Referring court and Member State
Latvia, Third Instance, Augstākās tiesas Senāts
Summary
This case on the interpretation of Art 34(1) and (2) of Brussels I was referred to the CJEU in proceedings concerning the recognition and enforcement in Latvia of a judgment delivered by the UK High Court. Seramico brought an action before the High Court against the defendant to obtain a payment. The defendant was served on but filed no defence and the High Court delivered a judgment in default of appearance ordering it to pay £293,582.98. Seramico submitted to the Latvian courts an application for recognition and enforcement accompanied by a copy of the judgment and the certificate provided for by Art 54 of Brussels I. The Latvian court upheld the application and the appeal was dismissed. At the appeal in cassation before the referring court, the defendant argued that the application for recognition and enforcement should be rejected because (i) its rights of defence had been breached during the English proceedings, since it had not been informed that legal proceedings had been instituted in England and (ii) the English judgment was manifestly contrary to Latvian public policy since it did not give any reasons. The referring court asked two questions to the CJEU. The first question was where the defendant brings an action against the declaration of enforceability of a judgment accompanied by the certificate, claiming that he has not been served with the document instituting the proceedings, whether the court of the MS hearing the application for enforcement has to check, under Art 34(2), whether the information in the certificate is consistent with the evidence as regards service on the defendant. The CJEU interpreted Art 34(2) by considering the wording and aim of the provision, and took account of Recitals 16 and 17. Reaffirming C 139/10 Prism Investments, it observed that at the first stage of the application in Art 41, the authorities of the MS in which enforcement is sought must not carry out any assessment of the elements of fact and law of the case decided by the judgment enforcement of which is sought. It continued that, however, at the second stage when the declaration of enforceability is served on the defendant, the declaration may be the subject of dispute brought by the defendant under Art 43 based on the grounds set out in Arts 34 and 35. It reaffirmed C 283/05 ASML that at that stage the ground in Art 34(2) aims to ensure that the rights of defence of a defendant in default of appearance delivered in the MS of origin are observed by a double review. Agreeing with AG Kokott, it found that the fact that the foreign judgment is accompanied by the certificate cannot limit the scope of the assessment to be made pursuant to the double control, by the court of the MS in which enforcement is sought, once it examines the ground in Art 34(2). Thus, the court has to verify that the information in that certificate is consistent with the evidence. The second question was whether a judgment given in default of appearance, which disposes of the substance of the case but which does not contain any assessment of the subject-matter or the basis of the action and which is devoid of any argument on the merits thereof, may be refused under Art 34(1) due to the public policy ground that it infringes the right of the defendant to a fair trial under Art 47 of the EU Charter on Fundamental Rights. After confirming the exceptional nature of the public policy ground and citing C 341/04 Eurofood and C 394/07 Gambazzi, the CJEU agreed with the AG and held that the court may to do so only if it appears to it, after an overall assessment of the proceedings and in the light of all the relevant circumstances, that the judgment in question is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in Art 47(2) of the Charter, on account of the impossibility of bringing an appropriate and effective appeal against it.