EUPillar C-283/05 ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS) (First Chamber) [2006] ECR I-12041

Summary

The reference was made in the course of proceedings between ASML Netherlands BV (‘ASML’), a company established in the Netherlands, and Semiconductor Industry Services GmbH (‘SEMIS’), a company established in Austria, concerning the enforcement in Austria of a judgment given in default of appearance by the Rechtbank ’s-Hertogenbosch (Netherlands) ordering SEMIS to pay ASML the sum of EUR 219 918.60 together with interest and the costs of the proceedings. The summons to the hearing before the Rechtbank ’s-Hertogenbosch, fixed by the latter for 19 May 2004, was not served on SEMIS until 25 May 2005 and, second, that the default judgment was not served on SEMIS. On the application of ASML, the default judgment was declared enforceable by order of 20 December 2004 of the Bezirksgericht Villach (District Court, Villach) (Austria), the court in which recognition was sought at first instance, on the basis of a certificate drawn up by the Rechtbank ’s-Hertogenbosch on 6 July 2004 declaring the judgment ‘provisionally enforceable’. The Bezirksgericht Villach also ordered enforcement of that judgment. A copy of the order was served on SEMIS. The default judgment was not included. On appeal by SEMIS against that order, the Landesgericht Klagenfurt (Regional Court, Klagenfurt) (Austria) dismissed the application for enforcement of the default judgment on the ground that, for it to be ‘possible’ to commence proceedings to challenge the judgment, within the meaning of Art 34(2) of Brussels I, that the judgment must have been served on the defendant. The Landesgericht Klagenfurt dismissed ASML’s argument that the exception to the ground of non-recognition contained in Art 34(2) was applicable because SEMIS was aware both of the proceedings brought against it in the Netherlands, since it had been served on 25 May 2004 with a summons to the hearing, and of the existence of the default judgment as a result of service of the order of the Bezirksgericht Villach of 20 December 2004 declaring that judgment enforceable. On appeal on a point of law brought by ASML, the referring court, by its two questions, asked essentially whether Art 34(2) must be interpreted as meaning that the condition that it must be ‘possible’, within the meaning of that provision, to commence proceedings to challenge the default judgment in respect of which enforcement is sought, requires that the judgment should have been duly served on the defendant, or whether it is sufficient that the latter should have become aware of its existence at the stage of the enforcement proceedings in the State in which enforcement is sought. The CJEU decided that only knowledge by the defendant of the contents of the default judgment guarantees, in accordance with the requirements of respect for the rights of defence and the effective exercise of those rights, that it is possible for the defendant, within the meaning of Art 34(2), to commence proceedings to challenge that judgment before the courts of the State in which the judgment was given. That conclusion cannot call into question the effectiveness of the amendments made by Art 34(2) to the equivalent provisions in Art 27(2) of the Brussels Convention. As Advocate General Léger has pointed out, in paras 58 and 60 of his Opinion, Art 34(2) is intended, in particular, to prevent a defendant from waiting for the recognition and enforcement proceedings in the State in which enforcement is sought in order to claim infringement of the rights of defence, when it had been possible for him to defend his rights by bringing proceedings against the judgment concerned in the State in which the judgment was given. Art 34(2) does not mean, however, that the defendant is required to take additional steps going beyond normal diligence in the defence of his rights, such as those consisting in becoming acquainted with the contents of a judgment delivered in another Member State.