Opinion of Mr Advocate General VerLoren van Themaat delivered on 12 February 1985

1 Translated from the Dutch.

2 Jenard Report, Official Journal 1979, C 59, pp. 39-41; Droz, Compétence judiciaire et effets des jugements dans le marché commun, Ì972, paragraphs 261-286; Billow and Böckstiegel, Internationaler Rechtsverkehr in Zivil- und Handelssachen, Art. 20 IV 1, No 606; Kropholler, Europäisches Zivilprozeßrecht, 1982 p. 153.

3 Jenard Report, p. 44.

4 Jenard Report, p. 40; Case 166/80 Klomps v Michel, cited above; Case 228/81 Pendy Plastic, cited above.

5 Jenard Report, p. 44; Droz, paragraphs 258 et seq.; Weser, Convention sur la compétence judiciaire et l'exécution des décisions, paragraphs 275 et seq.

6 Billow and Bbckstiegel, Article 27 III, No 606; Kropholler, p. 198 et seq.

7 Lemaire, Wat brengen de Europese geunificeerde regels betreffende de internationale rechtsbedeling, Weekblad voor Privaatrecht, Notarisambt en Registratie, No 5180, pp. 413-416.

8 Tribunal de grande instance, Paris, 6 January 1982: Cour d'Appel, Paris, 4 January 1983, Revue critique 1984, p. 134 et leq.; sec also Lemaire, p. 413, on Article 20, second paragraph.

9 See also Droz, paragraphs 500-508; BUlow and Böckstiegel Article 27 III 2, No 606.

10 Weser, p. 332; Kropholler, p. 198, paragraph 16.

11 For the benefit of legal practitioners I consider it important to mention in this connection the detailed, though not exhaustive, list of such highly exceptional circumstances to which the Commission referred at the hearing. That list contains the following examples: Persons having two or more addresses, as was the case in Klomps v Michel; businessmen who are travelling abroad; persons on holiday; fishermen on the high seas; a person who unexpectedly has to go to hospital following an accident (which is very exceptional); persons who move house and register in another area, as was the case in Pendy Plastic; persons who temporarily leave their place of residence; persons who definitively leave their place of residence without informing the authorities and without sending a letter to the other party: in other words, the plaintiff knows only that the defendant has gone away but docs not know where he is; a variant of that case, where later on, after service has been effected, the defendant says where he may be found but in so doing takes the responsibility on himself for the fact that process is served on him at his former address; persons who leave their place of residence, inform the authorities, and write in time to the other party to tell him where they have gone to: in other words, the plaintiff knows in advance where the defendant is to be found (in the Commission's view, a very special situation); private persons who are not businessmen and therefore could perhaps enjoy further protection; (this may, in the Commission's view, represent a highly exceptional circumstance); and finally persons who are prevented from entering a defence by extraneous circumstances for which they cannot be held responsible, such as: an accident (caused by somebody else); a general postal strike; a very special reason for leaving the premises (for example, to look after a sick member of the family, fire, and so on); these type of facts could be considered to be very unusual.

12 See also Bülow and Böckstiegel, No 606, Article 27 III 4 (b).