Portugal / Supreme Court / 134/14.4TBCBC.G1.S1

Caixa AA, SA v BB
Policy area
Justice, freedom and security
Deciding body type
National Court/Tribunal
Decision date
  • Portugal / Supreme Court / 134/14.4TBCBC.G1.S1

    Key facts of the case:

    Caixa AA, S.A. petitioned a District Court in Portugal requesting that a sentence handed down by a French Court in 2007 be enforced. Such sentence condemned BB, an immigrant in France, who breached a loan agreement, to pay a set amount. The applicant requests that the District Court in Portugal condemns BB to pay an additional sum for compensation and interest accrued as from the date of the sentence. The Court a quo ruled favourably on the enforcement of the judgement. BB appealed to the Appellate Court, alleging that the enforcement would be manifestly contrary to Portuguese public policy (or ‘legal order’) because it infringed upon the principle of forbidding defencelessness (i.e. where the defendant is unable to arrange for his defence), an argument that was accepted by the Court of Appeal. Caixa AA then lodged an appeal with the Supreme Court for a review. Pursuant to European Union law, Caixa AA invoked Article 38 (1) of (EC) Regulation 44/2001, while BB referred to Article 34 (1) in the same Regulation.

    Outcome of the case:

    In the opinion of the Supreme Court, the proven facts stated that due to the fact that BB had returned to Portugal, he had defaulted on appearing at the trial in France, nor did he have any representation. Having been sought by the French court in order to inform him of the verdict and having failed to find him, the judgement was then communicated in writing and sent by letter to the address given on the loan agreement. Owing to the fact that BB did not appeal against the Court’s decision, the sentence was deemed enforceable. The Supreme Court ruled that the respondent Member-State judge should stay, or dismiss in the event of an appeal, the enforcement  of a foreign judgement passed in default of the defendant’s appearance if the act or its equivalent leading to the proceedings herewith was not duly communicated to or the notification to the defaulting party was not received in good time and in  such a way as to enable him to arrange for his defence, or unless the defendant failed to commence proceedings in the courts of the Member State of origin to challenge the judgment when it was possible for him to do so.

    The Supreme Court namely applied Regulation 44/2001, Articles 34 (1) and (2), 36, 40 (3), 41, 45, 53 (1) and (2) and 54. It also quoted from the Krombach Judgement of 28/03/2000 for the definition of ‘public policy’, and among others, it referred to the Trade Agency Judgement of 6/09/12 pursuant to the right of the defendant to his defence in a fair trial. The Supreme Court also invoked Article 20 In the Portuguese Constitution, as well as  Article 47(1) and (2) in the Charter of Fundamental Rights of the European Union (ECFR), and Article 6 in the European Charter of Human Rights (ECHR).

    Owing to the fact that there was no document to prove that in the proceedings held in the court of origin, the defendant was cited, notified or contacted, as French law demands, and neither did the sentence handed down refer to it, and due to the fact that there was no evidence showing that the defendant had not challenged the judgement although he could have done so, the enforcement of the decision had to be refused or dismissed in terms of Article 34 in EC Regulation 44/2001.  Therefore, the Supreme Court dismissed the application for the appeal and confirmed the judgement under appeal.

  • Paragraphs referring to EU Charter


    Article 47(1) in the EU Charter of Fundamental Rights lays down that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article, and in the second paragraph, it states that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented in court.