Case Law 1968 Brussels Convention

Article 27 of the 1968 Brussels Convention

 


Recognition contrary to public policy [Article 27(1)]

ECJ 2 April 2009 ‘Gambazzi v DaimlerChrysler’ (Case C-394/07)

Article 27(1) of the 1968 Brussels Convention must be interpreted as meaning that the court of the State in which enforcement is sought, may take into account, with regard to the public policy clause referred to in that Article, the fact that the court of the State of origin ruled on the applicant’s claims without hearing the defendant, who entered appearance before it but who was excluded from the proceedings by order on the ground that he had not complied with the obligations imposed by an order made earlier in the same proceedings, if, following a comprehensive assessment of the proceedings and in the light of all the circumstances, it appears to it that that exclusion measure constituted a manifest and disproportionate infringement of the defendant’s right to be heard. Review by the national court must relate not only to the circumstances in which the decisions – the enforcement of which is sought – were taken, but also to the circumstances in which, at an earlier stage, the injunctive orders were adopted, and in particular to verifying, first, the legal remedies made available to the defendant and, second, that the abovementioned decisions offered the defendant the possibility of being heard, in compliance with the adversarial principle and the full exercise of the rights of defence (see paras 41, 46, 48, operative part).

 

ECJ 11 May 2000 ‘Renault v Maxicar’ (Case C-38/98, ECR 2000 p. I-02973)

2. While the Contracting States remain free in principle, by virtue of the proviso in Article 27, point 1, of the 1968 Brussels Convention to determine according to their own conception what public policy requires, the limits of that concept are a matter of interpretation of the Convention. Consequently, while it is not for the Court to define the content of the public policy of a Contracting State, it is none the less required to review the limits within which the courts of a Contracting State may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from another Contracting State (see paras 27-28).

3. Recourse to the clause on public policy in Article 27, point 1, of the 1968 Brussels Convention can be envisaged only where recognition or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought in as much as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order ( see para. 30).

4. The court of the State in which enforcement is sought cannot, without undermining the aim of the 1968 Brussels Convention, refuse recognition of a decision emanating from another Contracting State solely on the ground that it considers that national or Community law was misapplied in that decision. On the contrary, it must be considered whether, in such cases, the system of legal remedies in each Contracting State, together with the preliminary ruling procedure provided for in Article 177 of the Treaty (now Article 234 EC), affords a sufficient guarantee to individuals ( see para. 33).

5. Article 27, point 1, of the 1968 Brussels Convention must be interpreted as meaning that a judgment of a court or tribunal of a Contracting State recognising the existence of an intellectual property right in body parts for cars, and conferring on the holder of that right protection by enabling him to prevent third parties trading in another Contracting State from manufacturing, selling, transporting, importing or exporting in that Contracting State such body parts, cannot be considered to be contrary to public policy ( see para. 34 and operative part).

 

ECJ 28 March 2000 ‘Krombach v Bamberski’ (Case C-7/98, ECR 2000 p. I-01935)

1. While the Contracting States in principle remain free, by virtue of the proviso in Article 27, point 1, of the 1968 Brussels Convention, to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter for interpretation of the Convention. Consequently, while it is not for the Court to define the content of the public policy of a Contracting State, it is none the less required to review the limits within which the courts of a Contracting State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from a court in another Contracting State (see paras 22-23).

2. The court of the State in which enforcement is sought cannot, with respect to a defendant domiciled in that State, take account, for the purposes of the public-policy clause in Article 27, point 1, of the Convention of the fact, without more, that the court of the State of origin based its jurisdiction on the nationality of the victim of an offence (see para. 34 and operative part).

3. Recourse to the public-policy clause in Article 27, point 1, of the 1968 Brussels Convention can be envisaged only where recognition or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought in as much as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order (see para. 37).

4. Recourse to the public-policy clause in Article 27, point 1, of the 1968 Brussels Convention must be regarded as being possible in exceptional cases where the guarantees laid down in the legislation of the State of origin and in the Convention itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself before the court of origin, as recognised by the European Convention on Human Rights. Consequently, Article II of the Protocol annexed to the 1968 Brussels Convention, which recognizes the right of persons domiciled in one Contracting State, who are being prosecuted in the criminal courts of another Contracting State of which they are not nationals, to have their defence presented even if they do not appear in person only where the offence in question was not intentionally committed, cannot be construed as precluding the court of the State in which enforcement is sought from being entitled, with respect to a defendant domiciled in that State and prosecuted for an intentional offence, to take account, in relation to the public-policy clause in Article 27, point 1, of the fact that the court of the State of origin refused to allow the defendant to have his defence presented unless he appeared in person ( see paras 44-45 and operative part).

 

 


Judgment given in default of appearance while the defendant was not duly served [Article 27(2)]

ECJ 13 October 2005 ‘Scania v Rockinger’ (Case C-522/03, ECR 2005 p. I-08639)

Article 27(2) of the 1968 Brussels 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 1968 Brussels 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).

 

ECJ 14 October 2004 ‘Mærsk v De Haan en De Boer’ (Case C-39/02, ECR 2004 p. I-09657)

In order for the decision by a court of a Contracting State establishing a liability limitation fund, as provided for under the International Convention of 10 October 1957 relating to the Limitation of the Liability of Owners of Sea-Going Ships, to be recognised in accordance with the 1968 Brussels Convention, the document instituting the proceedings for the establishment of such a fund must have been duly served on or notified to the claimant in good time, even where the latter has appealed against that decision in order to challenge the jurisdiction of the court which delivered it. Where, however, regard being had to the special features of the national law applicable, that decision is to be treated as a document that is equivalent to a document instituting proceedings, it cannot, notwithstanding the fact that it was not previously served on the claimant, be refused recognition in another Contracting State pursuant to Article 27(2) of the 1968 Brussels Convention on condition that it was itself duly notified to or served on the defendant in good time. It is for the court of the State in which enforcement is sought to determine whether notification of the document instituting proceedings by way of registered letter within the context of proceedings for the establishment of a liability limitation fund, which is regarded as due and proper for purposes of the law of the original court and of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, was effected in the due and proper manner and in sufficient time to enable the defendant effectively to arrange its defence.

 

ECJ 10 October 1996 ‘Hendrikman v Magenta’ (Case C-78/95, ECR 1996 p. I-04943)

Where proceedings are initiated against a person without his knowledge and a lawyer appears before the court first seised on his behalf but without his authority, such a person is quite powerless to defend himself and must be regarded as a defendant in default of appearance, within the meaning of Article 27(2) of the 1968 Brussels Convention, even if the proceedings before the court first seised became, in point of form, proceedings inter partes. That conclusion is not affected by the fact that the defendant may apply to have the judgment in question annulled on the ground of lack of representation, since the proper time for a defendant to have an opportunity to defend himself is the time at which proceedings are commenced. Article 27(2) of the Convention therefore applies to judgments given against a defendant who was not duly served with, or notified of, the document instituting proceedings in sufficient time and who was not validly represented during those proceedings, albeit the judgments given were not given in default of appearance because someone purporting to represent the defendant appeared before the court first seised.

 

ECJ 13 July 1995 ‘Hengst v Campese’ (Case C-474/93, ECR 1995 p. I-02113)

The term "document instituting the proceedings or equivalent document" within the meaning of Article 27(2) of the 1968 Brussels Convention means the document or documents which must be duly and timeously served on the defendant in order to enable him to assert his rights before an enforceable judgment is given in the State of origin. The decreto ingiuntivo within the meaning of Book IV of the Italian Code of Civil Procedure (Articles 633 to 656), together with the application instituting the proceedings, must therefore be regarded as "the document which instituted proceedings or ... an equivalent document" within the meaning of that provision, since their joint service starts time running for the defendant to oppose the order and since the plaintiff cannot obtain an enforceable order before the expiry of that time-limit.

 

ECJ 21 April 1993 ‘Sonntag v Waidmann c.s.’ (Case C-172/91, ECR 1993 p. I-01963)

Since non-recognition of a judgment given in another Contracting State for the reasons set out in Article 27(2) of the 1968 Brussels Convention is possible only where the defendant was in default of appearance in the original proceedings, that provision may not be relied upon where the defendant appeared. A defendant is deemed to have appeared for the purposes of Article 27(2) of the Convention where, in connection with a claim for damages made in the context of the criminal proceedings pending before the criminal court, the defendant, through defence counsel of his own choice, answered the criminal charges at the trial but did not express a view on the civil claim, on which oral argument was also submitted in the presence of his counsel.

 

ECJ 12 November 1992 ‘Minalmet v Brandeis’ (Case C-123/91, ECR 1992 p. I-05661)

Article 27(2) of the 1968 Brussels Convention must be interpreted as precluding a judgment given in default of appearance in one Contracting State from being recognized in another Contracting State where the defendant was not duly served with the document which instituted the proceedings, even if he subsequently became aware of the judgment which was given and did not avail himself of the remedies provided for under the code of procedure of the State where the judgment was delivered.

 

ECJ 3 July 1990 ‘Lancray v Peters und Sickert ’ (Case C-305/88, ECR 1990 p. I-02725)

1. The conditions laid down in Article 27(2 ) of the 1968 Brussels Convention, that a defendant who fails to appear must have been served with the document instituting the proceedings in due form and in sufficient time, must both be met in order for a foreign judgment given against that defendant to be recognized. That provision is therefore to be interpreted as meaning that a judgment given in default of appearance may not be recognized where the document instituting the proceedings was not served on the defendant in due form, even though it was served in sufficient time to enable him to arrange for his defence.

2. Article 27(2 ) of the Convention is to be interpreted as meaning that questions concerning the curing of defective service are governed by the law of the State in which judgment was given, including any relevant international agreements.

 

ECJ 11 June 1985 'Gaston c.s. v Bouwman' (Case 49/84, ECR 1985 p. 01779)

The requirement, laid down in Article 27(2) of the 1968 Brussels Convention, that service of the document which instituted the proceedings should have been effected in sufficient time, is applicable where service was effected within a period prescribed by the court of the State in which the judgment was given or where the defendant resided, exclusively or otherwise, within the jurisdiction of that court or in the same country as that court. In examining whether service was effected in sufficient time, the court in which enforcement is sought may take account of exceptional circumstances which arose after service was duly effected. The fact that the plaintiff was apprised of the defendant's new address, after service was effected, and the fact that the defendant was responsible for the failure of the duly served document to reach him, are matters which the court before which enforcement is sought may take into account in assessing whether service was effected in sufficient time.

 

ECJ 15 July 1982 ‘Pendy Plastic v Pluspunkt’ (Case 228/81, ECR 1982 p. 02723)

The court of the State in which enforcement is sought may, if it considers that the conditions laid down by Article 27(2) of the 1968 Brussels Convention are fulfilled, refuse to grant recognition and enforcement of a judgment even though the court of the State in which the judgment was given regarded it as proven, in accordance with the third paragraph of Article 20 of that Convention in conjunction with Article 15 of the Hague Convention of 15 November 1965, that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence.

 

ECJ 16 June 1981 'Klomps v Michel' (Case 166/80, ECR 1981 p. 01593)

1. The words "the document which instituted the proceedings", contained in Article 27, point 2 , of the 1968 Brussels Convention cover any document, such as the order for payment (zahlungsbefehl ) in German law, service of which enables the plaintiff, under the law of the State of the court in which the judgment was given, to obtain in default of appropriate action taken by the defendant, a decision capable of being recognized and enforced under the provisions of the convention. A decision such as the enforcement order (vollstreckungsbefehl ) in German law, which is issued after service of the order for payment has been effected and which is enforceable under the Convention, is not covered by the words "the document which instituted the proceedings".

2. In order to determine whether the defendant has been enabled to arrange for his defence as required by Article 27, point 2, of the 1968 Brussels Convention, the court before which enforcement is sought must take account only of the time, such as that allowed under German law for submitting an objection (widerspruch) to the order for payment, available to the defendant for the purposes of preventing the issue of a judgment in default which is enforceable under the Convention.

3. Article 27, point 2, of the 1968 Brussels Convention, which is addressed exclusively to the court before which proceedings are brought for recognition or enforcement in another Contracting State, remains applicable where the defendant has lodged an objection against the decision given in default and a court in the State in which the judgment was given has declared the objection inadmissible on the ground that the time for making such objection has expired.

4. Even if the court in which the judgment was given has held, in separate adversary proceedings, that service was duly effected, Article 27, point 2, of the Convention still requires the court in which enforcement is sought to examine whether service was effected in sufficient time to enable the defendant to arrange for his defence.

5. Article 27, point 2, of the Convention does not require proof that the document which instituted the proceedings was actually brought to the knowledge of the defendant. As a general rule the court before which enforcement is sought may accordingly confine its examination to ascertaining whether the period reckoned from the date on which service was duly effected allowed the defendant sufficient time to arrange for his defence. Nevertheless the court must consider whether, in a 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 time to begin to run.

 

 


Judgment that is irreconcilable with a judgment given between the same parties in the State in which recognition is sought [Article 27(3)]


ECJ 6 June 2002 ‘Italian Leather v WECO’ (Case C-80/00, ECR 2002 p. I-04995)

1. On a proper construction of Article 27(3) of the 1968 Brussels Convention, a foreign decision on interim measures ordering an obligor not to carry out certain acts is irreconcilable with a decision on interim measures refusing to grant such an order in a dispute between the same parties in the State where recognition is sought (see para. 47, operative part 1).

2. Where a court of the State in which recognition is sought finds that a judgment of a court of another Contracting State is irreconcilable with a judgment given by a court of the former State in a dispute between the same parties, it is required to refuse to recognise the foreign judgment (see para. 52, operative part 2).

 

ECJ 2 June 1994 ‘Solo Kleinmotoren v Boch’ (Case C-414/92, ECR 1994 p. I-02237)

Article 27 of the 1968 Brussels Convention must be interpreted strictly, in as much as it constitutes an obstacle to the achievement of one of its fundamental objectives, which is to facilitate, to the greatest extent possible, the free movement of judgments by providing for a simple and rapid enforcement procedure. Hence, Article 27(3) of the Convention is to be interpreted as meaning that an enforceable settlement reached before a court of the State in which recognition is sought in order to settle legal proceedings which are in progress does not constitute a "judgment" within the meaning of that provision, "given in a dispute between the same parties in the State in which recognition is sought" which, under the Convention, may preclude recognition and enforcement of a judgment given in another Contracting State.

 

ECJ 6 December 1994 ‘Tatry v Maciej Rataj’ (Case C-406/92, ECR 1994 p. I-05439)

The concept of "related actions" defined in the third paragraph of Article 22 of the 1968 Brussels Convention, which must be given an independent interpretation, must be interpreted broadly and, without its being necessary to consider the concept of irreconcilable judgments in Article 27(3) of the Convention, must cover all cases where there is a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive. It is accordingly sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences.

 

ECJ 4 February 1988 'Hoffmann v Krieg' (Case 145/86, ECR 1988 Page 00645)

A foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his conjugal obligations to support her is irreconcilable within the meaning of Article 27(3) of the 1968 Brussels Convention with a national judgment pronouncing the divorce of the spouses.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Law 1968 Brussels Convention

Article 30 of the 1968 Brussels Convention


ECJ 22 November 1977 ‘Diamond Supplies v Luigi Riva’ (Case 43-77, ECR 1977 p. 02175)

1. Because of the differences in the legal concepts of the Member States which are parties to the 1968 Brussels Convention with regard to the distinction between “ordinary” and “extraordinary” appeals, the meaning of the concept of “ordinary appeal” cannot be determined by reference to a national legal system, whether that of the State in which the judgment was given or that of the State in which recognition or enforcement is sought. This concept may therefore be defined solely within the framework of the Convention itself.

2. In view of the structure of Articles 30 and 38 and of their function in the system of the 1968 Brussels Convention, any appeal which is such that it may result in the annulment or the amendment of the judgment which is the subject-matter of the procedure for recognition or enforcement under the Convention and the lodging of which is bound, in the State in which judgment was given, to a period which is laid down by the law and starts to run by virtue of that same judgment constitutes an “ordinary appeal” which has been lodged or may be lodged against a foreign judgment.