C-275/94

VAN DER L I N D E N ν BERUFSGENOSSENSCHAFT DER F E I N M E C H A N I K U N D ELEKTROTECHNIK

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 30 January 1996 *

Introduction medical expenses of a person injured in 1973 in a road accident in Germany by a car owned by Roger Van Der Linden, the appel­ lant in the main proceedings (hereinafter 'the appellant'), who lives in Belgium. It obtained a judgment in a German court in 1976 to recoup these costs from the appellant, and 1. This case involves the interpretation of later that year a further judgment requiring the Brussels Convention on Jurisdiction and him to pay its legal costs. Both these judg­ Enforcement of Judgments in Civil and ments were obtained by default. Commercial Matters of 27 September 1968 (hereinafter 'the Convention'). 1 Where a judgment has not been served on its addressee, and an applicant none the less wins an ex parte order for its enforcement in another Contracting State, can the applicant be permitted to effect and to prove service 3. The respondent applied ex parte to the during appeal proceedings instigated by the Rechtbank van Eerste Aanleg, the court addressee on that basis? specified in Article 32 of the Convention, at Bruges, for enforcement of the first German judgment in July 1980 and was permitted in October 1980 to amend its application in a number of respects, including its extension to the second German judgment on costs. Factual and legal context The respondent was granted an enforcement order in respect of both judgments in Febru­ ary 1982. The appellant appealed against this decision in May 1982, pursuant to Arti­ cle 37 of the Convention, to the Rechtbank 2 van Eerste Aanleg at Bruges, relying on the fact that no proof was supplied with the application for enforcement that he had been 2. An insurance provider, the Berufsgenos­ served with the German judgments. It senschaft der Feinmechanik und Elektro­ appears that the court, on examining the technik, the respondent in the main proceed­ appeal, specified a time-limit for the produc­ ings (hereinafter 'the respondent'), paid the tion of proof of service of the judgment. The

appeal was rejected in June 1993, on the 5. Article 33 of the Convention states, in its ground that the respondent had served the first and third paragraphs: German judgments on the appellant in accordance with Belgian law in January 1987, and that the incompleteness of the original application could no longer prevent the con- firmation of the enforcement order. The appellant appealed against this decision in 'The procedure for making the application February 1994 to the Hof van Cassatie, pur- [for enforcement] shall be governed by the suant to Article 37, second indent, of the law of the State in which enforcement is Convention. He submitted that the enforce- sought ment order could not, at the stage of an appeal pursuant to Article 37 of the Conven- tion, be cured of defects arising from the respondent's failure to produce essential proofs with its original application. An extraordinary length of time has passed since this case was commenced, but this has not given rise to any direct question from the national court.

The documents referred to in Articles 46 and 47 shall be attached to the application.'

The present case does not come within that 'A party applying for enforcement shall also dispensing power. It concerns a failure to produce: produce the proof of service of the judgment required by Article 47(1) of the Convention.

1. documents which establish that, according to the law of the State in which it has 8. The Hof van Cassatie is of the view that a been given, the judgment is enforceable ruling on the interpretation of the Conven­ and has been served; tion is necessary for it to give judgment in the appeal before it, and has referred the fol­ lowing questions to the Court, pursuant to Articles 1 to 3 of the Protocol of 3 June 1971 on the interpretation of the Convention (hereinafter 'the Protocol'): 3 2. where appropriate, a document showing that the applicant is in receipt of legal aid in the State in which judgment was given.'

'1. Must Article 47(1) of the Convention of 27 September 1968 between the

7. The first paragraph of Article 48 of the 3 — The English version of the Protocol can be found in Convention provides for a degree of discre­ OJ 1978 L 304. p. 50.

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OPINION O F MR FENNELLY — CASE C-275/94

10. The appellant argues for an affirmative response to the first question (requiring that proof of service should be produced with an application for enforcement), and an affirma- tive response to the second. Because the 2. If the answer to Question 1 is in the judgment must be enforceable in the State of negative 4 must that article be inter- origin before it can be given effect in any preted as meaning that, notwithstanding other State, and the appellant submits that provisions of national law, the require- the proof of enforceability must appear in ment to produce the document is not the same document as the proof of service, satisfied where the decision is served he argues that this document cannot be only after the application was made and introduced for the first time on appeal. the document evidencing service was While the Convention is designed to mini- drawn up and produced only after a mize formalities, the power to dispense with decision was given by the court before certain documentary proofs found in Arti- which enforcement is sought on the cle 48 is implicitly excluded in respect of application and the party against whom documents not mentioned. The appellant enforcement is sought has lodged an relies upon the Jenard Report on the Con- appeal?' vention 5 to suggest that a national court may refuse to entertain an application which is not accompanied by the document in question. The Report gives as the reason for 4 — As will be seen below, it is difficult to give a simple positive the requirement of service the interest in or negative answer to the first question, as much of the debate in the written observations related to whether one or other of the conditions specified in that question applied, viz. whether proof of service must be produced together with an application for enforcement, or can be introduced at any point before a decision is given on the application. 5 — OJ 1979 C 59, p. 1, at p. 50.

promoting voluntary compliance. The question (requiring proof of service to be appellant alleges that he was denied this introduced at the latest by the moment of opportunity by the tardy service of the judg­ decision at first instance), and a negative ment, after he had appealed against the response to the second. Although an enforcement order against him, but does not enforcement order should not be granted at indicate that he was in any way prejudiced as the ex parte stage without securing proof of a result. service of the judgment at issue, the objec­ tives of the Convention permit correction even after this stage, if national law so pro­ vides. The Convention should not be so con­ strued as to make enforcement more diffi­ cult; Article 48 should not be read as excluding flexibility on points other than 11. The respondent relies on the objective of those it governs. If the documents specified the Convention to reduce formalism and to in Article 47(1) of the Convention cannot be facilitate 'free movement' of judgments, 7and produced even after the applicant is invited argues that an application for enforcement is to do so, the application should then be not inadmissible merely because of the omis­ rejected. At the appeal stage, the applicant sion of accompanying documents. It cites the should not be prejudiced by the failure of Jenard Report's statement that 'enforcement the court at the ex parte stage to invite such should not be refused, but the court may production. Rejection of the possibility of stay the proceedings and allow the applicant production at the appeal stage would be time to produce the documents'. 8 Arti­ excessively formalist, as the applicant could cle 48 of the Convention provides only a fur­ simply introduce a new application. ther degree of flexibility, by allowing the national court to accept equivalent docu­ ments to those specified in Articles 46(2) and 47(2), or to dispense with them altogether. Service of a judgment should allow the addressee time voluntarily to comply, so that enforcement proceedings will not be neces­ sary. There has been plenty of time for this, even though service was effected only during the appeal proceedings. The appellant's argu­ ment amounts simply to obstruction.

14. The Commission argues for an affirma- the respondent, the German Government tive response to the first question (requiring and the Commission in respect of the Hof proof of service at the latest by the moment van Cassatie's two questions. In my opinion, of decision at first instance), but says that proof of service should be introduced at the there should be a negative response to the latest by the end of the ex parte enforcement second. It invokes the twin objectives of the proceedings. None the less, national rules Convention, as identified by the Court: a may, in certain circumstances, permit rectifi- flexible and rapid enforcement procedure cation of an omission in this regard after that facilitating free movement of judgments, and point. I will address initially the position as the importance of the rights of the defence. regards the ex parte stage of the enforcement The interests of the defence are substantially procedure, which is the subject-matter of the protected during the initial period, before Hof van Cassatie's first question. I will then judgment is reached, in order that the obsta- discuss the appropriate response to its sec- cles to the later enforcement phase can be ond question, on the possibility of adding to reduced. Furthermore, the Convention does the application at the appeal or inter partes not establish a complete enforcement system; stage. its minimum requirements are supplemented, for example, by national procedural rules. Article 48 of the Convention should not be deemed, merely by implication, to restrict the application of permissive national rules to evidentiary requirements outside the scope of that article, so long as the objectives of the Convention are respected. In the (i) The ex parte stage instant case, both flexibility and the interests of the defence are secured if the addressee of a judgment has an opportunity voluntarily to comply with it. Where the judge at the ex parte stage gives a period for production of documents omitted from the original appli- cation for enforcement, these objectives are fully secured so long as a reasonable period is also specified for voluntary compliance after service. As a new application for 16. It is clear, I think, that proof of service enforcement can be introduced in the event of the judgment in question should ordi- of rejection, it is better to allow the applica- narily accompany the application for its tion to be amended than to cause the entire enforcement. As well as being consistent procedure to be restarted. with the wording of the third indent of Arti- cle 33 of the Convention, this is obviously in the interest of the party seeking enforcement, as it will minimize delay in securing the order sought. It will also ensure that the addressee of the judgment will have had an Analysis opportunity to satisfy the judgment volun- tarily; if he does not do so, he must antici- pate an application for enforcement. How- ever, a failure, for whatever reason, to 15. I am in broad agreement with the argu- comply at this stage with the requirement of ments and suggested answers put forward by service, need not be fatal for the application.

19. I am not convinced by the arguments 18. The real issue is whether and when the either that proof of enforceability and of ser­ proof in question must be produced. The lat­ vice should appear in the same document, or est point during the ex parte procedure at that the requirements as to the point of pro­ which the various documents specified in duction of the one should determine those of Articles 46 and 47 of the Convention must the other. With regard to the first point, the be produced may vary with the content and text of the Convention indicates the possibil­ function of those documents. This point is ity of multiple documents in all but one lan­ governed in part, of course, by Article 48, guage version. 9 Even if the text were in the which gives the court three options in the singular, requiring both proofs to be con­ event of failure to produce any of the docu­ tained in a single document would be exces­ ments referred to in Articles 46(2) and 47(2) sively formalist, and without function under of the Convention: it can set a deadline for their production, it can accept equivalent documents, or, where it feels it has sufficient information, it can dispense with them 9 — The Danish version of Article 47(1) of the Convention uses the singular, et dokument. The English, Irish and German entirely. However, this provision does not, in versions use the plural: documents, doiciméid and die Urkunden. The other language versions use terms which can my view, define exhaustively the procedural embrace one or a number of documents: French, lout docu- discretion of the national court, in particular ment; Dutch, enig document; Italian, qualsiasi documento; Spanish, cualquier documento; Portuguese, qualquer docu- in respect of documents not governed by it, mento; Greek, .

21. This passage from the Report indicates that the Convention is, at the very least, per­ missive of flexibility on aspects of the appli­ cation other than those which benefit from Article 48. 14 As I have already stated, the court does not prejudice the various interests 10 — These two alternatives serve to highlight the distinction served by the Convention merely by permit­ between the belated existence of a fact, and the belated pro­ duction of proof of a pre-existing fact. ting an applicant to rectify his application 11 — See Article 26 of the Convention. during the ex parte proceedings. However, 12 — Jenard Report, p. 55. It has been suggested, by S. O'Malley the court should respect the interest of the and A. Lay ton, European Civil Practice, (London, 1989), p. 803, that service should not be treated as a distinct and addressee of the judgment (and the general mandatory substantive requirement of the Convention in cases where service is not necessary for the enforceability of interest) in avoiding enforcement proceed­ the judgment in question in the originating jurisdiction; ings through voluntary compliance. The otherwise, they argue, the Convention would raise an obstacle to enforcement in other Contracting States which Jenard Report indicates that this interest does not obtain in the jurisdiction of origin. There is noth­ ing in the material before the Court to indicate that the judgments at issue in this case were enforceable in Germany without service. N o n e the less, I would like to mark my disagreement with this view. The Convention establishes common criteria for the enforcement of judgments, which 13 — Jenard Report, p. 50. are designed, inter alia, to protect the rights of the defence. The interest of the defence in an opportunity for voluntary 14 — In the context of the present reference, it is unnecessary to satisfaction, highlighted in the Jenard Report, constitutes a inquire whether the Convention actually requires flexibility justification for a mandatory requirement of service, even in relation to the late production of documents, even where of judgments service of which would not be necessary for national rules are relatively strict. The judgment in Case domestic enforcement. 178/83 Firma Ρ ν Firma K[1984] ECR 3033 suggests that it does not.

23. The position I have taken thus far is 24. In Carrón ν Germany,19 the Court gave reinforced by consideration of the general a preliminary ruling on two points which are objectives of the Convention, and by the relevant in the present context. 20 The appli­ case-law of the Court on analogous ques­ cant in that case had failed to comply with tions. The Court has stated that 'the object the requirement in the second paragraph of of the Convention is to facilitate free move­ Article 33 of the Convention, that an appli­ ment of judgments by establishing a simple cant for an enforcement order must give an and rapid procedure in the Contracting State address for service of process within the area in which application is made for enforce­ of jurisdiction of the court applied to. The ment'. 1 6 This objective is particularly served Court stated that it is clear from Arti­ through the suppression of excessive formal­ cle 33 'that the law of the State in which ism. 17 The Court has also highlighted the enforcement is sought governs the entire protection of the rights of the defence, while procedure for making the application'. 2 1

15 — Jenard Report, p. 55. 18 — Case 166/80 Klamps v Michel [1981] ECR 1593, paragraph 7 of the judgment; see further Case 125/79 Demlauler 16 — Case C-183/90 Van Dalisen and Others [1991]ECR I-4743, [1980] ECR 1553, and Case C-123/91 Mmalmet [1992] paragraph 21 of the judgment. ECRI-566I. 17 — Article 220 of the Treaty establishing the European Com­ 19 — Case 198/85 [1986] ECR 2437. munity speaks of 'the simplification of formalities govern­ ing the reciprocal recognition and enforcement of Įudg- 20 — The second point in Carron will be discussed in the section ments'; this undertaking is referred to in the preamble to below dealing with the inter partes procedure. the Convention. 21 — Paragraph 10 of the judgment.

25. The Court went on to hold in Carrón decision is given on the application, provided that 'the obligation to give an address for that the addressee has had an adequate service of process laid down in [Article 33 of opportunity after service voluntarily to com- the Convention] must be fulfilled in confor- ply with the judgment, and that the applicant mity with the rules laid down by the law of bears responsibility for any unnecessary pro- the State in which enforcement is sought, ceedings. and if that law is silent as to the time at which that formality must be observed, no later than the date on which the decision authorizing enforcement is served'. As I have already observed, the point in the ex parte proceedings at which procedural require- ments must be fulfilled varies with the func- (ii) The inter partes stage tion of the requirement in question. An address for service of appeal proceedings is clearly not needed until the addressee of an enforcement order is made aware of it; the Convention requires proof of service of a judgment, and of the opportunity of volun- tary compliance, before such an order is made. Subject to that different requirement, the point in Carrón applies equally to the 27. The second question referred to the present case, that national procedural rules Court by the Hof van Cassatie relates more apply to all aspects of the enforcement appli- specifically to the facts of the instant case, cation. where the procedural requirements I set out in answer to the first question were not fully observed in the context of the ex parte appli- cation. Can such a defect be cured? It can, in my view, provided, as before, that national procedural rules permit this, and the terms and objectives of the Convention are com- 26. To conclude this section, I would answer plied with. The general interest in the free the first question referred by the Hof van movement of judgments which are, in them- Cassatie as follows: selves, in conformity with the requirements of the Convention, must counter any ten- dency to read the Convention as requiring an over-formalist distinction between the ex parte and inter partes stages in this regard. As long as the position of the addressee of the judgment is not prejudiced by a late attempt to rectify the application during the Article 47(1) of the Convention must be appeal proceedings, 2 2no provision of the interpreted as meaning that the court before which enforcement is sought may order the enforcement of a judgment given in another Contracting State only if proof of service of 22 — Thus, while an enforcement order ordinarily brings with it the judgment is also produced. Where the possibility of protective measures under Article 39, I reserve my position on whether these would be available in national procedural rules permit, such proof a case where an enforcement order had been secured with- out the addressee having first been served with the judg- may be accepted at any point before a ment in question.

Convention prevents the operation of 30. National procedural rules permitting the national rules permitting such rectification. applicant to remedy his application during an appeal pursuant to Article 37 should also, by analogy, be consistent with the Conven- tion, provided that the position of the defence is not thereby prejudiced. 24 I do not accept that permitting the rectification of the application at this stage would encourage negligence on the part of the applicant, or a lack of vigilance on the part of the court on

feared. Interpretative questions may not be referred to the Court at the ex parte stage. 25 The first point at which this can be done is the appeal stage, which suggests that a court in a Contracting State, hearing an appeal pur- suant to Article 37, may seek guidance as to 29. In Lancray, 23 the Court considered the the conduct of the proceedings before it. Of requirement in Article 27(2) of the Conven- course, the same does not apply to an appeal tion that a judgment not be recognized, such as that to the Hof van Cassatie in the where it was given in default of appearance, present case, which is limited by Arti- if the defendant was not duly served with the cle 41 to points of law. 26 document which instituted the proceedings in sufficient time to enable him to arrange for his defence. The Court held that Arti- cle 27(2) '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'.

Justice. 26 — Courts hearing appeals against enforcement pursuant to Article 41 of the Convention are, needless to say, entitled to refer questions, such as those under consideration, which 23 — Case C-305/S8 [1990] ECR I-2725. relate to the regularity of procedure in the court below.

(2) Article 47(1) of the Convention must be interpreted as meaning that the court before which an appeal is taken against an order for the enforcement of a judg- ment given in another Contracting State, on the grounds that the order was made without proof of service of the judgment, may confirm that order only if proof of service is produced, and national procedural rules permit such pro- duction at the appeal stage, and provided that the addressee has had an ade- quate opportunity after service voluntarily to comply with the judgment, that the applicant bears responsibility for any unnecessary proceedings, and that the addressee is not otherwise prejudiced by the rectification of the application at that stage.

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