CJEU - C 619/10 / Opinion

Trade Agency Ltd v Seramico Investments Ltd
Deciding body type
Court of Justice of the European Union
Deciding body
Opinion of Advocate General
Decision date
  • CJEU - C 619/10 / Opinion

    Key facts of the case:

    1. The reference for a preliminary ruling by the Supreme Court of the Republic of Latvia relates to the interpretation of Article 34(1) and (2) and Article 54 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (2)
    2. Article 34(2) permits the withholding of recognition or enforcement of a default judgment that has been pronounced against a defendant who was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. Article 54 of the regulation provides for the issue by the State in which judgment was given (‘State of origin’) of a certificate showing the various underlying procedural data. This certificate has to be submitted together with the application for enforcement of a judgment. The information to be stated there also includes the date of service of the claim form. In light of this, the question in this case concerns the extent to which the court in the State where enforcement is sought should examine service of the claim form: Is it still entitled, despite the date of service being stated in the certificate, to examine whether the document instituting the proceedings was served or does the certificate have binding legal effect in this respect?
    3. The ground for withholding recognition under Article 34(2) does not apply if the defendant failed to commence proceedings in the State of origin to challenge the default judgment when it was possible for him to do so. This case provides the Court with an opportunity of further clarifying its case-law on the question of when it is incumbent upon the defendant to lodge an appeal in the State of origin. It is necessary to make clear whether the defendant is obliged to do so even if the decision pronounced against it was served on it for the first time in exequatur proceedings.
    4. Finally, the dispute in this case also relates to the public-policy clause in Article 34(1) of Regulation No 44/2001. The referring court would like to know in this connection whether it is compatible with the defendant’s right to fair legal process embodied in Article 47 of the Charter of Fundamental Rights of the European Union(3) for the court of the State of origin to neither examine the substance of a claim before pronouncing judgment in default nor to give further reasons for the default judgment.

    Results (sanctions) and key consequences of the case:

    1. The information as to the service of the document instituting proceedings in a certificate under Article 54 of Regulation No 44/2001 does not have binding legal effect; the court may examine this in the course of proceedings appealing against the declaration of enforceability. The fact that the default judgment was not served on the defendant until the court of enforcement did so together with the declaration of enforceability does not release him from his obligation under Article 34(2) to commence proceedings to challenge the default judgment in the State of origin provided that through the default judgment or other documents served upon him he has been able to acquaint himself with the grounds of the default judgment in order to challenge them effectively.
    2. With regard to the public policy clause in Article 34(1) of Regulation No 44/2001, the court of the State in which enforcement is sought may take account of the fact that the court of the State of origin, without an examination of the legal sufficiency of the claim, has pronounced a default judgment that contains no statement regarding the merits of the claim apart from the fact that the defendant is in default, only if, after undertaking an overall appraisal of the information in the defendant’s possession and the requirements regarding the lodging of an appeal laid down by the law of the State of origin, it should come to the conclusion that the defendant was unable to effectively arrange for his defence due to the absence of a statement of reasons for the decision.
  • Paragraphs referring to EU Charter


    66-80, 82-89