1. 

However, I should first like to remind the Court of the contents of the provisions which are relevant to these proceedings.

The second paragraph of Article 2C of the Brussels Convention provides that, where a defendant domiciled in one Contracting Sute is sued in a court of another Contracting State and does not enter an appearance:

“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 in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.”

However, in the circumstances of this case, the aforesaid provision is, according to the third paragraph of Article 20, to be replaced by Article 15 of the Hague Convention, which provides that:

“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 —

Each contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled —

The Netherlands has made such a declaration. It was published in the Bundesgesetzblatt (1980, Part II, p. 912) and provides as follows:

“Notwithstanding the provisions of the first paragraph of Article 15 of the Convention, the Netherlands court may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled —

It is also significant that, according to Article 34 of the Brussels Convention, an application to the court of the country in which enforcement is sought for the issue of an enforcement order may be refused only for one of the reasons specified in Articles 27 and 28. Article 27 provides, in so far as it is relevant, that:

“A judgment shall not be recognized:

2. 

In order to solve the problem raised by the Bundesgerichtshof, reference may be made in particular to Case 166/80 ( 2 ), which also involved Article 27 (2). That occurred in connection with the enforcement in the Netherlands of a German order, equivalent to a judgment by default, which had been granted after the German court had established that the document instituting the proceedings had been duly served on the defendant at his address in Germany.

In this regard, it was stated in the preliminary ruling that the purpose of Article 27 (2) of the Brussels Convention is to prevent the recognition and enforcement of judgments if the guarantees provided by the law of the State in which the judgment was given and by the Brussels Convention are not sufficient to ensure that the defendant had an opportunity to arrange for his defence. Under that provision the court of the State in which enforcement is sought must determine whether two requirements were satisfied: the first relates to the proper service of the document and the test is to be carried out by reference both to the law of the State in which the judgment was given and to the Convention, which is binding on that State: the second concerns the time required by the defendant to prepare his defence and necessitates findings of fact. A decision given in the original State in connection with the first of the aforementioned requirements does not release the court of the State in which enforcement is sought from the duty to ascertain whether the second requirement was complied with. The court in which enforcement is sought must establish in each case whether there are exceptional circumstances leading to the conclusion that service was sufficient to enable the defendant to arrange for his defence; for this purpose all the circumstances of the case, including the manner in which service was effected, must be taken into consideration.

Accordingly, it is clear that the fundamental purpose of Article 27 (2) is to ensure that the defendant has an opportunity to prepare a proper defence or, in other words, that the principle of the right to a proper hearing is observed (see in that connection Geimer, Anerkennung gerichtlicher Entscheidungen nach dem EWG-Übereinkommen vom 27. September 1968, Recht der Internationalen Wirtschaft 1976, p. 139 et seq.; Droz, Competence judiciaire et effets des jugements dans le marché commun, 1972, No 50G). Furthermore, in my opinion it is possible to deduce from that judgment a principle that the court in which enforcement is sought must act independently in assessing that matter and is not bound by the findings of the adjudicating court.

3. 

Such a provision is indeed contained in the third paragraph of Article 34 of the Brussels Convention in relation to the review of the substance of a foreign judgment and in the second paragraph of Article 28, which provides as follows:

“In its examination of the grounds of jurisdiction referred to in lhe foregoing paragraph, the court or authority applied to shall be bound by the findings oj fact on which the court of the State in which the ludgment was given based us jurisdiction.”

Article 5 of the Convention of 30 August 1962 between German) and the Netherlands coniavned a provision to the same effect.

However, as far as the inquiry to be conducted under Article 27 (2) of the Brussels Convention is concerned, no restrictions whatsoever are imposed either by that or by any other provision of the Convention. In particular, it does not contain anv proviso in relation to Article 20. Nor may it be said with certainty that the conclusion must perforce be drawn from the lastmentioned aniele — as would be necessary in view of the principle under discussion — that its purpose is to restrict the scope of the inquiry to be conducted by the coun in which enforcement is sought.

4. 

Finally, it is also significant that Article 46 of the Brussels Convention requires, in the case of a judgment given in default, the pany seeking recognition or applying for enforcement of the judgment to produce the document establishing that the pany in default was served with the document instituting the proceedings. This, in panicular the absence of anv restriction, undoubtedly suggests that the coun of the State in which enforcement is sought must examine the manner in which service was effected and cannot therefore simply proceed on the assumption that the tests which were to be conducted by the court in which the judgment by default was given were sufficient.

Moreover, the opinion which I have expressed is also held by various academic lawyers.

I would refer to the abovementioned aniele by Geimer, in which it is emphasized that the questions of public policy which must be considered include the question whether in the foreign proceedings any fundamental procedural requirements which may not be waived in the second State were infringed, and that in conducting such an inquiry the court of the second State is not bound by the findings of fact made by the first court.

Moreover, a number of interesting statements are contained in “Internationaler Rechtsverkehr in Zivil- und Handelssachen, Erläuterungen zu dem Übereinkommen über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entscheidungen in Zivil- und Handelssachen,” by Bülow-Böckstiegel. There it is pointed out (in Note III 4 (a) to Article 27) that, precisely because cenain forms of sen-ice, such as service by public notice, are fictitious, it is required — as a necessary corrective — that service should be effected in sufficient time and that the defendant should have an opportunity to arrange for his defence. It is also stated that, because of the disruptive impact of judgments by default, Amele 27 (2) contains an exception, concerning the proper service of documents, to the rule that the judgment may not be reviewed as to its substance. Moreover, even where the adjudicating coun has already determined, pursuant to the second paragraph of Article 20 of the Brussels Convention or Article 15 of the Hague Convention, that service was effected in sufficient time, the coun in which recognition is sought may. according to Bülow-Böckstiegel, reexamine the question and may arrive at quite different findings (Note III 4 (b) to Article 27).

5. 

Accordingly, I propose that the coun should answer the question submitted by the Bundesgerichtshof as follows:

“Article 27 (2) of the Brussels Convention is to be interpreted as meaning that even where the coun of the State in which the judgment was given established, pursuant to the third paragraph of Article 20 of the Brussels Convention in conjunction with Article 15 of the Hague Convention, that the defendant had an opportunity to receive the writ in sufficient time to enable him to arrange for his defence, the coun of the State in which enforcement is sought must, where the defendant faiied to enter an appearance in the proceedings in the State in which the judgment was given, ascertain independently whether the defendant was duly served with the document instituting the proceedings in sufficient time to enable him to arrange for his defence; if it comes to the conclusion that that was not the case it must refuse to recognize the judgment.”