Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The case on which I shall give my views today concerns the interpretation of Article 27, point 2, of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the Convention on Jurisdiction), which is worded as follows:

The interpretation is requested in relation to the following facts.

Mr Michel, the respondent in cassation in the main action, is an estate agent in Neuss. It appears that he has a claim, in respect of his agency fees, for a sum amounting to DM 63270 against Mr Klomps, tne appellant in cassation in the main action. In order to enforce his claim he had recourse to summary proceedings for the recovery of debts and liquidated demands known as Mahnverfahren the details of which I shall discuss later. On the application of Mr Michel a court officer [Rechtspfleger] of the Amtsgericht [Local Court] Krefeld issued on 29 March 1976 a Zahlungsbefehl [order for payment], as it was then called, for DM 63270 together with interest and costs. The method of service on the debtor, which took place on 3 April 1976, was by depositing the order at the Post Office at Willich and by leaving notification of this at the debtor's address, 34 Heiligenweg, Willich. This was considered to be substituted service for the purposes of Article 182 of the German Zivilprozeßordnung [Code of Civil Procedure]. Since an objection to the order for [Widerspruch] payment was not made within the period or three days, the time-limit which was at that time prescribed by Articles 692 and 499 of the Code or Civil Procedure for debtors whose habitual residence was within the district of the court seised of the matter, an enforcement order [Vollstreckungsbefehl] was issued on 9 April 1976. It was served in the same way as the order for payment and the debtor was notified of it on 22 April 1976. In German law the enforcement order constitutes a provisionally enforceable title against which an objection [Einspruch] may be submitted within a period of one week, that is, in this case before 29 April 1976.

However, the objection to the enforcement order was not submitted until 1 September 1976. This gave rise to proceedings before the Amtsgericht [Local Court] Krefeld in the course of which investigations were carried out as to the habitual residence of the debtor since he claimed that he was not in fact residing at 34 Heiligenweg, Willich, but had his habitual residence in the Netherlands, as was established by an entry in the population register of Venlo of 31 December 1971 and another entry in the register of Meijel of 28 August 1976. However, the court found on the basis of the evidence of witnesses that the debtor's habitual residence for the purposes of Article 7 of the German Civil Code [Bürgerliches Gesetzbuch] and of Article 13 of the Code of Civil Procedure was in fact in Willich. The relevant factors on which the court based its finding were that the debtor's wife and children, who were not living apart from him, resided in Willich, the children attended school there, that the debtor ran a business in Willich, that his name was entered in the telephone directory for Willich and that he came regularly to Willich to collect post sent to him there. Accordingly the court considered that the order for payment and enforcement order had been correctly served and, in its judgment of 19 April 1977, which became binding on 12 July 1977, dismissed the objection against the enforcement order as inadmissible on the ground that it was out of time.

In the following year Mr Michel tried to have the order executed against Mr Klomps in the Netherlands. On the application of Mr Klomps the President of the Arrondissementsrechtbank [District Court] Roermond, issued, on the basis of Articles 31, 32 and 34 of the Convention on Jurisdiction, an order dated 27 June 1978, for the enforcement of the above-mentioned order for payment and execution of the enforcement order together with — in relation to the costs — the judgment of the Amtsgericht Krefeld of 19 April 1977. The debtor appealed in accordance with Article 36 or the Convention on Jurisdiction and the Arrondissementsrechtbank Roermond gave judgment on that appeal on 20 September 1979. In that judgment the court found that the order for payment and enforcement order were to be considered as judgments within the meaning of Article 25 of the Convention on Jurisdiction, in particular since an enforcement order is stated by Article 700 of the Code of Civil procedure to be equivalent to a judgment in default declared to be enforceable. The procedure which preceded their issue was not irregular, service was not effected at a wrong address and there were no grounds for refusal of recognition under Article 27, point 2, of the Convention on Jurisdiction. Accordingly, the order for payment and the enforcement order could be recognized as being in accordance with Articles 25 and 26 of the Convention on Jurisdiction and an order for enforcement could be issued in accordance with Article 31 of that Convention. With regard to the judgment of the Amtsgericht Krefeld it was found that it might indeed be recognized that its enforcement was temporarily excluded since the costs were not specified, on which point the debtor's application, which as to the other heads was to be dismissed, must be allowed.

Thereafter the case came before the Hoge Raad [the Supreme Court of the Netherlands] on an appeal in cassation. The appellant based his appeal on Article 27, point 2, of the Convention on Jurisdiction and claimed that the document which instituted the proceedings (the order for payment) was not served in due form, and not in sufficient time to enable him to arrange for his defence. At the time of service of the order for payment and of the enforcement order he was not residing in Willich but in Meijel in the Netherlands. He was entered on the population register in Meijel and was in fact staying there, as were his wife and children at the time. For that reason the order for payment and the enforcement order did not in fact reach him and, since he was unable to present his defence in regard to them in good time, they should not be recognized.

The Hoge Raad decided that the order for payment and the enforcement order must be considered as duly served within the meaning of Article 27, point 2, of the Convention on Jurisdiction. Doubt remained only on the point whether it might be considered that service was in sufficient time for the purposes of the said provision since it had to be accepted that the order for payment and the enforcement order had not in fact reached the debtor because at the time of service he was in fact in the Netherlands, staying there with his wife and children.

Accordingly the Hoge Raad, by a decision of 8 July 1980, stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 3 of the Protocol on the interpretation of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters:

My opinion on these questions is as follows :

1. Let me begin with a few remarks on the course of the Mahnverfahren which at the time was governed, by virtue of the Law of 12 September 1950, by Articles 688 to 703 of the Code of Civil Procedure. The procedure, which is appropriate only to certain claims, was initiated by an informal claim which was not communicated to the opposite party. It was processed by an officer of the Amtsgericht having jurisdiction in the matter [Rechtspfleger] who, after carrying out certain examinations, in particular as to jurisdiction and whether the claim was príma facie well-founded issued an order for payment, a demand enjoining the debtor to satisfy the claim. That order for payment was served by the court of its own motion, thus making it possible, in the absence of the debtor, for substituted service of the kind described above to be effected. An objection [Widerspruch] to the order for payment might be submitted within a period of (at that time) three days where the debtor had his habitual residence within the district of the court, a period of one week being allowed in other cases. In any case, by virtue of Article 694 of the Code of Civil Procedure an objection to the order for payment might be submitted as long as an enforcement order had not been issued. On the submission of an objection to the order for payment the action was transformed into normal adversary proceedings in which, in accordance with Article 596 of the Code of Civil Procedure, the order for payment was treated as equivalent to an originating application. If no such objection was made, then upon application by the creditor, which might be made even before the expiry of the period prescribed in the order for payment, there would be issued an enforcement order in the form of an endorsement on the order for payment, enabling enforcement to be carried out as if there had been a default judgment. An objection [Einspruch] might be lodged within a period, which at that time amounted to one week, against the enforcement order, service of which might be effected in the same manner as service of the order for payment. If no such objection was made no remedy lay against the enforcement order; if an objection was made the case was likewise transformed into a normal court action, which was deemed to have become a pending suit upon service of the order for payment.

2. By its first question the Hoge Raad wishes to ascertain whether the order for payment or the enforcement order must be considered as the document which instituted the proceedings within the meaning of Article 27, point 2, of the Convention on Jurisdiction.

3. The Hoge Raad also wishes to know whether, if it is accepted that the order for payment constitutes the document which instituted the proceedings, as regards the question whether service was effected on the defendant in sufficient time to enable him to arrange for his defence, account is to be taken only of the period within which the objection to the order for payment may be made or also of the further period within which the objection to the enforcement order may be lodged.

4. Following on from these considerations it is further necessary to consider what significance, for the purposes of the application of Article 27, point 2, of the Convention on Jurisdiction, should be ascribed to the fact that the respondent lodged an objection to the enforcement order in the State of the court first seised which was dismissed as inadmissible because it was out of time.

5. The fourth question submitted to the Court by the Hoge Raad, which must now be considered, consists of two parts : it must first of all be considered whether, when the court first seised has reached the conclusion that when the document which instituted the proceedings was served the defendant had his habitual residence in the State of that court and that service was thus duly effected there, a further examination must be carried out by the court in which recognition is sought, namely as to whether service was effected in sufficient time within the meaning of Article 27, point 2, of the Convention on Jurisdiction. If the answer to the first part of the fourth question is in the affirmative the Hoge Raad wishes to know secondly whether the examination may be confined to the question whether the document which instituted the proceedings reached the habitual residence of the defendant in good time or whether it must be ascertained in addition whether service of that nature provided a sufficient guarantee that the document would reach the defendant personally in good time.

6. The last question is solely concerned to clarify the problem whether another answer to the fourth question would be obtained by taking into consideration Article 52 of the Convention on Jurisdiction. That article reads as follows :

7. I accordingly propose that the following answer should be given to the questions submitted by the Hoge Raad :

1 Translated from the German.

2 Translator's note: The relevant provisions of the official English version of the Convention on Jurisdiction published in Official Journal L 304 employ the word domicile, which is accordingly used in direct quotations. Elsewhere the term habitual residence is used throughout this opinion to denote the concept in question.