C-305/88
ECLI:EU:C:1990:182
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LANCRAY
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 3 May 1990 *
My Lords, governed by German law and established at Essen. The contract was expressed to be subject to French law and conferred juris- diction on the Tribunal de commerce (Commercial Court), Nanterre. Lancray 1. This case arises by way of a reference for subsequently terminated the contract, taking a preliminary ruling from the Bundesge- the view that Peters was no longer richtshof (Federal Court of Justice) under complying with it. In accordance with the Protocol of 3 June 1971 on the inter- Article 24 of the Brussels Convention pretation by the Court of Justice of the (which is the same in both the pre-accession Convention of 27 September 1968 on juris- and post-accession versions), Lancray then diction and the enforcement of judgments in applied to the Amtsgericht (Local Court), civil and commercial matters ('the Brussels Essen, for an interim injunction restraining Convention')· The two questions referred Peters from disposing of any Lancray ask for guidance on the meaning of Article products in its possession. The injunction 27 of the Brussels Convention in the version was granted on 18 July 1986. On 30 July in force prior to the accession thereto of 1986, Lancray commenced proceedings Denmark, Ireland and the United Kingdom. before the Tribunal de commerce, Nanterre, Article 27 is concerned with the circum- seeking confirmation of the injunction stances in which the courts of one granted by the Amtsgericht and certain Contracting State are precluded from recog- additional relief. On the same day, the nizing judgments given by the courts of competent French authorities sent to the another Contracting State. The first President of the Landgericht (Regional question referred to the Court corresponds Court), Essen, Lancray's application and a to that posed by the Bundesgerichtshof in summons, drawn up in French, requiring Case 36/88, which was removed from the Peters to appear before the French court on register after the main action was discon- 18 November 1986. Those documents were tinued. accompanied by a form drawn up in French and English and partly completed in French together with a request that they be served on Peters and that a record of service be returned to the French authorities. The facts
2. The facts of the case are as follows. On 2 November 1983, Isabelle Lancray SA 3. On 19 August 1986, the application and ('Lancray'), a French company having its the form drawn up in English and French registered office at Neuilly-sur-Seine, were handed to a secretary at Peters' entered into an agreement for the exclusive offices. Those documents were not accom- distribution of its products with Peters und panied by translations into German. Peters Sickert KG ('Peters'), a limited partnership was subsequently sent by registered letter a
* Original language English
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further application drawn up in French and should not be recognized in the Federal a summons dated 19 September 1986 to Republic by virtue of Article 27(2) of the appear before the Tribunal de commerce in Brussels Convention. This provides that a Nanterre on 16 December 1986. judgment given in default of appearance by the defendant by a court in one Contracting State shall not be recognized in other Contracting States 'if the defendant was not 4. On 16 October 1986, the Landgericht, duly served with the document which Essen, lifted the injunction granted to instituted the proceedings [or with an equi- Lancray by the Amtsgericht on 18 July. valent document] in sufficient time to enable Peters informed the Tribunal de commerce him to arrange for his defence'. The words of this development by letter dated in parentheses were added on the accession 11 November 1986, in which it also pointed to the Convention of Denmark, Ireland and out that the previous documents had not the United Kingdom to take account of been correctly served as they were not peculiarities in the procedural law of the last accompanied by translations into German. two States and to indicate which documents By a stroke of irony, the Tribunal de must be served for the right to a hearing to commerce returned this letter with a recom- be respected: see the Schlosser Report mendation that a document drawn up in (Official Journal 1979 C 59, p. 71, at French be submitted. pp. 125, 126 and 128).
5. Peters failed to appear before the Tribunal de commerce which, on 8. The Oberlandesgericht took the view 15 January 1987, delivered a decision that, although the application and summons upholding Lancray's application. The to appear before the Tribunal de commerce judgment of the Tribunal de commerce was on 18 November 1986 were delivered to served on Peters' managing partner on Peters sufficiently early for it to prepare its 9 March 1987. defence, they had not been served in accordance with the relevant international conventions on the service abroad of legal documents as they were not accompanied 6. On 6 July 1987, the Landgericht, Essen, by translations into German. Moreover, the ordered that the judgment of the Tribunal Oberlandesgericht did not consider that it de commerce dated 15 January 1987 be was at liberty to apply its national rules on recognized in the Federal Republic of curing defective service since Peters did not Germany and authorized its enforcement in have a command of the language in which certain respects. An appeal against that the documents in question had been drawn ruling brought by Peters before the Ober- up. landesgericht (Higher Regional Court) was successful. Lancray brought a further appeal against the decision of the Oberlandes- gericht before the Bundesgerichtshof, which The questions referred has referred two questions to this Court for a preliminary ruling.
9. On appeal, the Bundesgerichtshof 7. In the main action, Peters claims that the referred the following questions to this judgment of the Tribunal de commerce Court for a preliminary ruling:
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'(1) Is recognition of a judgment to be with the provisions of Title III of the 1968 refused in accordance with Article Convention as amended.' 27(2) of the pre-accession version of the Brussels Convention where the defendant did not enter an appearance and, although he was served with the 11. The six original Contracting States to document which instituted the the Brussels Convention included France proceedings in sufficient time to enable and the Federal Republic of Germany. As him to conduct his defence, the service far as those States are concerned, the was not duly effected? Accession Convention entered into force on 1 November 1986. Lancray instituted proceedings before the Tribunal de commerce in Nanterre on 30 July 1986 and (2) In the event that a judgment where the judgment was given by that court on defendant did not enter an appearance 15 January 1987. It would therefore appear, is not recognized because, although as the Commission points out, that it is the defendant was served with the the amended rules on recognition and document which instituted the pro- enforcement rather than the pre-accession ceedings in sufficient time to enable rules which apply in the present case. him to conduct his defence, the service was not duly effected, does Article 27(2) of the pre-accession version of the Brussels Convention preclude 12. The referring court has not asked for recognition of the judgment even guidance on which version of the Brussels where the laws of the State in which Convention is applicable. However, the recognition is sought permit the defect substance of Article 27(2) was not changed of service to be cured?' in any relevant respect by the Accession Convention. I do not therefore consider it necessary for this Court to specify to which version of the Brussels Convention its ruling 10. Before examining the substance of the relates. In my view the questions referred questions referred, it is necessary to fall to be answered in the same terms consider which version of the Brussels regardless of which version is applicable. Convention is applicable in the main action. In the remainder of this Opinion, I will The original version of that Convention was indicate the changes made by the Accession amended by the Convention of 9 October Convention where necessary. 1978 ('the Accession Convention'), by which Denmark, Ireland and the United Kingdom acceded to it. Articles 34 to 36 of the Accession Convention lay down a 13. Article 27 of the Brussels Convention is number of transitional provisions. The contained in Title III, which is headed second paragraph of Article 34 provides: 'Recognition and Enforcement'. The general rule with regard to recognition is laid down in the first paragraph of Article 26. This provides that 'a judgment given in a 'as between the six Contracting States to the Contracting State shall be recognized in the 1968 Convention, judgments given after the other Contracting States without any special entry into force of this Convention in procedure being required'. Article 27 proceedings instituted before that date shall constitutes an exception to that general rule. be recognized and enforced in accordance It sets out a number of situations in which a
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court in one Contracting State must (not the requirements laid down in Article 27(2) merely may) refuse to recognize a judgment that service must have been effected given by a court in another Contracting properly and in good time are cumulative or State. By virtue of Article 34 of the Brussels whether the first requirement no longer Convention, Article 27 also applies to applies where the second has been satisfied. applications before the courts of one On a literal interpretation, it is clear, at least Contracting State for the enforcement of a from the English and French texts, that judgment given by a court in another both requirements must be satisfied: the Contracting State. Under Article 46(2) of document which instituted the proceedings the Brussels Convention, a party seeking must have been served both properly and in recognition or applying for enforcement of good time if a judgment given in default of a judgment given in default must produce appearance is to be recognized in another 'the original or a certified true copy of the Contracting State. That this was the inter- document which establishes that the party in pretation intended by the authors of the default was served with the document insti- Brussels Convention is apparent from the tuting the proceedings [or with an equi- Jenard Report, which states (at p. 44) that: valent document]' (the words in parentheses were added by the Accession Convention).
'Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection. First, the 14. The purpose of the second paragraph of document must have been duly Article 27 of the Brussels Convention is to served . . . Secondly, even where service has safeguard the rights of the defendant, as the been duly effected, recognition can be Jenard Report (Official Journal 1979 C 59, refused if the court in which recognition is p. 1, at p. 44) makes clear. The Court sought considers that the document was not pointed out in Case 166/80 Klomps served in sufficient time to enable the v Michel [1981] ECR 1593, paragraph 9, defendant to arrange for his defence.' that it is 'intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised'. Although, as an exception The Court itself recognized in Klomps to the general rule laid down in Article 26 v Michel, paragraph 15, that Article 27(2) of the Brussels Convention, Article 27 is not laid down two conditions, both of which to be interpreted extensively, too restrictive had to be satisfied before a judgment given an interpretation might undermine the in default could be recognized. defendant's right to a fair hearing. The Court emphasized in Case 49/84 Debaecker v Bouwman [1985] ECR 1779, para- graph 10, that this was not an acceptable way of achieving the objectives of the 16. Thus, in a case such as that pending before the referring court, recognition must Brussels Convention. in my view be refused where the document instituting the proceedings was not duly served, even though the defendant may in fact have received that document in sufficient time to enable it to arrange its 15. T h e first question referred by the defence. Lancray urges a contrary interpre- Bundesgerichtshof asks essentially w h e t h e r tation on the basis that there is no need t o
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insist on proper service where the defendant State in which the judgment was given, and has in any event had sufficient time to to the international conventions on the prepare its defence. This view is difficult to service abroad of judicial instruments' reconcile with the wording of the French (p. 44). A similar statement is to be found and English versions of Article 27(2) and is in Klomps v Michel, paragraph 15, where the inconsistent with both the intentions of the Court said that this question was to be authors of the Brussels Convention and the determined on the basis of the legislation of Court's case-law. It would also empty the the State in which judgment was given and requirement of due service of any substance. the international conventions binding on The German Government rightly observes that State with regard to the service of that, if that view were adopted, plaintiffs judicial instruments abroad. would be tempted to depart from the usual channels for serving documents and assume responsibility for the service of documents
themselves. This would create considerable uncertainty as to whether documents had in fact been served at all, thereby undermining the uniform application of the Convention's provisions. Moreover, as the Commission points out, defendants would be left in doubt as to whether proceedings which might result in a binding judgment had been commenced and whether it was therefore 18. In cases where a defendant domiciled in necessary to prepare a defence. one Contracting State is sued before a court of another Contracting State and does not enter an appearance, similar issues will have been considered by the court in which judgment was given under the second and third paragraphs of Article 20 of the Brussels Convention. In the present case, it appears to be the third paragraph of Article 20 which is relevant. That provision lays down that, where the document instituting proceedings or notice thereof had to be
17. How, then, is a court before which transmitted abroad in accordance with the recognition of a judgment given in another Hague Convention of 15 November 1965 Contracting State is sought to determine on the service abroad of judicial and extra- whether the document instituting the judicial documents in civil and commercial proceedings was duly served? The first matters, Article 15 thereof is applicable. paragraph of Article IV of the Protocol According to the referring court, this case is annexed to the Brussels Convention governed by the latter convention.
Article provides that 'judicial and extra-judicial 15 provides that where a writ of summons documents drawn up in one Contracting or an equivalent document had to be served State which have to be served in another abroad and the defendant has not entered Contracting State shall be transmitted in an appearance, judgment shall not be given accordance with the procedures laid down until it is established that the document was in the conventions and agreements served on or delivered to the defendant in concluded between the Contracting States'. accordance with certain specified methods The Jenard Report is more specific, stating and that service or delivery was effected in in relation to Anicie 27(2) that 'reference sufficient time to enable the defendant to must be made to the internal law of the arrange for his defence. Contracting States
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have the right to declare that judgment may basis of the second and third paragraphs of be given, even if no certificate of service or Article 20' (paragraph 13). delivery has been received, provided certain conditions are satisfied. The conditions relate to the manner in which the document was transmitted, the time which has elapsed since the date of transmission, and the 20. In my view, the principles applied in efforts that have been made to obtain a those cases offer sufficient guidance to certificate of service or delivery through enable the second question posed by the the competent authorities of the State referring court to be answered.
That addressed. question asks essentially whether a court is required to refuse to recognize a judgment given in another Contracting State where the document instituting proceedings, 19. The fact that, in circumstances such as although received by the defendant in good those of the present case, the court which time, was not correctly served, notwith- gave judgment will have considered the standing the fact that the laws of the State manner in which the document instituting in which recognition is sought permit the proceedings was served on the defendant defect of service to be cured. does not relieve the court in which recog- nition of that judgment is sought of its duty under Article 27(2) to examine this question itself. The Court made this clear in Case 228/81 Pendy Plastic v Pluspunkt 21. I consider that the answer to this [1982] ECR 2723, a case concerned with question is a qualified 'yes'. The rules to be both recognition and enforcement. As the applied in determining whether the Court pointed out in its judgment (see document instituting the proceedings was paragraph 8) and as I indicated above, correctly served are, as already stated, those Article 27 applies to both. In the Pendy of the State in which judgment was given Plastic case, the Court stated : and the provisions of any international conventions on service applicable in that
State. As the Commission suggests, it is only if those rules (which may incorporate by 'Although they do not seek to harmonize reference the rules applicable in the State in the different systems of service abroad of which recognition is sought) permit a defect legal documents which are in force in the of service to be cured that the document Member States, the provisions of the instituting the proceedings can be regarded Brussels Convention are designed to ensure as having been duly served for the purposes that the defendant's rights are effectively of Article 27(2). Otherwise, where recog-
protected. For that reason, jurisdiction to nition or enforcement is sought in several determine whether the document intro- Contracting States, the outcome might ducing the proceedings was properly served depend on the domestic laws of each of was conferred both on the court of the the States concerned and the uniform original State and on the court of the State application of Article 27(2) would be in which enforcement is sought. Thus, in jeopardized. 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 22. The French Government has invited the by the court of the original State on the Court to examine whether the document
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which instituted the proceedings at issue 23. The result is unfortunate for Lancray, here was in fact served improperly. In my who, apparently through no fault of its view, however, the questions referred fall to own, may find itself unable to secure the be answered on the hypothesis that the recognition of a judgment awarded against document instituting proceedings was not a defendant whose case, from the duly served. It is not for this Court, in the procedural point of view, seems somewhat context of a reference for a preliminary lacking in merit. None the less, I believe the ruling, to examine whether this was so in Court's case-law and the intentions of the the particular circumstances of the case authors of the Brussels Convention to be pending before the Bundesgerichtshof. clear. The case emphasizes the need for Whether that document was in fact properly those responsible for the service of judicial served or not is a matter for the national documents abroad to ensure strict courts. compliance with the applicable rules.
Conclusion
24. I therefore consider that the questions referred by the Bundesgerichtshof should be answered as follows:
'(1) Article 27(2) of the Brussels Convention precludes a court in one Contracting State from recognizing a judgment given by a court in a n o t h e r Contracting State in default of appearance by the defendant where the document insti- tuting the proceedings or an equivalent document was n o t duly served on the defendant, even where that d o c u m e n t was received by the defendant in good time for it to arrange its defence.
(2) In deciding whether the document instituting the proceedings or an equivalent document was duly served on the defendant for the purposes of Article 27(2) of the Brussels Convention, a court of a Contracting State which is asked to recognize a judgment given by a court in another C o n t r a c t i n g State must apply the provisions of the internal law of the second State and those of any international conventions on the service of documents a b r o a d which are applicable in that State. A court in the first State may cure defects of service only if permitted by those provisions to d o so.'
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