Report for the Hearing in Case C-305/88
I — Facts and procedure
1. Isabelle Lancray SA, the creditor and plaintiff in the main proceedings, is a public limited liability company governed by French law and having its registered office at Neuilly-sur-Seine which had business relations with Peters und Sickert KG, a limited partnership governed by German law having its registered office at Essen, the debtor and defendant in the main proceedings. Those relations were based on a contract of 2 November 1983 in respect of which the parties agreed to apply French law and to give jurisdiction to the Tribunal de commerce (Commercial Court), Nanterre.
2. On 18 July 1986, the creditor obtained an interim order from the Amtsgericht (Local Court) Essen prohibiting the debtor from selling or delivering to third parties any products of the make Isabelle Lancray in its stock. On 30 July 1986, the creditor brought an action before the Tribunal de commerce, Nanterre, in which it asked that court to confirm the tenor of the interim order.
3. By a letter of 30 July 1986, the Public Prosecutor's Office in Nanterre sent to the President of the Landgericht (Regional Court) Essen the summons, drawn up in French, to appear on 18 November 1986 before the French court, together with a form entitled Fiche descriptive des éléments essentiels de l'acte (description of the essential particulars of the writ) printed in French and English and partly completed in French, and requested that they be served. By a certificate of service dated 19 August 1986 the Amtsgericht Essen stated that service had been effected by delivery of the documents to a secretary in the debtor's offices. No German translation was appended to the documents.
4. A summons dated 19 September 1986, drawn up in French, to appear at a hearing before the Tribunal de commerce, Nanterre, on 16 December 1986 was sent to the debtor by registered mail.
5. By judgment of 16 October 1986, the Landgericht Essen quashed the interim order of 18 July 1986 and dismissed the creditor's application for an interim order. By a letter of 11 November 1986, the debtor informed the Tribunal de commerce, Nanterre, of this fact and claimed, further, that the documents had not been duly served on the debtor because they were not accompanied by a certified translation of the summons into German. The French court returned that letter, suggesting that the sender submit, if it wished, a document in French.
6. The debtor did not appear at the hearing on 16 December 1986 and, in a judgment in default of appearance after due service (jugement réputé contradictoire) of 15 January 1987, the Tribunal de commerce, Nanterre, upheld the application. That judgment was served on the debtor by delivery to its managing partner on 9 March 1987.
7. Upon application by the creditor, the Landgericht Essen decided, by order of 6 July 1987, that the judgment of the Tribunal de commerce, Nanterre, of 15 January 1987 was to be recognized in the Federal Republic of Germany.
8. The debtor then claimed that under Article 27(2) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as the Convention) the creditor's application should not have been allowed. The Oberlandesgericht (Higher Regional Court) allowed its appeal and dismissed the creditor's application.
9. In a Rechtsbeschwerde (appeal on a point of law) to the Bundesgerichtshof in accordance with the second paragraph of Article 37 of the Convention, the creditor claimed that the order should be set aside and the debtor's appeal dismissed.
10. Article 27(2) of the version of the Convention applicable, according to the national court, to the dispute in the main proceedings (Official Journal 1978 L 304, p. 36) provides that a judgment may not be recognized, where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence.
11. In its legal analysis of the case, the Bundesgerichtshof considers that the summons was served on the debtor in sufficient time to enable it to arrange for its defence, because the debtor had a period of three months in which to acquaint itself with the content of the documents served in French by having them translated. The court considers, however, that the document instituting the proceedings was not served in due form. In that connection, it points out, first, that the summons was served not on the addressee but by delivery to a secretary in the addressee's offices, that is to say by way of substituted service in accordance with Paragraph 183(1) of the Zivilprozeßordnung (Code of Civil Procedure).
12. It then points out that Article 5 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters (Bundesgesetzblatt \977 II, p. 1452; notice of 23 June 1980, Bundesgesetzblatt II, p. 907) provides that, except in the case covered by subparagraph (b) of the first paragraph of that article, the document may always be served by delivery to an addressee who accepts it voluntarily. But in the present case, service was effected not by delivery to the addressee who accepted it voluntarily but by way of substituted service. That would have been acceptable as formal service only if the document served had been drawn up in, or translated into, German (Paragraph 3 of the Law of 22 December 1977 implementing the Hague Convention of 15 November 1965, Bundesgesetzblatt 1977 I, p. 3105).
13. Nor, finally, was service effected in due form under the Agreement of 6 May 1961 between the Government of the Federal Republic of Germany and the Government of the French Republic on the further simplification of legal transactions and relations pursuant to the Hague Convention relating to Civil Procedure of 1 March 1954 (Notification of 25 July 1961, Bundesgesetzblatt II, p. 1040). Under the first paragraph of Article 3 of the Agreement of 6 May 1961, service could have been effected by delivery of the document to the addressee, provided that the addressee accepted it voluntarily. But service was effected by way of substituted service, and accordingly a translation should have been attached.
14. The Bundesgerichtshof also observes that the Oberlandesgericht held that the defective service could not be cured under Paragraph 187 of the Zivilprozeßordnung, stating that although defective service consisting in the absence of a translation may be cured if the addressee has a command of the foreign language, it cannot if, as in the present case, he does not have a command of that language.
15. The Bundesgerichtshof considered that the dispute raised a question relating to the interpretation of the Convention, and decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
16. The order for reference was received at the Court Registry on 19 October 1988.
17. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations have been submitted by the plaintiff in the main proceedings, represented by Heinz-Joachim Freund, Rechtsanwalt; by the defendant in the main proceedings, represented by Dieter Eikelau, Rechtsanwalt; by the Government of the Federal Republic of Germany, represented by C. Böhmer, acting as Agent; by the Government of the French Republic, represented by Régis de Gouttes, acting as Agent; by the Italian Government, represented by Oscar Fiumara, acting as Agent; and by the Commission, represented by Friedrich-Wilhelm Albrecht and G. Cherubini, acting as Agents.
II — Written observations submitted to the Court
A — The first question
1. The plaintiff in the main proceedings maintains that Article 27(2) of the Convention, properly construed, is concerned primarily not with whether service was effected in due form or in sufficient time but with the aim pursued by those requirements, namely that of enabling the defendant to arrange for his defence. According to that interpretation, even a possible procedural irregularity in service is a bar to recognition of the judgment only in so far as it may have prevented the defendant from arranging for his defence.
2. The defendant in the main proceedings considers, first, that the preliminary ruling which the Court of Justice is asked to give is inappropriate to the nature of the dispute. It states that the plaintiff company has already acknowledged that the service on the debtor was inadequate. It also considers that the French court cannot confirm an interim order of a German Amtsgericht lawfully quashed by the Landgericht on appeal. It takes issue, finally, with the question referred to the Court, which, it claims, is framed in abstract terms and totally ignores the fact that the judgment, as it stands, contains nothing which can be enforced.
3. With regard to the first question, the Government of the Federal Republic of Germany considers that Article 27(2) of the Convention should be interpreted literally to mean that it prohibits the recognition of a foreign judgment given in default of appearance if the defendant was not duly served with the document which instituted the proceedings, regardless of whether service was effected in sufficient time to enable him to arrange his defence.
4. The French Government also refers to the Court's judgment in Case 166/80 Klomps v Michel, cited above, and the report by Mr Jenard (cited above) in connection with the first question, and points out, first, that both of the conditions laid down in Article 27(2) of the Convention — that service must be effected in due form and in sufficient time — must be fulfilled together and that each constitutes an independent ground for refusing recognition.
5. In the view of the Italian Government, the rule in Article 27(2) of the Convention should be interpreted as meaning that the review must be carried out in such a way as to ascertain whether the defendant was given a real opportunity to arrange for his defence. Since, however, the Convention is intended to safeguard the rights of a defendant residing in one Contracting State who has been summoned to appear, but has not entered an appearance, before a court in another Contracting State, and Article 20 requires the original court to ensure in particular that that safeguard has been provided in the State in which the proceedings are conducted, which it can do only in accordance with its own procedural rules, Article 27(2) should be interpreted as meaning that the subsequent review at the time of recognition must be carried out essentially in accordance with the principles underlying the procedural system of the court in which recognition is sought.
6. The Commission refers to the case-law of the Court and the report by P. Jenard (cited above), and considers that Article 27(2) of the Convention lays down two distinct grounds for refusing recognition, either one of which is thus sufficient for refusal of recognition. Consequently, it asserts, recognition and enforcement must be refused not only when service was effected in due form but not in sufficient time, but also when the document instituting the proceedings was served in sufficient time but not in due form.
B — The second question
1. The plaintiff maintains that where the service of the document which instituted the proceedings was defective, recognition should not be refused if it was possible to cure that defect by applying the laws of the State in which recognition is sought.
2. The Gennari Government considers that there can be no question of curing a defect in service unless the rules applicable to the service in question provide for such a possibility. In its view, the international conventions, which override the internal law of the contracting States relating to service, must be applied first. Neither the Hague Convention of 15 November 1965 nor the Agreement of 6 May 1961 between Germany and France provides for curing defects in service.
3. The French Government stresses that the possibilities available for curing the defect under the law of the State addressed can override the effect of Article 27(2) of the Convention and enable a foreign judgment to be recognized.
4. The Commission considers that the courts of both the State in which the judgment was given and the State in which recognition is sought have the power and the duty to verify that service was effected in due form, but that that question should be examined solely in the light of the law to be applied by the court in the State in which the judgment was given.
1 Language of the case: German.