Case number and/or case name
C-420/07 Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams (Grand Chamber) [2009] ECR I-03571
Referring court and Member State
England and Wales, Second Instance, Court of Appeal
Summary
This case was referred to the CJEU in proceedings between Mr Apostolides (a Cypriot national) and the Orams (a British couple), regarding the recognition and enforcement, in the UK under Brussels I, of two Cypriot court judgments given in an action brought against the Orams by Mr Apostolides concerning immovable property in the northern area where the Cyprus Government does not have an effective control. The first question was whether the suspension of the application of the acquis communautaire in the northern area, provided for by Art 1(1) of Protocol No 10, precludes the application of Brussels I to the Cypriot court judgments concerning the land in the northern area. The CJEU considered that that fact does not nullify the obligation to apply Brussels I in the Cyprus Government-controlled area and that it does not mean that Brussels I must thereby be applied in the northern area (by analogy, paragraph 31 of C-281/02 Owusu). The CJEU also found that the case concerns ‘civil and commercial matters’ under Art 1(1) considering the object of the action and its being between individuals. The second question was whether the fact that the judgment concerns the land in northern area which the Cyprus Government does not exercise effective control may be regarded as an infringement of the jurisdiction rule in Art 22(1) and, therefore, justify a refusal to recognise or enforce the judgment under Art 35(1). The CJEU observed that the forum rei sitæ rule in Art 22(1) concerns the international jurisdiction of the MS’s courts and not their domestic jurisdiction. It stated that the fact that the land is in the northern area may possibly have an effect on the domestic jurisdiction of the Cypriot courts, but cannot have any effect for the purposes of Brussels I. It accordingly held that Art 35(1) does not authorise the court of a MS to refuse recognition or enforcement of a judgment given by the courts of another MS concerning land situated in an area of the latter State over which its Government does not exercise effective control. The third question was whether the fact that the land is in the northern area, cannot, as a practical matter, be enforced where the land is situated constitutes a ground for refusal of recognition or enforcement under Art 34(1). It noted that the referring court did not refer to any fundamental principle within the UK legal order which the recognition or enforcement of the judgments in question would be liable to infringe. It observed that in the absence of such a principle, no refusal to recognise the judgments under Art 34(1) would be justified on the ground that they concern the land in the northern area where the Cyprus government does not exercise effective control. It noted that such a fact could be relevant under Art 38(1). But, it found that the judgments are not totally unenforceable in the MS of origin. It observed that the fact that claimants might encounter difficulties in having judgments enforced in the northern area cannot deprive them of their enforceability and, therefore, does not prevent the courts of the MS in which enforcement is sought from declaring such judgments enforceable. The fourth question was whether the recognition or enforcement of the default judgment may be refused under Art 34(2) by reason of the fact that the defendant was not served with the document instituting the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, where he was able to commence proceedings to challenge that judgment before the courts of the MS of origin. It observed that Art 34(2) does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of the defence are effectively respected. It was common ground that the Orams commenced such proceedings in the MS of origin to challenge the default judgment, so the CJEU held that Art 34(2) cannot legitimately be relied upon.