Case C-522/03

Scania Finance France SA

v

Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co.

(Reference for a preliminary ruling from the Oberlandesgericht München)

(Brussels Convention – Recognition and enforcement – Grounds for refusal – Meaning of ‘duly served’)

Opinion of Advocate General Geelhoed delivered on 17 March 2005 ?I 0000

Judgment of the Court (First Chamber), 13 October 2005 

Summary of the Judgment

Convention on Jurisdiction and the Enforcement of Judgments – Recognition and enforcement – Grounds for refusal – Defendant in default of appearance not duly served with the document instituting proceedings in sufficient time – Meaning of duly served – Determined according to the provisions of an international convention applicable between the State in which the judgment was given and the State in which recognition is sought

(Convention of 27 September 1968, Art. 27(2), and Article IV of the Protocol)

Article 27(2) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Accession Conventions of 1978, 1982, 1989 and 1996, and the first paragraph of Article IV of the Protocol annexed to that convention, must be interpreted as meaning that, where a relevant international convention, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, is applicable between the State in which the judgment is given and the State in which recognition is sought, the question whether the document instituting the proceedings was duly served on a defendant in default of appearance must be determined in the light of the provisions of that convention, without prejudice to the use of direct transmission between public officers, where the State in which recognition is sought has not officially objected, in accordance with the second paragraph of Article IV of the Protocol. The two methods of transmitting documents provided for by Article IV of the Protocol annexed to the Convention are exhaustive, in the sense that it is solely where neither of those two options is usable that transmission may be effected in accordance with the law applicable in the court in the State in which the judgment was given.

(see paras 22, 28, 30, operative part)

JUDGMENT OF THE COURT (First Chamber)

13 October 2005 (*)

(Brussels Convention – Recognition and enforcement – Grounds for refusal – Meaning of ‘duly served’)

In Case C-522/03,

REFERENCE for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, from the Oberlandesgericht München (Germany), made by decision of 31 October 2003, registered at the Court on 15 December 2003, in the proceedings

Scania Finance France SA

v

Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co.,

THE COURT (First Chamber),

composed of P. Jann (Rapporteur), President of Chamber, K. Schiemann, K. Lenaerts, E. Juhász and M. Ilešič, Judges,

Advocate General: L.A. Geelhoed,

Registrar: R. Grass,

after considering the observations submitted on behalf of:

–       Scania Finance France SA, by W. Hildmann, Rechtsanwalt,

–       Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co., by A. Vigier, Rechtsanwalt,

–       the Federal Republic of Germany, by R. Wagner, acting as Agent,

–       the French Republic, by A. Bodard-Hermant, A.L. Hare and  G. de Bergues, acting as Agents,

–       the Republic of Austria,  by E. Riedl, acting as Agent,

–       the Commission of the European Communities, by A.‑M. Rouchaud-Joët and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 March 2005,

gives the following

Judgment

1       This reference for a preliminary ruling concerns the interpretation of Article 27(2) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Journal Officiel 1972 L 299, p. 32), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended version – p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1) (‘the Brussels Convention’), and Article IV of the Protocol annexed to that convention.

2       The reference was made in the course of a dispute between Scania Finance France SA (‘Scania’), established in Angers (France), and Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co. (‘Rockinger’), established in Munich (Germany), concerning enforcement in Germany of a judgment delivered by the Cour d’appel d’Amiens (Court of Appeal, Amiens) (France), ordering Rockinger to pay Scania the sum of FRF 615 566.72.

 Legal background

 The Brussels Convention

3       Article 20 of the Brussels Convention, which is in Title II, entitled ‘Jurisdiction’, states:

‘Where a defendant domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of the Convention.

The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

The provisions of the foregoing paragraph shall be replaced by those of Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, if the document instituting the proceedings or notice thereof had to be transmitted abroad in accordance with that Convention.’

4       According to the first paragraph of Article 26 of the Brussels Convention, which is in Title III, entitled ‘Recognition and Enforcement’:

‘A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required.’

5       Article 27(2) of the Convention provides none the less that a judgment delivered in a Contracting State is not to be recognised in other Contracting States ‘where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence.’

6       Article IV of the Protocol annexed to the Brussels Convention, which, according to Article 65 of the Convention, forms an integral part thereof, states:

‘Judicial and extrajudicial documents drawn up in one Contracting State which have to be served on persons in another Contracting State shall be transmitted in accordance with the procedures laid down in the conventions and agreements concluded between the Contracting States.

Unless the State in which service is to take place objects by declaration to the Secretary-General of the Council of the European Communities, such documents may also be sent by the appropriate public officers of the State in which the document has been drawn up directly to the appropriate public officers of the State in which the addressee is to be found. In this case the officer of the State of origin shall send a copy of the document to the officer of the State applied to who is competent to forward it to the addressee. The document shall be forwarded in the manner specified by the law of the State applied to. The forwarding shall be recorded by a certificate sent directly to the officer of the State of origin.’

 The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘the Hague Convention’)

7       According to Article 1, the Hague Convention is applicable, in civil and commercial matters, to all cases where there is occasion to transmit a judicial or extrajudicial document for service abroad.

8       Article 15 of the Hague Convention states:

‘Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present convention, and the defendant has not appeared, judgment shall not be given until it is established that:

(a)      the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

(b)      the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

…’

 National law

9       Pursuant to Article 684 of the new French New Civil Procedure Code service of a document addressed to a person domiciled abroad is made on the public prosecutor’s office. According to Article 685, service is effected by a bailiff of the court who lodges two copies of the document with the public prosecutor’s office. The latter stamps the original document and forwards the copies to the Ministry of Justice for the purpose of transmission. Pursuant to Article 686 of the New Civil Procedure Code the bailiff must send to the addressee on the same day or, at the latest on the first working day, by registered letter with a notice of delivery, a certified copy of the document served. According to Article 683, those provisions do not affect the application of treaties which provide for another method of service.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

10     Scania sued Rockinger before the Cour d’appel d’Amiens. The service of the document instituting the proceedings was effected by lodging it with the public prosecutor’s office.

11     A German judicial officer was responsible for forwarding that document to Rockinger. Rockinger objected to such service, in particular on the ground that that document was not translated into German. Rockinger then received another copy of that document by post, but again without an accompanying German translation.

12     By judgment of 8 September 2000, the Cour d’appel d’Amiens ordered Rockinger, which did not enter an appearance, to pay Scania the sum of FRF 615 566.72.

13     On Scania’s application, the Landgericht München I, by decision of 3 April 2002, ordered the enforcement of the judgment of the Cour d’appel d’Amiens. Rockinger appealed to the Oberlandesgericht München, which decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Is Article 27(2) of the [Brussels] Convention and the first paragraph of Article IV of the Protocol … to be interpreted as meaning that judicial documents may be served on a defendant, who at the time of service of the document instituting the proceedings is domiciled in a Contracting State other than the State of the court seised, only in accordance with the conventions concluded between the Contracting States?

(2)      If not, is Article 12 EC to be interpreted as precluding a national rule under which service of a judicial document on a defendant who, at the time of the service, is domiciled in another Member State is deemed constituted by a domestic service whereby the bailiff of the court lodges the document instituting the proceedings with the public prosecution service, which forwards the documents for transfer pursuant to international conventions or by diplomatic means, and, by registered letter with notice of delivery, notifies the foreign party of the service which has been effected?’

 The questions referred for a preliminary ruling

 The first question

14     By its first question the national court asks essentially whether Article 27(2) of the Brussels Convention and the first paragraph of Article IV of the Protocol must be interpreted as meaning that, where a relevant international convention is applicable between the State in which the judgment was given and the State in which enforcement is sought, the question whether the document instituting the proceedings has been duly served on a defendant who has failed to enter an appearance must be determined solely in the light of the provisions of that convention, or whether it may also be determined by reference to the national rules in force in the State in which the judgment was given if the application of those rules has not been excluded by the convention.

15     As a preliminary point it must be recalled that, although according to its preamble the Brussels Convention is intended to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals, it is settled case-law of the Court that it is not permissible to achieve that aim by undermining in any way the right to a fair hearing (Case 49/84 Debaecker and Plouvier [1985] ECR 1779, paragraph 10; Case C-305/88 Lancray [1990] ECR I-2725, paragraph 21; and Case C-7/98 Krombach [2000] ECR I-1935, paragraph 43).

16     From that point of view, Article 27(2) of the Brussels Convention aims to ensure that a judgment is not recognised or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised (Case 166/80 Klomps [1981] ECR 1593, paragraph 9).

17     For that purpose, Article 27(2) provides that a judgment delivered in another Contracting State is not to be recognised 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’.

18     The Brussels Convention does not harmonise the different systems of service abroad of legal documents which are in force in the Contracting States (Case 228/81 Pendy Plastic [1982] ECR 2723, paragraph 13 and Lancray, paragraph 28). However, the first paragraph of Article IV of the Protocol states that judicial documents drawn up in one Contracting State which have to be served on persons in another Contracting State are to be transmitted in accordance with the procedures laid down in the conventions concluded between the Contracting States.

19     It is clear from the wording of that provision that, where there is a convention on the service of judicial documents between the State in which the judgment is given and the State in which enforcement is sought, the question whether the document instituting the proceedings has been duly served must be determined in the light of the provisions of that convention.

20     Scania and the German Government have argued that the first paragraph of Article IV of the Protocol must be interpreted as meaning that it refers also to all the methods of service provided for by the national laws of the States concerned, since their use is not excluded by the conventions concluded between those States.

21     Such an interpretation cannot be accepted.

22     The two paragraphs of Article IV of the Protocol provide for two methods of transmitting documents: the first, according to the methods provided for by the conventions concluded between the Contracting States, the second, directly between public officials, unless the State in which service is to take place objects. The words ‘may also’ used in the second paragraph of Article IV of the Protocol clearly show that those two options for transmission are exhaustive, in the sense that it is solely where neither of those two options is usable that transmission may be effected in accordance with the law applicable in the court in the State in which the judgment was given.

23     The exhaustive nature of the provisions of Article IV of the Protocol is confirmed by the fact that, in order to ensure that the rights of a defendant who fails to enter an appearance are effectively protected, the Brussels Convention confers jurisdiction to determine whether the document instituting the proceedings was duly served not only, at the stage of recognition and enforcement, on the court of the Member State in which enforcement is sought, but also, at the stage of the determination of jurisdiction, on the court of the State in which the judgment was given, which is required by virtue of Article 20 of the Convention to undertake such an assessment (Pendy Plastic, paragraph 13 and Lancray, paragraph 28).

24     For that purpose, the second paragraph of Article 20 of the Brussels Convention provides that where a defendant domiciled in a Contracting State is sued in a court of another Contracting State and fails to enter an appearance 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. By virtue of the third paragraph of Article 20, those provisions are replaced by those of Article 15 of the Hague Convention if the document instituting the proceedings had to be transmitted abroad in accordance with that convention.

25     In the same way as the second paragraph of Article 20 of the Brussels Convention, but in accordance with rules which are far more detailed and precise, Article 15 of the Hague Convention sets out the circumstances in which a document instituting the proceedings may be considered as having been served on a defendant who is domiciled abroad and has failed to enter an appearance (Pendy Plastic, paragraph 12).

26     As the Commission pointed out, since the scheme put in place by the Brussels Convention provides that the court of the State in which the judgment was given and the court of the State in which enforcement is sought both review whether the document instituting the proceedings has been duly served, the logic of that scheme requires that the review takes place, in so far as possible, in the context of the same legal frame of reference. Therefore, if the option available in the second paragraph of Article IV of the Protocol has not been used and the Hague Convention is applicable between the State in which the judgment was given and the State in which enforcement is sought, it is exclusively by reference to the provisions of Article 15 of the Hague Convention, to which the third paragraph of Article 20 of the Brussels Convention refers, that the court of the State in which judgment was given and the court of the State in which enforcement is sought are to determine whether the document instituting the proceedings has been duly served.

27     In the main proceedings, the national court found that the French Republic and the Federal Republic of Germany were both parties to the Hague Convention at the date on which the service in question was effected.

28     It follows that, in order to be regarded as duly served, within the meaning of Article 27(2) of the Brussels Convention, service must have been effected in accordance with the rules of the Hague Convention.

29     It is for the court in which enforcement is sought to determine, for the purposes of recognition and enforcement of the judgment given in the original State, whether the provisions of Article 15 of the Hague Convention were complied with in the proceedings before the court in the original State as regards service on the defendant of the document instituting the proceedings (Pendy Plastic, paragraphs 13 and 14).

30     It follows from all of the foregoing considerations that the answer to the first question must be that Article 27(2) of the Brussels Convention and the first paragraph of Article IV of the Protocol must be interpreted as meaning that, where a relevant international convention is applicable between the State in which the judgment is given and the State in which recognition is sought, the question whether the document instituting the proceedings was duly served on a defendant in default of appearance must be determined in the light of the provisions of that convention, without prejudice to the use of direct transmission between public officers where the State in which recognition is sought has not officially objected, in accordance with the second paragraph of Article IV of the Protocol.

 The second question

31     Given the answer to the first question, there is no need to answer the second question.

 Costs

32     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Article 27 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, and the first paragraph of Article IV of the Protocol annexed to that convention, must be interpreted as meaning that, where a relevant international convention is applicable between the State in which the judgment is given and the State in which recognition is sought, the question whether the document instituting the proceedings was duly served on a defendant in default of appearance must be determined in the light of the provisions of that convention, without prejudice to the use of direct transmission between public officers, where the State in which recognition is sought has not officially objected, in accordance with the second paragraph of Article IV of the Protocol.

[Signatures]

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* Language of the case: German.