defence. It must, conjunction with those of Article 15 of however, consider whether, in a The Hague Convention on Service particular case, there are exceptional Abroad, that the defendant had an circumstances, such as the fact that, opportunity to receive the writ in although service was duly effected, it was sufficient time to arrange for his inadequate for the purposes of causing defence." that time to begin to run".

According to the Commission, it appears from the facts set out in the order I l l — Oral procedure making the reference that service of the document which instituted the proceedings was effected in circum- At the sitting on 6 May 1982, oral stances such as not to allow Pluspunkt argument was presented by the Com- the opportunity to arrange for its mission of the European Communities, defence. Transmission to the represented by Dr W.-D. Krause-Ablass Netherlands Procureur Generaal's office (assistant to Mr Zimmermann), in March 1979 of the document which Rechtsanwalt practising in Düsseldorf. instituted the proceedings in no way enabled the defendant to learn of the The Advocate General delivered his action brought against it. opinion at the sitting on 17 June 1982.

4 The defendant, Pluspunkt, failed to enter an appearance and the court in 's-Henogenbosch enjoined the plaintiff, Pendy, by an interlocutory judgment dated 8 June 1979, to prove that the defendant had been able to receive the summons in sufficient time or that all necessary steps had been taken in that respect to enable it to make arrangements for its defence. At the hearing on 20 July 1979, the plaintiff lodged an extract from the commercial register and a communication from the Amtsgericht Neuss to the effect that the files in its possession showed the defendant's address as 36 Kaarster Straße.

JUDGMENT OF 15 7. 1982 — CASE 228/81

5 On the basis of that information, the coun in 's-Henogenbosch considered that transmission of the document instituting the proceedings to the Officier van Justitie, as evidenced by the document issued on 26 March 1979, was sufficient and delivered a judgment in default on 14 September 1979, in respect of which Pendy applied to the German courts for the issue of an enforcement order.

6 In its order of 8 July 1981 the Bundesgerichtshof restated the findings of the Oberlandesgericht Düsseldorf. According to the latter coun, the measures taken by the plaintiff to discover the defendant's business address and to give proof thereof to the Netherlands court were inappropriate, in view of the fact that the commercial register merely mentions the town where a companv has its registered office, in this instance Neuss, a factor which had not changed in the case of the defendant. Therefore, the procedural principle of the right to a proper hearing was held to have been contravened with regard to the defendant. In the opinion of the Oberlandesgericht, the fact that the Netherlands coun considered service to have been properly effected was not sufficient to justify the issue of an enforcement order under the Brussels Convention.

» Thus the question raised by the Bundesgerichtshof seeks in substance to ascertain whether, under the Brussels Convention, the court of the State in which enforcement is sought may rely on .Article 27 (2) of the Convention in order to justify a refusal to recognize or enforce a judgment given by the court of another State which has acceded to the Convention, or whether it is bound by the conclusions which the adjudicating court drew from the application of the third paragraph of Article 2C of the Brussels Convention and Article 15 of the Hague Convention of 15 November 1965.

i: Article 27 (2) of the Brussels Convention provides that a judgment given by a court of another Contracting State "shall not be recognized . . . 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". Furthermore, Article 46 (2) of the same Convention requires a party seeking recognition or applying for enforcement, in one Member State, of a judgment given in default in another Member State to produce the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings.

1 1 The second paragraph of Article 20 of the Brussels Convention provides that, where a defendant domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an appearance, the court must stav the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to that end. The third paragraph of Article 20 provides that the aforegoing provisions are to be replaced by those of Article 15 of the Hague

n 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 introducing the proceedings was properly served was conferred both on the coun of the original State and on the court of the State in which enforcement is sought. Thus, in accordance with the objective of Article 27 of the Convention, the court of the State in which enforcement is sought must examine the question posed by paragraph (2) of that article, notwithstanding the decision given by the court of the original State on the basis of the second and third paragraphs of Article 20. That examination is subject only to the limitation set by the third paragraph of Article 34 of the Convention to the effect that the foreign judgment may under no circumstances be reviewed as to its substance.

u Accordingly, the answer to the question submitted by the Bundesgerichtshof must be that the court of the State in which enforcement is sought may, if it considers that the conditions laid down by Article 27 (2) of the Brussels Convention are fulfilled, refuse to grant recognition and enforcement of a judgment even though the coun of the State in which the judgment was given regarded it as proven, in accordance with the third paragraph of Article 20 of that Convention in conjunction with Anicie 15 of the Hague Convention of 15 November 1965, that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence.

The court of the State in which enforcement is sought may, if it considers that the conditions laid down by Article 27 (2) of the Brussels Convention are fulfilled, refuse to grant recognition and enforcement of a judgment, even though the court of the State in which the judgment was given regarded it as proven, in accordance with the third paragraph of Article 20 of that Convention in conjunction with Article 15 of the Hague Convention of 15 November 1965, that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence.

Due Chloros Grévisse

Delivered in open court in Luxembourg on 15 July 1982.

For the Registrar

H. A. Rühl O. Due Principal Administrator President of the Second Chamber