GRAND CHAMBER

CASE OF AVOTIŅŠ v. LATVIA

(Application no. 17502/07)

JUDGMENT

STRASBOURG

23 May 2016

This judgment is final but it may be subject to editorial revision.

In the case of Avotiņš v. Latvia,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

András Sajó, President,
Işıl Karakaş,
Josep Casadevall,
Elisabeth Steiner,
Ján Šikuta,
Nona Tsotsoria,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal,
Faris Vehabović,
Ksenija Turković,
Egidijus Kūris,
Robert Spano,
Iulia Antoanella Motoc,
Jon Fridrik Kjølbro, judges,

Jautrīte Briede, ad hoc judge
and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 8 April 2015 and on 23 March 2016,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 17502/07) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) against the Republic of Cyprus and the Republic of Latvia by a Latvian national, Mr Pēteris Avotiņš (“the applicant”), on 20 February 2007.

2. The applicant was initially represented by Mr J. Eglītis, a lawyer practising in Riga. In the Grand Chamber proceedings he was represented by Mr L. Liepa, a lawyer also practising in Riga. The Latvian Government (“the respondent Government”) were represented by their former Agent, Ms I. Reine, and subsequently by their current Agent, Ms K. Līce.

3. The application was originally lodged against Cyprus and Latvia. The applicant alleged, in particular, that a Cypriot court had ordered him to pay a contractual debt without duly summoning him to appear or securing the exercise of his defence rights. He further complained of the fact that the Latvian courts had ordered the enforcement of the Cypriot court judgment in Latvia. He alleged a violation of his right to a fair hearing guaranteed by Article 6 § 1 of the Convention.

4. The application was initially assigned to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). In a partial decision of 30 March 2010 a Chamber of that Section declared the application inadmissible as being out of time in so far as it concerned Cyprus (for failure to comply with the six-month time‑limit laid down in Article 35 § 1 of the Convention). With regard to the complaints against Latvia, the Chamber further decided to give notice to the Latvian Government of the complaint under Article 6 § 1 of the Convention and to declare the remainder of the application inadmissible.

5. On 1 February 2011 the composition of the Court’s Sections was changed and the application was assigned to the Fourth Section (Rules 25 § 1 and 52 § 1).

6. On 25 February 2014 a Chamber of that Section composed of Päivi Hirvelä, President, Ineta Ziemele, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano and Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, delivered a judgment in which it found by a majority that there had been no violation of Article 6 § 1 of the Convention. The joint dissenting opinion of Judges Ziemele, Bianku and De Gaetano was annexed to the judgment.

7. On 23 May 2014 the applicant requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. On 8 September 2014 the panel of the Grand Chamber granted the request.

8. The composition of the Grand Chamber was subsequently determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. As the seat of the judge elected in respect of Latvia had become vacant in the meantime owing to the departure of Judge Ineta Ziemele, the President of the Court appointed Ms Jautrīte Briede to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

9. The respondent Government filed written observations on the merits, while the applicant referred to the arguments submitted in his request for referral to the Grand Chamber. Observations were also received from the Estonian Government, the European Commission and the Centre for Advice on Individual Rights in Europe (the AIRE Centre), all of which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The European Commission was also given leave to participate in the hearing.

10. Furthermore, in the interests of the proper administration of justice, the President of the Court decided to invite the Cypriot Government to intervene in the case and to submit explanations and observations on Cypriot law as relevant to the case (Article 36 § 2 of the Convention and Rule 44 § 3). The Cypriot Government accepted the invitation and submitted their observations on 4 February 2015.

11. A hearing was held in public in the Human Rights Building, Strasbourg, on 8 April 2015 (Rule 59 § 3).

There appeared before the Court:

(a) for the applicant
MrL. Liepa,Counsel,
MrM. Šķiņķis,
MrM. Pētersons,Advisers,
MrP. Avotiņš,Applicant;

(b) for the respondent Government
MsK. Līce,Agent,
MsS. Kauliņa,Counsel,
MsA. Zikmane,
MsD. Palčevska,Advisers;

(c) for the European Commission
MrH. Krämer,Counsel.

The Court heard addresses by Mr Liepa, Ms Līce and Mr Krämer and their replies to questions asked by the judges.

12. Judges Elisabeth Steiner, Nona Tsotsoria and Paul Lemmens, substitute judges, subsequently replaced President Dean Spielmann and Judges Mark Villiger and Isabelle Berro, who had left the Court owing to the expiry of their terms of office and were unable to take part in the further consideration of the case (Rule 24 §§ 3 and 4 of the Rules of Court). Judge András Sajó, Vice-President of the Court, then took over the presidency of the Grand Chamber in the present case (Rule 10).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

13. The applicant was born in 1954 and lives in Garkalne (Riga district). At the time of the events which are the subject of the present application he was an investment consultant.

A. The proceedings in the Limassol District Court

14. On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed an acknowledgment of debt deed before a notary. Under the terms of the deed the applicant declared that he had borrowed 100,000 United States dollars (USD) from F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The deed also contained choice of law and jurisdiction clauses according to which it was governed “in all respects” by Cypriot law and the Cypriot courts had non‑exclusive jurisdiction to hear any disputes arising out of it. The applicant’s address was given as G. Street in Riga and was indicated as follows:

“[FOR] GOOD AND VALUABLE CONSIDERATION, I, PĒTERIS AVOTIŅŠ, of [no.], G. [street], 3rd floor, Riga, Latvia, [postcode] LV-..., (‘the Borrower’) ...”

15. In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court (Επαρχιακό Δικαστήριο Λεμεσού, Cyprus), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the principal debt together with interest. In the Strasbourg proceedings the applicant submitted that he had in fact already repaid the debt before the proceedings were instituted in the Cypriot court, not by paying the sum of money in question to F.H. Ltd. but by other means linked to the capital of F.H. Ltd.’s parent company. However, he acknowledged that there was no documentary evidence of this. The respondent Government contested the applicant’s submission.

16. In an order dated 27 June 2003 the District Court authorised the “sealing and filing of the writ of summons”. On 24 July 2003 a “specially endorsed writ” was drawn up, describing the facts of the case in detail. It gave the applicant’s address as G. Street in Riga, the address indicated on the acknowledgment of debt deed.

17. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same District Court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country and requiring him to appear within thirty days from the date of issuing of the summons. The claimant company’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and could actually receive judicial documents at that address. The applicant, for his part, contended that it would have been physically impossible for him to receive the summons at the address in question, which was simply the address at which he had signed the loan contract and the acknowledgment of debt deed in 1999 and was not his home or business premises.

18. On 7 October 2003 the Limassol District Court ordered that notice of the proceedings be served on the applicant at the address provided by the claimant company. The applicant was summoned to appear or to come forward within thirty days of receiving the summons. If he did not do so the court would make no further attempt to contact him and would instead post all future announcements concerning the case on the court noticeboard.

19. An affidavit produced by an employee of the firm of lawyers representing F.H. Ltd. showed that, in accordance with the court order, the summons had been sent by recorded delivery to the address in G. Street in Riga on 16 November 2003. However, the copy of the summons furnished by the Latvian Government indicated that it had been drawn up on 17 November 2003. The slip produced by the Cypriot postal service stated that the summons had been sent on 18 November 2003 to the address in G. Street, and had been delivered and signed for on 27 November 2003. However, the signature on the slip did not appear to correspond to the applicant’s name. The applicant claimed never to have received the summons.

20. As the applicant did not appear, the Limassol District Court ruled in his absence on 24 May 2004. It ordered him to pay the claimant USD 100,000 or the equivalent in Cypriot pounds (CYP), plus interest at an annual rate of 10% of the aforementioned amount from 30 June 1999 until payment of the debt. The applicant was also ordered to pay costs and expenses in a gross amount of CYP 699.50, plus interest at an annual rate of 8%. According to the judgment, the final version of which was drawn up on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment did not state whether the decision was final or indicate possible judicial remedies.

B. The recognition and enforcement proceedings in the Latvian courts

21. On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa, Latvia) seeking recognition and enforcement of the judgment of 24 May 2004. In its request the company also sought to have a temporary precautionary measure applied. It stated that the applicant was the owner of real property in Garkalne (Riga district) which according to the land register was already mortgaged to a bank. Accordingly, fearing that the applicant might seek to evade enforcement of the judgment, it asked the District Court to place a charge on the property in question and record the charge in the land register. Lastly, it requested that the applicant be ordered to pay the costs. In its request the company gave as the applicant’s place of residence an address in Č. Street in Riga which differed from the address previously notified to the Cypriot court.

22. On 28 April 2005 the Latgale District Court adjourned examination of F.H. Ltd.’s request, informing the company that the request contained a number of defects which it had one month to correct. In particular, F.H. Ltd. had not explained why it had given an address in Č. Street when the applicant was supposedly resident in G. Street.

23. On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that according to the information contained in the register of residents (Iedzīvotāju reģistrs), the address in Č. Street was the applicant’s officially declared home address. As to the address in G. Street, the company’s representatives had assumed it to be the applicant’s actual residence. In that connection the Latvian Government provided the Court with a copy of a letter from the authority responsible for the register of residents according to which, prior to 19 June 2006, the applicant’s officially declared address had been in Č Street.

24. In an order of 31 May 2005 the Latgale District Court ruled that the corrigendum submitted by F.H. Ltd. was insufficient to remedy all the defects in its request. The court therefore declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court (Rīgas apgabaltiesa), which on 23 January 2006 set aside the order of 31 May 2005 and remitted the case to the District Court in order for the latter to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005.

25. In an order of 27 February 2006 issued without the parties being present, the Latgale District Court granted F.H. Ltd.’s request in full. It ordered the recognition and enforcement of the Limassol District Court’s judgment of 24 May 2004 and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality. The applicant was also ordered to pay the costs.

26. According to the applicant, it was not until 15 June 2006 that he learned, from the bailiff responsible for enforcement of the Cypriot judgment, of the existence of that judgment and of the Latgale District Court order for its enforcement. On the following day (16 June 2006) he went to the District Court, where he acquainted himself with the judgment and the order. The respondent Government did not dispute these facts.

27. The applicant did not attempt to appeal against the Cypriot judgment in the Cypriot courts. However, he lodged an interlocutory appeal (blakus sūdzība) against the order of 27 February 2006 with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. Arguing that there was nothing in the case file to confirm that he had been given notice of the hearing of 27 February 2006 or of the order issued following the hearing, he submitted that the thirty-day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had taken cognisance of the order in question.

28. In an order of 13 July 2006 the Latgale District Court granted the applicant’s request and extended the time-limit for lodging an appeal. It noted, inter alia, as follows:

“... It is clear from the order of 27 February 2006 that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties, on the basis of the documents furnished by the claimant, [F.H. Ltd.]. The order further states that the defendant may appeal against it within thirty days from the date of receipt of the copy [of that order], in accordance with section 641(2) of the Civil Procedure Law.

The court considers the arguments advanced by the applicant, P. Avotiņš, to be well‑founded, to the effect that he did not receive the order ... of 27 February 2006 until 16 June 2006, this being attested to by the reference in the list of consultations [appended to the case file] and by the fact that the order, served [on the applicant] by the court, was returned on 10 April 2006 ... It is apparent from the documents appended to the appeal that the applicant has not lived at the declared address in [Č.] Street since 1 May 2004; this confirms ... the statement made by his representative at the hearing, according to which the applicant no longer lives at the above-mentioned address.

Accordingly, the thirty-day period should ... run from the date on which the applicant received the order in question ...

Further, the court does not share the view of the representative of [F.H. Ltd.] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his change of address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact that the applicant did not take the necessary legal steps concerning registration of residence is not sufficient to justify a refusal by the court to allow him to exercise the fundamental rights guaranteed by the State as regards access to the courts and judicial protection, including the right to appeal against a decision, with the consequences this is likely to entail. ...”

29. In his grounds of appeal before the Riga Regional Court the applicant contended that the recognition and enforcement of the Cypriot judgment in Latvia breached Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels I Regulation”) and several provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard.

30. Firstly, the applicant argued that in accordance with Article 34(2) of the Brussels I Regulation (corresponding in substance to section 637(2), third sub‑paragraph, of the Latvian Civil Procedure Law), a judgment given in default in another Member State could not be recognised if the defendant had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. He maintained that he had not been duly informed of the proceedings in Cyprus, although both the Cypriot lawyers who had represented the claimant company in the Limassol District Court and the Latvian lawyers who had represented it in the Latvian courts had been perfectly aware of his business address in Riga. In support of that allegation he submitted that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office, and had met the Latvian lawyers in person. Hence, they must all have been aware of his business address. He added that he could also have been reached at his home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and the lawyers could have consulted the municipal land register, where the property he owned was registered under his name. However, instead of serving notice of the proceedings on him at one of those addresses, which had been known and accessible, the lawyers had given the courts an address which they should have realised could not be used.

31. Secondly, the applicant argued that, under the terms of Article 38(1) of the Brussels I Regulation and section 637(2), second sub‑paragraph, of the Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the Member State addressed. In the instant case, there had been a threefold breach of those requirements. First, the claimant had only submitted the text of the Cypriot court judgment to the Latvian court and not the certificate required by Annex V to the Brussels I Regulation. In that connection the applicant acknowledged that under Article 55(1) of the Brussels I Regulation the court in which enforcement was sought could, in some circumstances, exempt the claimant from the obligation to produce a certificate. However, in the present case the Latgale District Court had not made clear whether it considered that the claimant could be exempted from that obligation and, if so, for what reason. Second, the Cypriot judgment had contained no reference to the fact that it was enforceable or to possible judicial remedies. Third, although a judgment had to be enforceable in the country of origin in order to be enforced in accordance with the Brussels I Regulation, the claimant company had not produced any documentary evidence demonstrating that the judgment of 24 May 2004 was enforceable in Cyprus. In view of all these circumstances, the applicant contended that the judgment could on no account be recognised and enforced in Latvia.

32. In a judgment of 2 October 2006 the Regional Court allowed the applicant’s appeal on the merits, quashed the impugned order and rejected the request for recognition and enforcement of the Cypriot judgment.

33. F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it on 31 January 2007. At the start of the hearing F.H. Ltd. submitted copies of several documents to the Senate, including the certificate referred to in Article 54 of the Brussels I Regulation and Annex V thereto. The certificate was dated 18 January 2007 and had been signed by an acting judge of the Limassol District Court. It stated that the document instituting the proceedings had been served on the applicant on 27 November 2003. The last part of the certificate, intended for the name of the person against whom the judgment was enforceable, had been left blank. When asked to comment on these documents the applicant’s lawyer contended that they were clearly insufficient to render the judgment enforceable.

34. In a final judgment of 31 January 2007 the Supreme Court quashed and annulled the Regional Court judgment of 2 October 2006. It granted F.H. Ltd.’s request and ordered the recognition and enforcement of the Cypriot judgment and the entry in the land register of a charge on the applicant’s property in Garkalne. The relevant extracts from the judgment read as follows:

“ ... It is clear from the evidence in the case file that the Limassol District Court judgment became final. This is confirmed by the explanations provided by both parties at the Regional Court hearing on 2 October 2006, according to which no appeal had been lodged against the judgment, and by the certificate issued on 18 January 2007... As [the applicant] did not appeal against the judgment, his lawyer’s submissions to the effect that he was not duly notified of the examination of the case by a foreign court lack relevance [nav būtiskas nozīmes].

Having regard to the foregoing, the Senate finds that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 must be recognised and enforced in Latvia.

Article 36 of the [Brussels I] Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance; in accordance with section 644(1) of the Civil Procedure Law, once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by that Law. ...”

35. On 14 February 2007 the Latgale District Court, basing its decision on the Supreme Court judgment, issued a payment order (izpildu raksts). The applicant complied immediately with the terms of the order and paid the bailiff employed by the claimant company a total of 90,244.62 Latvian lati (LVL, approximately 129,000 euros (EUR)), comprising LVL 84,366.04 for the principal debt and LVL 5,878.58 in enforcement costs. He then requested that the charge on his property in Garkalne be lifted. In two orders dated 24 January 2008 the judge with responsibility for land registers (Zemesgrāmatu nodaļas tiesnesis) refused the request. The applicant lodged an appeal on points of law with the Senate of the Supreme Court, which, in an order of 14 May 2008, lifted the charge on his property.

II. RELEVANT EUROPEAN UNION AND INTERNATIONAL LAW MATERIALS

A. General European Union law

1. Fundamental rights in European Union law

36. At the material time the relevant parts of Article 6 of the Treaty on European Union (TEU) read as follows:

“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

...”

37. Following the entry into force of the Treaty of Lisbon on 1 December 2009, Article 6 of the TEU reads as follows:

“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”

38. Furthermore, since 1 December 2009 the relevant provisions of the Treaty on the Functioning of the European Union (TFEU) provide:

Article 67

“1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.

...

4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.”

Article 81(1)

“The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.”

Article 82(1)

“Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.”

39. Lastly, the second paragraph of Article 249 of the Treaty establishing the European Community (applicable at the material time and identical to Article 288, second paragraph, of the TFEU) provided:

“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”

40. The relevant provisions of the Charter of Fundamental Rights of the European Union (which had not yet acquired binding force at the material time) provide:

Article 47 – Right to an effective remedy and to a fair trial

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

...”

Article 51 – Field of application

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law...

...”

Article 52 – Scope and interpretation of rights and principles

“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

...

3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

...”

Article 53 – Level of protection

“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.”

41. In the case of Krombach v Bamberski (Case C-7/98, judgment of 28 March 2000, ECR I-1935), the Court of Justice of the European Union (known as the “Court of Justice of the European Communities” prior to the entry into force of the Treaty of Lisbon on 1 December 2009 – hereinafter “the CJEU”), held as follows:

“25. The Court has consistently held that fundamental rights form an integral part of the general principles of law whose observance the Court ensures (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the ECHR’) has particular significance (see, inter alia, Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18).

26. The Court has thus expressly recognised the general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraphs 20 and 21, and judgment of 11 January 2000 in Joined Cases C‑174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-0000, paragraph 17).

27. Article F(2) of the Treaty on European Union (now, after amendment, Article 6(2) EU) embodies that case-law. It provides: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.”

42. In its judgment in ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS) (Case C-283/05, judgment of 14 December 2006, ECR I-12041), the CJEU reiterated the following:

“26. According to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures... For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) has special significance...

27. It follows from the ECHR, as interpreted by the European Court of Human Rights, that the rights of the defence, which derive from the right to a fair legal process enshrined in Article 6 of that convention, require specific protection intended to guarantee effective exercise of the defendant’s rights (see Eur. Court H.R., Artico v Italy judgment of 13 May 1980, Series A No 37, § 33, and Eur. Court H.R., T v Italy judgment of 12 October 1992, Series A No 245 C, § 28).”

43. In its judgment in DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (Case C-279/09, judgment of 22 December 2010, ECR I-13849), delivered after the entry into force of the Treaty of Lisbon and hence after the Charter of Fundamental Rights had acquired the same legal value as the Treaties, the CJEU held:

“29. The question referred thus concerns the right of a legal person to effective access to justice and, accordingly, in the context of EU law, it concerns the principle of effective judicial protection. That principle is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) ...

30. As regards fundamental rights, it is important, since the entry into force of the Lisbon Treaty, to take account of the Charter, which has ‘the same legal value as the Treaties’ pursuant to the first subparagraph of Article 6(1) TEU. Article 51(1) of the Charter states that the provisions thereof are addressed to the Member States when they are implementing EU law.

31. In that connection, the first paragraph of Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Under the second paragraph of Article 47, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone is to have the possibility of being advised, defended and represented. The third paragraph of Article 47 of the Charter provides specifically that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

32. According to the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR.”

44. In Gascogne Sack Deutschland GmbH v Commission (Case C‑40/12 P, judgment of 26 November 2013), the CJEU stressed the continuity of the legal system before and after the entry into force of the Treaty of Lisbon, finding as follows:

“28. As to the question of whether the entry into force of the Lisbon Treaty ought to have been regarded, as the appellant submits, as a matter which came to light in the course of the proceedings and, on that basis, gave good grounds, in accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, for introducing new pleas in law, the Court of Justice has held that the entry into force of that treaty, incorporating the Charter into European Union primary law, cannot be considered a new matter of law within the meaning of the first subparagraph of Article 42(2) of its Rules of Procedure. In that context, the Court has noted that, even before that treaty entered into force, it had found on several occasions that the right to a fair trial, which derives inter alia from Article 6 ECHR, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU (see, in particular, Case C-289/11 P Legris Industries v Commission, paragraph 36).”

45. Lastly, with regard to the scope of the rights guaranteed by the Charter of Fundamental Rights, the CJEU held in J. McB. v L.E. (Case C‑400/10 PPU, judgment of 5 October 2010):

“53. Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. The wording of Article 8(1) of the ECHR is identical to that of the said Article 7, except that it uses the expression ‘correspondence’ instead of ‘communications’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C‑450/06 Varec [2008] ECR I‑581, paragraph 48).”

2. Fundamental rights and the principle of mutual trust

46. In its judgment in N.S. v Secretary of State for the Home Department (Joined Cases C-411/10 and C-493/10, judgment of 21 December 2011, ECR I-13905), given in the context of the application of Regulation No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”), the CJEU held:

“77. According to settled case-law, the Member States must not only interpret their national law in a manner consistent with European Union law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the European Union legal order or with the other general principles of European Union law (see, to that effect, Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87, and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28).

78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard.

...

80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR.

81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights.

...

83. At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.

...

94. It follows from the foregoing that in situations such as that at issue in the cases in the main proceedings, to ensure compliance by the European Union and its Member States with their obligations concerning the protection of the fundamental rights of asylum seekers, the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.

...

98. The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, that Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.

99. It follows from all of the foregoing considerations that, as stated by the Advocate General in paragraph 131 of her Opinion, an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights.

100. In addition, as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States.

101. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary.

...

104. In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable.

105. In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.”

47. In the case of Melloni v Ministerio Fiscal (Case C-399/11, judgment of 26 February 2013), concerning in particular the issue whether a European Union Member State could refuse to execute a European arrest warrant on the basis of Article 53 of the Charter of Fundamental Rights on grounds of infringement of the fundamental rights of the person concerned guaranteed by the national Constitution, the CJEU found as follows:

“60. It is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.

61. However, [the] Framework Decision [governing the European arrest warrant] does not allow Member States to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for ...

62. It should also be borne in mind that the adoption of Framework Decision 2009/299, which inserted that provision into Framework Decision 2002/584, is intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absence of the person concerned at his trial arising from the differences as among the Member States in the protection of fundamental rights. That framework decision effects a harmonisation of the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia, which reflects the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant.

63. Consequently, allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under [the] Framework Decision ..., in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision.

64. In the light of the foregoing considerations, the answer to the third question is that Article 53 of the Charter must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.”

48. In the case of Alpha Bank Cyprus Ltd v Dau Si Senh and Others (Case C-519/13, judgment of 16 September 2015), concerning the application of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, the CJEU held:

“30. Therefore, with the aim of improving the efficiency and speed of judicial procedures and ensuring proper administration of justice, that regulation establishes the principle of direct transmission of judicial and extrajudicial documents between the Member States (see judgment in Leffler, C‑443/03, EU:C:2005:665, paragraph 3), which has the effect of simplifying and accelerating the procedures. Those objectives are noted in recitals 6 to 8 in the preamble to that regulation.

31. However, as the Court has already held on numerous occasions, those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, inter alia, judgment in Alder, C‑325/11, EU:C:2012:824, paragraph 35 and the case-law cited).”

3. Opinion 2/13

49. In Opinion 2/13 of 18 December 2014 on the draft agreement providing for the accession of the European Union to the European Convention on Human Rights, the CJEU found that the draft agreement was not compatible with the Treaty on European Union. The relevant parts of the Opinion provide:

“187. In that regard, it must be borne in mind, in the first place, that Article 53 of the Charter provides that nothing therein is to be interpreted as restricting or adversely affecting fundamental rights as recognised, in their respective fields of application, by EU law and international law and by international agreements to which the EU or all the Member States are party, including the ECHR, and by the Member States’ constitutions.

188. The Court of Justice has interpreted that provision as meaning that the application of national standards of protection of fundamental rights must not compromise the level of protection provided for by the Charter or the primacy, unity and effectiveness of EU law (judgment in Melloni, EU:C:2013:107, paragraph 60).

189. In so far as Article 53 of the ECHR essentially reserves the power of the Contracting Parties to lay down higher standards of protection of fundamental rights than those guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter, as interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of the ECHR is limited – with respect to the rights recognised by the Charter that correspond to those guaranteed by the ECHR – to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised.

...

191. In the second place, it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, judgments in N. S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 78 to 80, and Melloni, EU:C:2013:107, paragraphs 37 and 63).

192. Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU.

193. The approach adopted in the agreement envisaged, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU and, in particular, fails to take into consideration the fact that the Member States have, by reason of their membership of the EU, accepted that relations between them as regards the matters covered by the transfer of powers from the Member States to the EU are governed by EU law to the exclusion, if EU law so requires, of any other law.

194. In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.”

4. Provisions concerning preliminary rulings

50. Article 234 of the Treaty establishing the European Community (applicable at the relevant time and replaced by Article 267 of the TFEU) read as follows:

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

...

(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;

...

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

51. In the case of Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (Case 283/81, judgment of 6 October 1982, ECR 3415), the CJEU spelled out the extent of the obligation imposed by the former Article 177(3) of the Treaty establishing the European Economic Community (equivalent to the third paragraph of Article 234 of the Treaty establishing the European Community). It held as follows:

“The third paragraph of Article 177 ... is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”

52. The scope of that case-law was further defined in the case of Ferreira da Silva e Brito and Others v Estado português (Case C-160/14, judgment of 9 September 2015), in which the CJEU held as follows:

“36. By its second question, the referring court seeks to ascertain whether, in circumstances such as those at issue in the main proceedings and, in particular, because of the fact that lower courts have given conflicting decisions concerning the interpretation of the concept of a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23, the third paragraph of Article 267 TFEU must be construed as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is in principle obliged to refer the matter to the Court of Justice in order to obtain an interpretation of that concept.

37. In that regard, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it (see judgment in Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato, C‑136/12, EU:C:2013:489, paragraph 25 and the case-law cited).

38. As regards the extent of that obligation, it follows from settled case-law, beginning with the judgment in Cilfit and Others (283/81, EU:C:1982:335), that a court or tribunal against whose decisions there is no judicial remedy under national law is obliged, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the provision of EU law concerned has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.

39. The Court has also made clear that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union (judgment in Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 33).

40. It is true that the national court or tribunal has sole responsibility for determining whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court a question concerning the interpretation of EU law which has been raised before it (see judgment in Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 37 and the case-law cited).

41. In itself, the fact that other national courts or tribunals have given contradictory decisions is not a conclusive factor capable of triggering the obligation set out in the third paragraph of Article 267 TFEU.

42. A court or tribunal adjudicating at last instance may take the view that, although the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt.

43. However, so far as the area under consideration in the present case is concerned and as is clear from paragraphs 24 to 27 of this judgment, the question as to how the concept of a ‘transfer of a business’ should be interpreted has given rise to a great deal of uncertainty on the part of many national courts and tribunals which, as a consequence, have found it necessary to make a reference to the Court of Justice. That uncertainty shows not only that there are difficulties of interpretation, but also that there is a risk of divergences in judicial decisions within the European Union.

44. It follows that, in circumstances such as those of the case before the referring court, which are characterised both by conflicting lines of case-law at national level regarding the concept of a ‘transfer of a business’ within the meaning of Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to make a reference to the Court, in order to avert the risk of an incorrect interpretation of EU law.

45. Accordingly, the answer to the second question is that, in circumstances such as those of the case in the main proceedings, which are characterised both by the fact that there are conflicting decisions of lower courts or tribunals regarding the interpretation of the concept of a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, the third paragraph of Article 267 TFEU must be construed as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is obliged to make a reference to the Court for a preliminary ruling concerning the interpretation of that concept.”

B. Provisions concerning the recognition and enforcement of foreign judgments in civil and commercial matters

1. Regulation No 44/2001 (Brussels I): version applied in the instant case

(a) Text of the Regulation

53. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels I Regulation”) entered into force on 1 March 2002. It replaced the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 and was binding on all the European Union Member States with the exception of Denmark. The provisions cited below, which were applicable in the present case, remained in force until 10 January 2015, the date of entry into force of the new recast version, known as “Brussels I bis”.

54. Recitals 16 to 18 of the Preamble to Regulation No 44/2001 read as follows:

“(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.

(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.

(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.”

55. The relevant Articles of the Regulation read as follows:

Article 26

“1. Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.

2. The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

...”

Article 33

“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.

...”

Article 34

“A judgment shall not be recognised:

1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;

2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

...”

Article 35

“1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.

2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.

3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. ...”

Article 36

“Under no circumstances may a foreign judgment be reviewed as to its substance.”

Article 37(1)

“A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.”

Article 38(1)

“A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.”

Article 41

“The judgment shall be declared enforceable ... without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.”

Article 43

“1. The decision on the application for a declaration of enforceability may be appealed against by either party.

...

3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.”

Article 45

“1. The court with which an appeal is lodged under Article 43 ... shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

2. Under no circumstances may the foreign judgment be reviewed as to its substance.”

Article 46(1)

“The court with which an appeal is lodged under Article 43 ... may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.”

Article 54

“The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation.”

(b) Explanatory memorandum concerning the proposal for a Regulation

56. In so far as relevant to the present case, the explanatory memorandum concerning the proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters presented by the Commission (document COM/99/0348 final, published in the Official Journal of the European Communities C 376 E of 28 December 1999, pp. 1-17) stated as follows:

“2.2. Legal basis

The subject-matter covered by the [Brussels] Convention is now within the ambit of Article 65 of the Treaty; the legal basis for this proposal is Article 61(c) of that Treaty.

The form chosen for the instrument – a regulation – is warranted by a number of considerations. The Member States cannot be left with the discretion not only to determine rules of jurisdiction, the purpose of which is to achieve certainty in the law for the benefit of individuals and economic operators, but also the procedures for the recognition and enforcement of judgments, which must be clear and uniform in all Member States.

...

Section 2 - Enforcement

This Section describes the procedure to be followed either for formal recognition ... or for a declaration of enforceability in a Member State other than the State of origin of the judgment. The purpose of this procedure, of course, is to declare a judgment that is enforceable in the State of origin enforceable; there is no effect on actual enforcement of the judgment in the Member State addressed. The procedure is directed towards obtaining a rapid decision. Considerable changes have accordingly been made to the Brussels Convention mechanism. For one thing, the court or authority responsible for declaring the judgment enforceable in the Member State addressed has no power to proceed of its own motion to review the grounds for non-enforcement of the judgment provided for by Articles 41 and 42. These may be reviewed, if at all, only in the course of an appeal from the party against whom enforcement has been authorised. The court or competent authority is limited to making formal checks on the documents presented in support of the application; they are determined by the Regulation. Moreover, the grounds for non-recognition or non‑enforcement have been narrowed down quite considerably.

...

Article 41 [corresponding to Article 34 of the EC Regulation]

This Article determines the sole grounds on which a court seised of an appeal may refuse or revoke a declaration of enforceability. These grounds have been reframed in a restrictive manner to improve the free movement of judgments.

For one thing, adding the adverb ‘manifestly’ in point 1 underscores the exceptional nature of the public policy ground. For another, the ground most commonly relied on by debtors to oppose enforcement has been modified to avoid abuses of procedure. To prevent enforcement being excluded, it will be enough for the defaulting defendant in the State of origin to have been served with notice in sufficient time and in such a way as to enable him to arrange for his defence. A mere formal irregularity in the service procedure will not debar recognition or enforcement if it has not prevented the debtor from arranging for his defence. Moreover, if the debtor was in a position to appeal in the State of origin on grounds of a procedural irregularity and has not done so, he is not entitled to invoke that procedural irregularity as a ground for refusing or revoking a declaration in the State addressed. ...”

(c) The CJEU’s case-law

57. In the case of Klomps v Michel (Case C-166/80, judgment of 16 June 1981, ECR 1593), the CJEU further defined the scope of the guarantees contained in Article 27(2) of the Brussels Convention (corresponding in part to Article 34(2) of the Brussels I Regulation). It held that the provision in question remained applicable where the defendant had lodged an objection against a judgment given in default and a court of the State in which the judgment was given had held the objection to be inadmissible on the ground that the time for lodging an objection had expired. Furthermore, even where a court in the State of origin had held, in separate adversarial proceedings, that service had been duly effected, Article 27(2) still required the court in which enforcement was sought to examine whether service had been effected in sufficient time to enable the defendant to arrange for his defence.

58. In its judgment in ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS), cited above, the CJUE was called on to give a ruling as to whether the condition that it must have been “possible”, within the meaning of Article 34(2) in fine of the Brussels I Regulation, to commence proceedings to challenge the default judgment, required the judgment to have been duly served on the defendant or whether it was sufficient for the latter to have become aware of its existence at the stage of the enforcement proceedings in the State in which enforcement was sought. The CJEU adopted the following reasoning:

“20. ... Article 34(2) of Regulation No 44/2001 does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of defence are effectively respected.

21. Finally, Article 34(2) provides an exception to gro