CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ RESPONSIBILITY OF THE STATE FOR THE FOREIGN JUDGMENTS … The Cyprus default judgment, which was subject to recognition, was issued without the applicant’s presence, solely on the basis of the information provided by the plaintiff. The summons was sent to the applicant at the Latvian address indicated in the acknowledgment of the debt, concluded by the applicant (as a debtor) with the plaintiff (as a creditor) before a notary. However, the applicant argued that this address was only a place of signing the acknowledgment of a debt deed, with all the plaintiff and his lawyers knowing his business address in Riga. In addition, his home address could easily be identified via the local real estate registry. The applicant was therefore not informed about the proceedings before the Cypriot court until the enforcement of the Cypriot judgment was ordered in Latvia. The applicant based an appeal on these statements against enforcement of the Cypriot judgment to the Supreme Court of Latvia. The decision of the Cypriot court fell into the category of those decisions that may be subject to a certain, albeit minimal, survey in the state of their recognition and enforcement. It was possible to refuse to recognize or enforce such a decision for one of the reasons set out in Articles 34 and 35 of the Regulation (EC) no 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Brussels I. 35 In particular, Article 34 (2) allowed the recognition and enforcement of a foreign judgment to be refused if it was issued without the defendant’s attendance, or if the document informing him about proceedings was not served on the defendant in sufficient time and in such a way as to enable him to prepare his defence, unless the defendant failed to challenge the judgment once he was able to do so. The Latvian Supreme Court merely limited itself to finding that the applicant had not appealed against the Cypriot judgment, stating that there was no reason to examine the applicant´s and his lawyer’s observations that he had not been informed about the proceedings before the Cypriot court. The Court accused the Latvian court of a formalist approach: „ the Supreme Court tacitly presumed either that the burden of proof lay with the defendant or that such a remedy had in fact been available to the applicant. This approach, which reflects a literal and automatic application of Article 34(2) of the Brussels I Regulation, could in theory lead to a finding that the protection afforded was manifestly deficient ” (§ 121 of the judgment). Nevertheless, the Court released the Latvian court from liability for infringement of Article 6 (1) of the European Convention, on the grounds that at the time when the applicant had learned of the existence of the Cypriot judgment, there was a realistic opportunity, under Cypriot law, to challenge the default judgment and the applicant, as a businessman, should have been aware of the legal consequences of the acknowledgment of debt he had signed and which included a choice of court clause. According to the Court, the applicant thus contributed to the situation by his negligence. 36 Thus, the Court found itself in a situation where, on the one hand, it had identified on the part of the Contracting State, a practice which had features of a breach of the European Convention, on the other hand, in an attempt to respect the European Union and its system 35 The previous Regulation (EC) 44/2001 was replaced as from 10 January 2015 by the new Regulation (EU) no. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Brussels I.bis. Article 34 of the original Regulation corresponds to Article 45 of the Regulation currently in force. 36 That conclusion was called into question in both the Concurring Opinion of Judges Lemmens and Briede and the Dissenting Opinion of Judge Sajó, annexed to the judgment.

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