OPINION OF ADVOCATE GENERAL

FENNELLY delivered on 30 January 1996 (1)

Introduction

Factual and legal context

Article 47 of the Convention states: A party applying for enforcement shall also produce:

8. The Hof van Cassatie is of the view that a ruling on the interpretation of the Convention is necessary for it to give judgment in the appeal before it, and has referred the following questions to the Court, pursuant to Articles 1 to 3 of the Protocol of 3 June 1971 on the interpretation of the Convention (hereinafter the Protocol):

Written observations

10. The appellant argues for an affirmative response to the first question (requiring that proof of service should be produced with an application for enforcement), and an affirmative response to the second. Because the judgment must be enforceable in the State of origin before it can be given effect in any other State, and the appellant submits that the proof of enforceability must appear in the same document as the proof of service, he argues that this document cannot be introduced for the first time on appeal. While the Convention is designed to minimize formalities, the power to dispense with certain documentary proofs found in Article 48 is implicitly excluded in respect of documents not mentioned. The appellant relies upon the Jenard Report on the Convention (6) to suggest that a national court may refuse to entertain an application which is not accompanied by the document in question. The Report gives as the reason for the requirement of service the interest in promoting voluntary compliance. (7) The appellant alleges that he was denied this opportunity by the tardy service of the judgment, after he had appealed against the enforcement order against him, but does not indicate that he was in any way prejudiced as a result.

11. The respondent relies on the objective of the Convention to reduce formalism and to facilitate free movement of judgments, (8) and argues that an application for enforcement is not inadmissible merely because of the omission of accompanying documents. It cites the Jenard Report's statement that enforcement should not be refused, but the court may stay the proceedings and allow the applicant time to produce the documents. (9) Article 48 of the Convention provides only a further degree of flexibility, by allowing the national court to accept equivalent documents to those specified in Articles 46(2) and 47(2), or to dispense with them altogether. Service of a judgment should allow the addressee time voluntarily to comply, so that enforcement proceedings will not be necessary. There has been plenty of time for this, even though service was effected only during the appeal proceedings. The appellant's argument amounts simply to obstruction.

12. The German Government argues that a positive response should be given to the first question (requiring proof of service to be introduced at the latest by the moment of decision at first instance), and a negative response to the second. Although an enforcement order should not be granted at the ex parte stage without securing proof of service of the judgment at issue, the objectives of the Convention permit correction even after this stage, if national law so provides. The Convention should not be so construed as to make enforcement more difficult; Article 48 should not be read as excluding flexibility on points other than those it governs. If the documents specified in Article 47(1) of the Convention cannot be produced even after the applicant is invited to do so, the application should then be rejected. At the appeal stage, the applicant should not be prejudiced by the failure of the court at the ex parte stage to invite such production. Rejection of the possibility of production at the appeal stage would be excessively formalist, as the applicant could simply introduce a new application.

13. The Austrian Government also argues for an affirmative response to the first question (requiring production of proof of service with the original application), but says that the second question does not require a response. It submits that a literal interpretation of Article 47(1) of the Convention requires that proof of service accompany the application when it is deposited. Nothing suggests that this requirement should be distinguished from that of proof of enforceability, which must be produced at the outset.

14. The Commission argues for an affirmative response to the first question (requiring proof of service at the latest by the moment of decision at first instance), but says that there should be a negative response to the second. It invokes the twin objectives of the Convention, as identified by the Court: a flexible and rapid enforcement procedure facilitating free movement of judgments, and the importance of the rights of the defence. The interests of the defence are substantially protected during the initial period, before judgment is reached, in order that the obstacles to the later enforcement phase can be reduced. Furthermore, the Convention does not establish a complete enforcement system; its minimum requirements are supplemented, for example, by national procedural rules. Article 48 of the Convention should not be deemed, merely by implication, to restrict the application of permissive national rules to evidentiary requirements outside the scope of that article, so long as the objectives of the Convention are respected. In the instant case, both flexibility and the interests of the defence are secured if the addressee of a judgment has an opportunity voluntarily to comply with it. Where the judge at the ex parte stage gives a period for production of documents omitted from the original application for enforcement, these objectives are fully secured so long as a reasonable period is also specified for voluntary compliance after service. As a new application for enforcement can be introduced in the event of rejection, it is better to allow the application to be amended than to cause the entire procedure to be restarted.

Analysis

15. I am in broad agreement with the arguments and suggested answers put forward by the respondent, the German Government and the Commission in respect of the Hof van Cassatie's two questions. In my opinion, proof of service should be introduced at the latest by the end of the ex parte enforcement proceedings. None the less, national rules may, in certain circumstances, permit rectification of an omission in this regard after that point. I will address initially the position as regards the ex parte stage of the enforcement procedure, which is the subject-matter of the Hof van Cassatie's first question. I will then discuss the appropriate response to its second question, on the possibility of adding to the application at the appeal or inter partes stage.

(i) The ex parte stage

16. It is clear, I think, that proof of service of the judgment in question should ordinarily accompany the application for its enforcement. As well as being consistent with the wording of the third indent of Article 33 of the Convention, this is obviously in the interest of the party seeking enforcement, as it will minimize delay in securing the order sought. It will also ensure that the addressee of the judgment will have had an opportunity to satisfy the judgment voluntarily; if he does not do so, he must anticipate an application for enforcement. However, a failure, for whatever reason, to comply at this stage with the requirement of service, need not be fatal for the application.

17. Article 33 of the Convention requires that the documents referred to in Articles 46 and 47 be attached to the application. This is a practical direction and will assist the court in its task of checking the proofs required for an order for enforcement. However, the first paragraph of Article 33 of the Convention states that the application procedure is governed by the law of the State in which enforcement is sought. If the law of that State permits attachment of documents to the application during the proceedings, in circumstances which do not undermine other requirements of the Convention, this cannot be said to be excluded by the text of Article 33. Indeed, I would go further and state that the obligation in Article 33 to attach documents to the originating application is, to call in aid a common-law concept, merely directory and not mandatory, and does not affect the validity of the application.

18. The real issue is whether and when the proof in question must be produced. The latest point during the <i>ex parte</i> procedure at which the various documents specified in Articles 46 and 47 of the Convention must be produced may vary with the content and function of those documents. This point is governed in part, of course, by Article 48, which gives the court three options in the event of failure to produce any of the documents referred to in Articles 46(2) and 47(2) of the Convention: it can set a deadline for their production, it can accept equivalent documents, or, where it feels it has sufficient information, it can dispense with them entirely. However, this provision does not, in my view, define exhaustively the procedural discretion of the national court, in particular in respect of documents not governed by it, such as that proving service of the judgment. It is evident that the Convention does not establish a complete system of enforcement. This is clear from the provision for what might nowadays be called procedural subsidiarity in Article 33. Article 48 should be seen as qualifying that principle of subsidiarity, by setting a minimum degree of flexibility, at the discretion of the court, which must be permitted by the applicable national procedural rules. As a special provision, Article 48 cannot be read as limiting in any other way the general principle that national procedural rules, whether flexible or rigid, which respect the essential requirements of the Convention, apply to the enforcement process.

20. Different statements from a passage in the Jenard Report were relied upon to different effect in the written observations. It is worthwhile quoting the passage in full:In the view of the Committee, if the applicant does not produce the required documents, enforcement should not be refused, but the court may stay the proceedings and allow the applicant time to produce the documents. If the documents produced are not sufficient and the court cannot obtain sufficient information, it may refuse to entertain the application.

21. This passage from the Report indicates that the Convention is, at the very least, permissive of flexibility on aspects of the application other than those which benefit from Article 48. As I have already stated, the court does not prejudice the various interests served by the Convention merely by permitting an applicant to rectify his application during the <i>ex parte</i> proceedings. However, the court should respect the interest of the addressee of the judgment (and the general interest) in avoiding enforcement proceedings through voluntary compliance. The Jenard Report indicates that this interest underlies the requirement of proof of service in Article 47(1) of the Convention.

22. The above-quoted passage from the Jenard Report also indicates that there are limits to the flexibility of the court in accommodating the applicant. If, after a period of grace has been given to effect service, the relevant proof cannot be attached to the application, the application should not be entertained. As the addressee of the judgment is not represented, it is for the court to ensure that he is not subjected to an enforcement order in respect of a judgment which he might happily have satisfied without further compulsion. The applicant should bear the consequences, financial or otherwise, of refusal.

23. The position I have taken thus far is reinforced by consideration of the general objectives of the Convention, and by the case-law of the Court on analogous questions. The Court has stated that the object of the Convention is to facilitate free movement of judgments by establishing a simple and rapid procedure in the Contracting State in which application is made for enforcement. This objective is particularly served through the suppression of excessive formalism. The Court has also highlighted the protection of the rights of the defence, while emphasizing that, within the scheme of the Convention, this protection is at its greatest during the court proceedings leading to the original judgment. Where there exists a judgment, against which no substantive or procedural objection can be raised, it is clearly in keeping with the objective of simple and rapid enforcement that the court hearing the application for enforcement should permit errors or omissions in the application to be remedied. No prejudice is done thereby to the rights of the defence. The national court can ensure, in accordance with national law, that the applicant is responsible for any unnecessary costs, and that (in a case such as the present, involving an apparent failure to serve the judgment in question) the addressee of the judgment is given an appropriate period of time to comply voluntarily with the judgment once he is notified of it.

24. In <i>Carron</i> v <i>Germany</i>, the Court gave a preliminary ruling on two points which are relevant in the present context. The applicant in that case had failed to comply with the requirement in the second paragraph of Article 33 of the Convention, that an applicant for an enforcement order must give an address for service of process within the area of jurisdiction of the court applied to. The Court stated that it is clear from Article 33 that the law of the State in which enforcement is sought governs the entire procedure for making the application.

25. The Court went on to hold in <i>Carron</i> that the obligation to give an address for service of process laid down in [Article 33 of the Convention] must be fulfilled in conformity with the rules laid down by the law of the State in which enforcement is sought, and if that law is silent as to the time at which that formality must be observed, no later than the date on which the decision authorizing enforcement is served. As I have already observed, the point in the <i>ex parte</i> proceedings at which procedural requirements must be fulfilled varies with the function of the requirement in question. An address for service of appeal proceedings is clearly not needed until the addressee of an enforcement order is made aware of it; the Convention requires proof of service of a judgment, and of the opportunity of voluntary compliance, before such an order is made. Subject to that different requirement, the point in <i>Carron</i> applies equally to the present case, that national procedural rules apply to all aspects of the enforcement application.

26. To conclude this section, I would answer the first question referred by the Hof van Cassatie as follows:Article 47(1) of the Convention must be interpreted as meaning that the court before which enforcement is sought may order the enforcement of a judgment given in another Contracting State only if proof of service of the judgment is also produced. Where national procedural rules permit, such proof may be accepted at any point before a decision is given on the application, provided that the addressee has had an adequate opportunity after service voluntarily to comply with the judgment, and that the applicant bears responsibility for any unnecessary proceedings.

(ii) The inter partes stage

28. Two decisions of the Court are helpful in answering this point. In <i>Carron</i>, the Court held that the consequences of a failure to comply with the rules on the furnishing of an address for service are, by virtue of Article 33 of the Convention, governed by the law of the State in which enforcement is sought, provided that the aims of the Convention are respected.

29. In <i>Lancray</i>, the Court considered the requirement in Article 27(2) of the Convention that a judgment 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. The Court held that Article 27(2) 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. Therefore, the possibility of rectifying an omission (in that case, to serve a translation of the document instituting the proceedings) is acknowledged even in respect of the first, pre-judgment stage, during which, as we have seen, the protection of the rights of the defence is given greater priority.

31. I would therefore answer the second question referred by the Hof van Cassatie as follows:Article 47(1) of the Convention must be interpreted as meaning that the court before which an appeal is taken against an order for the enforcement of a judgment given in another Contracting State, on the grounds that the order was made without proof of service of the judgment, may confirm that order only if proof of service is produced, and national procedural rules permit such production at the appeal stage, and provided that the addressee has had an adequate opportunity after service voluntarily to comply with the judgment, that the applicant bears responsibility for any unnecessary proceedings, and that the addressee is not otherwise prejudiced by the rectification of the application at that stage.

Conclusion

32. I would therefore answer the questions referred by the Hof van Cassatie as follows: (1) Article 47(1) of the Convention must be interpreted as meaning that the court before which enforcement is sought may order the enforcement of a judgment given in another Contracting State only if proof of service of the judgment is also produced. Where national procedural rules permit, such proof may be accepted at any point before a decision is given on the application, provided that the addressee has had an adequate opportunity after service voluntarily to comply with the judgment, and that the applicant bears responsibility for any unnecessary proceedings. (2) Article 47(1) of the Convention must be interpreted as meaning that the court before which an appeal is taken against an order for the enforcement of a judgment given in another Contracting State, on the grounds that the order was made without proof of service of the judgment, may confirm that order only if proof of service is produced, and national procedural rules permit such production at the appeal stage, and provided that the addressee has had an adequate opportunity after service voluntarily to comply with the judgment, that the applicant bears responsibility for any unnecessary proceedings, and that the addressee is not otherwise prejudiced by the rectification of the application at that stage.

Original language: English.

Published 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 in OJ 1978 L 304, p. 77.

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– The English version of the Protocol can be found in OJ 1978 L 304, p. 50.

– As will be seen below, it is difficult to give a simple positive or negative answer to the first question, as much of the debate in the written observations related to whether one or other of the conditions specified in that question applied, viz. whether proof of service must be produced together with an application for enforcement, or can be introduced at any point before a decision is given on the application.

– OJ 1979 C 59, p. 1, at p. 50.

– Jenard Report, p. 55.

– Jenard Report, p. 42.

– Jenard Report, p. 50.

– The Danish version of Article 47(1) of the Convention uses the singular, *et dokument*. The English, Irish and German versions use the plural: *documents, doiciméid* and *die Urkunden*. The other language versions use terms which can embrace one or a number of documents: French, *tout document*; Dutch, *enig document*; Italian, *qualsiasi documento*; Spanish, *cualquier documento*; Portuguese, *qualquer documento*; Greek, *κάθε έγγραφο*.

– These two alternatives serve to highlight the distinction between the belated existence of a fact, and the belated production of proof of a pre-existing fact.

– See Article 26 of the Convention.

– Jenard Report, p. 55. It has been suggested, by S. O'Malley and A. Layton, *European Civil Practice*, (London, 1989), p. 803, that service should not be treated as a distinct and mandatory substantive requirement of the Convention in cases where service is not necessary for the enforceability of the judgment in question in the originating jurisdiction; otherwise, they argue, the Convention would raise an obstacle to enforcement in other Contracting States which does not obtain in the jurisdiction of origin. There is nothing in the material before the Court to indicate that the judgments at issue in this case were enforceable in Germany without service. None the less, I would like to mark my disagreement with this view. The Convention establishes common criteria for the enforcement of judgments, which are designed, *inter alia*, to protect the rights of the defence. The interest of the defence in an opportunity for voluntary satisfaction, highlighted in the Jenard Report, constitutes a justification for a mandatory requirement of service, even of judgments service of which would not be necessary for domestic enforcement.

– Jenard Report, p. 50.

– In the context of the present reference, it is unnecessary to inquire whether the Convention actually *requires* flexibility in relation to the late production of documents, even where national rules are relatively strict. The judgment in Case 178/83 *Firma P* v *Firma K* [1984] ECR 3033 suggests that it does not.

– Jenard Report, p. 55.

– Case C-183/90 *Van Dalfsen and Others* [1991] ECR I-4743, paragraph 21 of the judgment.

– Article 220 of the Treaty establishing the European Community speaks of the simplification of formalities governing the reciprocal recognition and enforcement of judgments; this undertaking is referred to in the preamble to the Convention.

– Case 166/80 *Klomps* v *Michel* [1981] ECR 1593, paragraph 7 of the judgment; see further Case 125/79 *Denilauler* [1980] ECR 1553, and Case C-123/91 *Minalmet* [1992] ECR I-5661.

– Case 198/85 [1986] ECR 2437.

– The second point in *Carron* will be discussed in the section below dealing with the *inter partes* procedure.

– Paragraph 10 of the judgment.

– Thus, while an enforcement order ordinarily brings with it the possibility of protective measures under Article 39, I reserve my position on whether these would be available in a case where an enforcement order had been secured without the addressee having first been served with the judgment in question.

– Case C-305/88 [1990] ECR I-2725.

– The application of the national procedural rules of the State where enforcement is sought avoids one of the chief criticisms of the decision in *Lancray* , that it required the court adjudicating on enforcement to apply the national procedural rules of another jurisdiction, viz. that in which the judgment originated; see G. Hogan, Procedure and Practice and the Judgments Convention *Irish Journal of European Law 1992* Vol 1, p. 82, at p. 90.

– The court hearing the *ex parte* application is not included among the courts which, pursuant to Article 2 of the Protocol, may request preliminary rulings from the Court of Justice.

– Courts hearing appeals against enforcement pursuant to Article 41 of the Convention are, needless to say, entitled to refer questions, such as those under consideration, which relate to the regularity of procedure in the court below.