The words ‘the document which instituted the proceedings’ contained in article 27, point 2, of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters 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’.
In order to determine whether the defendant has been enabled to arrange for his defence as required by article 27, point 2, the court in 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.
Article 27, point 2, of the 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.
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.
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 in 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.
Citations:
[1981] ECR 1593, C-166/80, R-166/80, [1981] EUECJ R-166/80
Links:
Cited by:
Cited – TSN Kunststoffrecycling Gmbh v Jurgens CA 25-Jan-2002
The claimant sought to register and enforce here, a judgment obtained by default in Germany. It was argued that he had not had, under section 27(2) sufficient opportunity to make a proper reply to the proceedings, and that the Brussels Convention . .
Cited – Olafsson v Foreign and Commonwealth Office QBD 22-Oct-2009
The claimant sought damages after the defendant had negligently failed to arrange for the service of the claimant’s defamation proceedings on a defendant in Iceland leaving the action time barred.
Held: The Claimant had not acted unreasonably . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 21 May 2022; Ref: scu.133100