#5139 - Klomps - Conflict of Laws BCL

Klomps (1981)

Facts

This case arises from an order of 27 June 1978 whereby The President of that court declared enforceable in the Netherlands, by virtue of the provisions of the convention, an order for payment and the order for its enforcement issued by German courts in the context of summary proceedings for the recovery of debts or liquidated demands, known as ''mahnverfahren''.

Personal service of the order for payment (zahlungsbefehl) was not effected but in the absence of the defendant the order was lodged at the post office and written notification of the order was left at the address in the Federal Republic of Germany provided by the creditor, which, according to German law, constituted service at that address. Under the legislation in force at the time the defendant was allowed a period of not less than three days in order to submit an objection (widerspruch) to the order for payment but that period was extended until such time as the court issued an order for its enforcement (vollstreckungsbefehl). In the present case that period was six days. After service of the enforcement order, which was effected by the same method, the defendant had a second period of one week within which to lodge an objection (einspruch) to the enforcement order. However, the defendant allowed four months to pass before submitting such an objection and claimed that at the time of the summary proceedings his habitual residence was in the Netherlands. The objection was dismissed as being out of time following adversary proceedings in which the German court considered the question of habitual residence in order to establish whether service was duly effected and held that, according to German law, Mr klomps was habitually resident at the address where service was effected.

It is clear from the file that under German law the objection to the order for payment might be made quite informally, without stating reasons, and even by a representative who was not required to prove that he was duly authorized for the purpose.

In the course of the various proceedings before the Netherlands courts the defendant, who is the appellant in cassation, claimed that the recognition, and accordingly the enforcement, in the Netherlands, of the orders made against him by the German courts were contrary to Article 27, point 2, of the convention.

Holding

“Document instituting proceedings” – Order for payment

By the first question the hoge raad asks whether, under a system like that which was in force in the Federal Republic of Germany in 1976 in accordance with which service on the defendant of an order for payment enables the plaintiff, where the defendant does not submit an objection to the order within the prescribed period, to obtain a Decision which remains provisionally enforceable even after the submission of the objection against the enforcement order, but under which both that objection and the objection to the order for payment transform the procedure into adversary proceedings, the words ''the document which instituted the proceedings'' refers to the order for payment (zahlungsbefehl) or the enforcement order (voll- streckungsbefehl).

As has been indicated above, Article 27, point 2, is intended to ensure that a judgment is not recognized or enforced under the convention if the defendant has not had an opportunity of defending himself before the court first seised. It follows that a measure, such as the order for payment (zahlungsbefehl) in German law, service of which on the defendant enables the plaintiff, where no objection to the order is made, to obtain a Decision which is enforceable under the convention, must be duly served on the defendant in sufficient time to enable him to arrange for his defence and accordingly that such a measure must be understood as being covered by the words ''the document which instituted the proceedings'' in Article 27, point 2. On the other hand a Decision, such as the enforcement order (voll-streckungsbefehl) in German law, which is issued following service of an order for payment and which is in itself enforceable under the convention, is not covered by those words even although the lodging of an objection against the enforcement order, like the objection to the order for payment, transforms the procedure into adversary proceedings.

Dismissal of an objection by the origin state - irrelevant

This question refers in substance to the jurisdiction of the courts of the state in which the judgment was given and the courts of another contracting state before which proceedings have been brought for the recognition or enforcement of a judgment given in the former state. In this connection it should be emphasized that Article 27, point 2, is not addressed to the courts of the state in which the judgment was given, but only to the court before which proceedings have been brought for recognition or enforcement of the judgment in another contracting state. In the case with which the question is concerned the defendant did not submit a defence as to the substance of the case before the court first seised. The dismissal of the objection to the enforcement order as inadmissible means that the Decision given in default remains intact. For that reason the objective of Article 27, point 2, requires that in the case with which this question is concerned the court in the state in which enforcement is sought should carry out the examination prescribed by that provision.

The reply to the third question should therefore be that Article 27, point 2, remains applicable where the defendant has lodged an objection against the Decision given in default and a court of the state in which the judgment was given has held the objection to be inadmissible on the ground that the time for lodging an objection has expired.

“Sufficient time” – autonomous meaning

Whether, where a court of the state in which the judgment was given has already found that service has been duly effected, the court seised in the other contracting state is still required to consider whether service was effected in sufficient time to enable the defendant to arrange for his defence.

For the purposes of the reply to the first part of the question it should first of all be pointed out that Article 27, point 2, lays down two conditions, the first of which, that service should be duly effected, entails a Decision based on the legislation of the state in which judgment was given and on the conventions binding on that state in regard to service whilst the second, concerning the time necessary to enable the defendant to arrange for his defence, implies appraisals of a factual nature. A Decision concerning the first of those conditions made in the state in which the judgment was given accordingly does not release the court in the state in which enforcement is sought from its duty to examine the second condition, even if that Decision was made in the context of separate adversary proceedings.

The reply to this part of the question must accordingly be that, even if the...