Case C-3/05
Gaetano Verdoliva
v
J.M. Van der Hoeven BV and Others
(Reference for a preliminary ruling from the Corte d’appello di Cagliari)
(Brussels Convention – Judgment authorising the enforcement of a judgment given in another Contracting State – Failure of, or defective, service – Notice – Time for appealing)
Summary of the Judgment
Convention on Jurisdiction and the Enforcement of Judgments – Enforcement – Judgment authorising enforcement – Service
(Brussels Convention of 27 September 1968, Art. 36)
Article 36 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Accession Conventions of 1978, 1982 and 1989, is to be interpreted as requiring due service of the decision authorising enforcement in accordance with the procedural rules of the Contracting State in which enforcement is sought, and therefore, in cases of failure of, or defective, service of the decision authorising enforcement, the mere fact that the party against whom enforcement is sought has notice of that decision is not sufficient to cause time to run for the purposes of the time-limit fixed in that article.
First, the requirement that the decision authorising enforcement be served has a dual function: on the one hand, it serves to protect the rights of the party against whom enforcement is sought and, on the other, it allows, in terms of evidence, the strict and mandatory time-limit for appealing provided for that provision to be calculated precisely. That double function, combined with the aim of simplification of the formalities to which enforcement of judicial decisions delivered in other Contracting States is subject, explains why the Convention makes transmission of the decision authorising enforcement to the party against whom enforcement is sought subject to procedural requirements that are more stringent than those applicable to transmission of that same decision to the applicant. Secondly, if the sole issue were whether the document authorising enforcement came to the attention of the party against whom enforcement was sought, that could render the requirement of due service meaningless and, moreover, would make the exact calculation of the time-limit provided for in that provision more difficult thus thwarting the uniform application of the provisions of the Convention.
(see paras 34-38, operative part)