Isabelle Lancray SA v Peters und Sickert KG.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Díez de Velasco
• ECLI: ECLI:EU:C:1990:275
• Date: 03 July 1990
• Docket Number: C-305/88
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61988J0305

Judgment of the Court (Sixth Chamber) of 3 July 1990. - Isabelle Lancray SA v Peters und Sickert KG. - Reference for a preliminary ruling: Bundesgerichtshof - Germany. - Brussels Convention of 27 September 1968 - Recognition of default judgment - Article 27 (2). - Case C-305/88.

European Court reports 1990 Page I-02725

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1 . Convention on jurisdiction and the enforcement of judgments - Recognition and enforcement - Grounds for refusal - Document instituting the proceedings not served in due form and in sufficient time on a defendant who fails to appear - Concurrent nature of conditions of due form and sufficient time - Document served in sufficient time but not in due form - Refusal of recognition

( Convention of 27 September 1968, Art . 27(2 ) )

2 . Convention on jurisdiction and the enforcement of judgments - Recognition and enforcement - Grounds for refusal - Document instituting the proceedings not served in due form and in sufficient time on a defendant who fails to appear - Review of service by the courts of the State in which recognition is sought - Curing of defective service - To be determined in accordance with the law of the State in which judgment was given

( Convention of 27 September 1968, Art . 27(2 ) )

Summary

1 . The conditions laid down in Article 27(2 ) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, that a defendant who fails to appear must have been served with the document instituting the proceedings in due form and in sufficient time, must both be met in order for a foreign judgment given against that defendant to be recognized . That provision is therefore to be interpreted as meaning that a judgment given in default of appearance may not be recognized where the document instituting the proceedings was not served on the defendant in due form, even though it was served in sufficient time to enable him to arrange for his defence .

2 . Article 27(2 ) of the Convention is to be interpreted as meaning that questions concerning the curing of defective service are governed by the law of the State in which judgment was given, including any relevant international agreements .

Parties

In Case C-305/88,

REFERENCE to the Court pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters by the Bundesgerichtshof ( Federal Court of Justice ) for a preliminary ruling in the proceedings pending before it between

Isabelle Lancray SA, whose registered office is at Neuilly-sur-Seine ( France ),

and

Peters und Sickert KG, whose registered office is at Essen ( Federal Republic of Germany ),

on the interpretation of Article 27(2 ) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters,

THE COURT ( Sixth Chamber )

composed of : C . N . Kakouris, President of Chamber, F . A . Schockweiler, G . F . Mancini, T . F . O' Higgins and M . Díez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : J . A . Pompe, Deputy Registrar,

after considering the observations submitted on behalf of

Isabelle Lancray SA, by Heinz-Joachim Freund, Rechtsanwalt, Frankfurt;

Peters und Sickert KG, by Dieter Eikelau, Rechtsanwalt, Duesseldorf;

the Government of the Federal Republic of Germany, by C . Boehmer, acting as Agent;

the Government of the French Republic, by Régis de Gouttes, acting as Agent;

the Italian Government, by Oscar Fiumara, acting as Agent; and

the Commission, by Friedrich-Wilhelm Albrecht and G . Cherubini, acting as Agents,

having regard to the Report for the Hearing and further to the hearing on 28 March 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 3 May 1990,

gives the following

Judgment

Grounds

1 By order dated 22 September 1988, which was received at the Court on 19 October 1988, the Bundesgerichtshof referred to the Court for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the...