Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Introduction

The Hoge Raad der Nederlanden [Supreme Court of the Netherlands] has referred to the Court a number of questions concerning Article 27 (2) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [hereinafter referred to as the Convention].

Article 27 provides as follows :

This case concerns in particular the rule laid down in that article that the defendant should receive service in sufficient time to ensure, as the Court stated in its judgment of 15 July 1982 in Case 228/81 Pendy Plastic v Pluspunkt [1982] ECR 2723, at p. 2736), that the defendant's rights are effectively protected where recognition is sought in a State other than the State in which it was given. The Hoge Raad summarized the various questions in the following terms :

The facts of the case

In setting out the facts of the case, I shall be guided largely by the lengthy remarks made by the Commission in its observations. I consider, that a detailed description of the facts is warranted since it is necessary to appraise the facts in order to determine whether service was effected in sufficient time. Therefore even a general answer to the questions submitted to the Court must, in order to be of use, take adequate account of those facts.

Mr Bouwman, a Dutch national, signed a lease with Mr Debaecker and his wife Berta Plouvier, both of Belgian nationality, by which he agreed from 15 October 1980 to rent business premises situated at 18 Frankrijklei, Antwerp, where he intended to run an art gallery. On Monday, 21 September 1981, Mr Bouwman left without giving notice or leaving a forwarding address. On Thursday, 24 September 1981, the Debaeckers' lawyer, Mr Debaecker, who according to the Commission is their son, applied to the Vrederechter [Cantonal Judge], Antwerp, for leave to serve a writ on Mr Bouwman at reduced notice, alleging inter alia that Mr Bouwman had left, taking with him all his movable property, like a thief in the night. The Vrederechter granted leave for Mr Bouwman to be summoned to appear at the sitting on Thursday, 1 October 1981, and a writ dated 24 September 1981 was served on the Politiecommissariaat, Antwerp, in accordance with Article 37 of the Gerechtelijk Wetboek [Belgian Judicial Code]. That course was followed because at the time of service the lawyer was not aware of Mr Bouwman's whereabouts. However, he assumed that Mr Bouwman still resided in Antwerp because he was registered there. The writ could not be served at his home address, 18 Frankrijklei, because neither he nor any member of his household was there.

On 25 September 1981 Mr Bouwman sent to the Debaeckers' lawyer a registered letter, in which he repudiated the lease, returned the keys and gave notice that he was to be reached through post office box number 24, 2190 Essen (likewise in Belgium). That letter reached the Debaeckers' lawyer on 28 September 1981. He, however, took no action and therefore left Mr Bouwman unaware that a writ had been served on him at the Politiecommissariaat requiring him to appear before the Vrederechter on 1 October. On 1 October the Vrederechter gave judgment in default against Mr Bouwman, terminating the lease and awarding Mr and Mrs Debaecker compensation of BFR 1072900.

The Commission informed the Court that that judgment was itself served in the same way: as Mr Bouwman was not at his official place of residence in Frankrijklei, it was served at the Politiecommissariaat.

On 18 November the Registrar of the Vredegerecht, Antwerp, established that no appeal had been lodged against the judgment in default. On the same day Mr and Mrs Debaecker lodged an application with the President of the Arrondissementsrechtbank [District Court] in Breda (the Netherlands) for an order freezing Mr Bouwman's bank account in Breda. It was presumably at about that time that Mr Bouwman discovered that proceedings had been brought against him.

On 30 November the President of the Arrondissementsrechtbank, Breda, authorized the enforcement of the judgment of the Vrederechter. Mr Bouwman appealed against that decision to the Arrondissementsrechtbank, Breda, on 6 January 1982. On 12 October 1982 that court held that the appeal was well founded and dismissed the application for the issue of an order for enforcement.

Mr Bouwman based his appeal inter alia on Articles 20 and 27 of the Convention. The Arrondissementsrechtbank found that the claim based on Article 20 could not succeed because that article covered the situation in which a defendant residing in one Contracting State was sued in a court of another Contracting State. In this case, however, Mr Bouwman was sued before a court in the same State and city as that in which he had his residence under Belgian law and the writ did not even have to leave the City of Antwerp in order to be validly served.

As regards Article 27 (2), the Arrondissementsrechtbank found that it was not disputed that the document which instituted the proceedings had been duly served in accordance with Belgian law. However, Mr Bouwman contended that, in order to satisfy the requirement that service should be effected in sufficient time, it would have been necessary not only to effect formal service in the prescribed manner but, in addition, to serve the writ requiring him to appear before the Vrederechter on 1 October 1981 through his post office box number, which was known to the Debaeckers' lawyer from 28 September 1981.

In that connection, in accordance with the judgment of the Court in Case 166/80 (Klomps v Michel [1981] ECR 1593, at pp. 1608 and 1609), the Arrondissementsrechtbank considered whether, in this particular case, there are exceptional circumstances which warrant the conclusion that, although service was duly effected, it was, however, inadequate for the purpose of causing the time needed for the defence to begin to run.

On that question the Arrondissementsrechtbank considered:

Mr and Mrs Debaecker appealed against that judgment to the Hoge Raad, on two grounds which may be summarized as follows. In the first place they claimed that Article 27 (2) was not applicable in this situation since service was effected in accordance with a period specified by the adjudicating court and the defendant's sole residence was within the jurisdiction of that court or in the same country as that court. Secondly, they argued that facts which occurred later — that is to say, after service of the document which instituted the proceedings — did not compel the plaintiff to take further steps to inform the defendants of the impending action, so that if steps were not taken the time required by Article 27 (2) did not begin to run.

The Hoge Raad submitted the following questions to the Court of Justice:

If Question 1 is answered in the negative:

If Question 2 (a) is answered in the negative :

If Question 2 (b) is answered in the affirmative :

2. Protection of the defendant

Before discussing the questions referred to the Court, I consider it appropriate to make certain general remarks on the protection afforded to the defendant by Article 27 (2). That article forms part of Title III of the Convention, concerning Recognition and Enforcement (Articles 25 to 49).

It should first be stated that the provision concerns a defendant against whom judgment has been given by default. The Convention makes special provision for judgments in default, owing to the drastic effects which they have.

The aim of the Convention, which is based on the assumption that the audi alteram partem principle will apply, is to achieve as far as possible the free movement of judgments. For that purpose, it is arranged in such a way as to provide, in Title II, for such safeguards in the original proceedings as to enable a judgment given in one State to be recognized in another State without any special procedure being required (Article 26), subject to an exhaustive list of exceptions set out in Articles 27 and 28.

One of the most important safeguards in the original proceedings is contained in Article 20, which concerns a judgment in default where a defendant domiciled in one Contracting State is sued in a court of another Contracting State. The second paragraph of Article 20 provides that the court is to stay 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 this end. It is clear from the third paragraph that the second paragraph constitutes a transitional provision pending the application of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. It seeks as far as possible to prevent judgment in default from being given against a defendant who is unaware of the proceedings, as is possible by virtue of the systems of fictitious service (such as the remise au parquet) which are accepted in most Contracting States other than Germany.

As the Arrondissementsrechtbank rightly remarked, that article is not applicable in this case. None the less, the fundamental principle of law to which it gives effect, namely the right to a fair hearing, is in my opinion of indirect significance for the interpretation of Article 27 (2), which is somewhat briefer on that point.

At the stage of the recognition of judgments, Article 27 provides for an exception, applicable to judgments in default, to the general scheme of the Convention, whereby judgments given in one Contracting State are recognized in the other Contracting States without any special procedure being required.

Where judgment is given abroad in default of appearance, the Convention affords the defendant double protection. In the first place, the document must have been duly served. In that connection reference must be made to the domestic law of the State in which the judgment was given and to the international conventions on the service of judicial documents. Secondly, even where service was duly effected, recognition may be refused if the court in which recognition is sought considers that the document was not served in sufficient time to enable the defendant to arrange for his defence. The question of sufficient time is a question of fact to be determined by the court. The principle on which Articles 20 and 27 are based is described in legal writings in different ways, but the result is always the same. In France reference is made to the rights of the defence, whilst German writings speak of the principle that the court should hear both sides.

It is, in my view, important to realize that the principle of procedural law in question is intended to afford protection in connection with an improper procedure, namely judgment in default given against a person who is unaware that proceedings are pending. In that regard I also refer to my previous remarks on the indirect significance which I consider that the second paragraph of Article 20 may have for the interpretation of Article 27 (2).

From the judgment of the Court in Klomps v Michel, and in particular paragraphs 19 and 20, I infer that the mandatory examination of the question whether service was effected in sufficient time should also take into account the degree of care to be exercised by the parties. At least that is my understanding of the examples given by the Court of matters which may be taken into account, such as the means employed for effecting service, the relations between the plaintiff and the defendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default. Droz, in a commentary on a French judgment concerning Article 27 (2), appears to share that view, stating inter alia that Article 27 (2)moralise les relations entre les parties en présence.

The judgments of the Court on Article 27 (2) (Case 166/80 Klomps \Michel una Case 228/81 Pendy Plastic v Pluspunkt) may be summarized as follows:

3. The questions submitted by the Hoge Raad

3.1. The first question. The first question asked by the Hoge Raad asks whether the requirement laid down in Article 27 (2) that service should be effected in sufficient time is inapplicable if service was effected within a period prescribed by the court of the State in which the judgment was given and/or the defendant resided in the same country as that court.

3.2. Question 2 (a) asks the Court whether, in determining whether there are exceptional circumstances which warrant the conclusion that, although due service was effected, it was none the less inadequate for the purpose of enabling the defendant to arrange for his defence and consequently causing the time required in Article 27 (2) to begin to run, account is to be taken only of circumstances which existed at the time of service and which the plaintiff could take into consideration at that time.

3.3. Question 2 (b) asks whether the plaintiff can be required as a result of circumstances which arose after service was effected, in particular notification to the plaintiff of the defendant's address, to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by Article 27 (2) does not begin to run.

3.4. In Question 2 (c) the Hoge Raad asks the Court whether, if the defendant is responsible for the failure of the document to reach him, the plaintiff does not have to inform him if, after service is effected, he discovers where the defendant is to be reached.

4. Conclusion

In conclusion I propose that the questions submitted to the Court by the Hoge Raad should be answered as follows:

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).