| PRACTICE — Foreign judgment — Order for enforcement — Time limit for appealing fixed from date of service — Whether possible to run from date of actual notice of order in case of defective service — Brussels Convention 1968, art 36
Verdoliva v JM van der Hoeven BV (Case C-3/05)
ECJ: President of Chamber Timmermans, Judges Schintgen, Silva de Lapuerta, Arestis and Klučka: 16 February 2006
The period fixed by art 36 of the Brussels Convention for appealing against an order of enforcement of a judgment against a person given in another contracting state began to run from the date of due service effected in accordance with the procedural rules of the state where enforcement was sought, and where such service was absent or defective, the fact that the person had actual notice of the order was not sufficient to start time running.
The Second Chamber of the Court of Justice of the European Communities so held on a reference by the Corte d’appello di Cagliari, Italy for a preliminary ruling on art 36 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, as amended by the Accession Conventions of 1978, 1982 and 1989.
The defendant in proceedings in the Netherlands, who was resident in Italy, sought to appeal against an order by an Italian court authorising enforcement in that country of the judgment against him given in the Netherlands proceedings, but the appeal was dismissed on the ground that it was time-barred, despite the defendant’s argument that the order had not been validly served. On further appeal by the defendant, a preliminary sought was sought on the question, inter alia, whether, in the case of non-existent or defective service of the order, actual notice of it caused time to start to run for the purposes of the time limit in art 36 of the Convention.
Art 36 provides: “If enforcement is authorised, the party against whom enforcement is sought may appeal against the decision within one month of service thereof. If that party is domiciled in a contracting state other than that in which the decision authorising enforcement was given, the time for appealing shall be two months and shall run from the date of service …”
THE COURT said that in the absence of any answer to the question in the wording of art 36, it was necessary to look to the scheme and aims of the Convention. Under the scheme with regard to enforcement, the interests of the applicant and of the person against whom enforcement was sought were protected differently. By art 35, the decision on the application was only required to be “brought to the notice” of the applicant. In contrast, art 36 provided for a formal mechanism of service on the person addressed by the enforcement order, including a mandatory time limit. It followed that art 36 was subject to more stringent procedural requirements than art 35. Moreover, if the matter were to depend on the time when the enforcement decision came to the notice of the person addressed, not only would applicants be tempted to ignore the prescribed forms for due service, but also the calculation of the time limit would be rendered more difficult. Accordingly, art 35 required due service of the enforcement decision, and in a case of failed or defective service, the mere fact that the party addressed had notice of the decision was not sufficient to cause time to run for the purposes of the time limit fixed in the article.
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