By a ruling of 12 December 2019 in ML v Aktiva Finants OÜ (case C-433/18), the CJEU clarified the interpretation of Article 43(1) and (3) of Regulation No 44/2001 (Brussels I), concerning the exequatur of foreign judgments in civil and commercial matters.
Specifically Article 43(1) provides that the decision on an application for exequatur “may be appealed against by either party”, while, pursuant to Article 43(3), the appeal must be dealt with “in accordance with the rules governing procedure in contradictory matters”.
The case concerned proceedings between ML, a natural person living in Finland, and Aktiva Finants, a legal entity based in Estonia.
The latter had obtained a money judgment in Estonia against ML. The judgment had been declared enforceable in Finland.
ML appealed against such declaration before the Court of Appeal of Helsinki. He complained that the Estonian decision had been given in default of appearance, and that he had not been served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence.
ML also claimed he had not become aware of the procedure as a whole until he was notified of the decision on the exequatur. In addition, according to ML, the Estonian court did not have jurisdiction to hear the case before it.
The Finnish rules of civil procedure provide that appeals may be lodged only where leave for further consideration is granted. The Court of Appeal of Helsinki declined to grant such leave. This brought an end to the appeal lodged by ML.
The Supreme Court of Finland, seised by ML, asked the CJEU to clarify whether, and subject to which conditions, the procedure for granting leave for further consideration is compatible with the effective rights of appeal that are guaranteed for both parties in Article 43(1) of Regulation No 44/2001.
The CJEU decided as follows:
1. Article 43(1) of [Regulation No 44/2001] must be interpreted as not precluding a procedure granting leave for further consideration of an appeal in which, first, a court of appeal rules on the grant of that leave on the basis of the judgment delivered at first instance, the appeal brought before it, any observations of the respondent and, if necessary, other information in the file and, second, leave for further consideration must be granted, in particular, if there are doubts as to the correctness of the judgment in question, if it is not possible to assess the correctness of that judgment without granting leave for further consideration or if there is another significant reason to grant leave for further consideration of the appeal.
2. Article 43(3) of Regulation No 44/2001 must be interpreted as not precluding a procedure examining an appeal against a judgment on the application for a declaration of enforceability which does not require the respondent to be heard in advance when a decision in the respondent’s favour is made.
In his Opinion relating to the case, delivered on 29 July 2019, Advocate General Bobek elaborated on an issue which is not discussed in the CJEU’s ruling: whether the reasons for declining a leave to appeal should be stated.
On this point, the Advocate General concluded as follows:
I consider that Article 43(1) of Regulation No 44/2001 does permit a procedure for granting leave for further consideration, such as that at issue in the main proceedings, provided that, in substantive terms, the grounds of non-enforcement in Articles 34 and 35 of Regulation No 44/2001 can be adduced and taken into account as reasons for granting leave for further consideration and that, in procedural terms, decisions refusing leave for further consideration are mandatorily required to state reasons.
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Specifically Article 43(1) provides that the decision on an application for exequatur “may be appealed against by either party”, while, pursuant to Article 43(3), the appeal must be dealt with “in accordance with the rules governing procedure in contradictory matters”.
The case concerned proceedings between ML, a natural person living in Finland, and Aktiva Finants, a legal entity based in Estonia.
The latter had obtained a money judgment in Estonia against ML. The judgment had been declared enforceable in Finland.
ML appealed against such declaration before the Court of Appeal of Helsinki. He complained that the Estonian decision had been given in default of appearance, and that he had not been served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence.
ML also claimed he had not become aware of the procedure as a whole until he was notified of the decision on the exequatur. In addition, according to ML, the Estonian court did not have jurisdiction to hear the case before it.
The Finnish rules of civil procedure provide that appeals may be lodged only where leave for further consideration is granted. The Court of Appeal of Helsinki declined to grant such leave. This brought an end to the appeal lodged by ML.
The Supreme Court of Finland, seised by ML, asked the CJEU to clarify whether, and subject to which conditions, the procedure for granting leave for further consideration is compatible with the effective rights of appeal that are guaranteed for both parties in Article 43(1) of Regulation No 44/2001.
The CJEU decided as follows:
1. Article 43(1) of [Regulation No 44/2001] must be interpreted as not precluding a procedure granting leave for further consideration of an appeal in which, first, a court of appeal rules on the grant of that leave on the basis of the judgment delivered at first instance, the appeal brought before it, any observations of the respondent and, if necessary, other information in the file and, second, leave for further consideration must be granted, in particular, if there are doubts as to the correctness of the judgment in question, if it is not possible to assess the correctness of that judgment without granting leave for further consideration or if there is another significant reason to grant leave for further consideration of the appeal.
2. Article 43(3) of Regulation No 44/2001 must be interpreted as not precluding a procedure examining an appeal against a judgment on the application for a declaration of enforceability which does not require the respondent to be heard in advance when a decision in the respondent’s favour is made.
In his Opinion relating to the case, delivered on 29 July 2019, Advocate General Bobek elaborated on an issue which is not discussed in the CJEU’s ruling: whether the reasons for declining a leave to appeal should be stated.
On this point, the Advocate General concluded as follows:
I consider that Article 43(1) of Regulation No 44/2001 does permit a procedure for granting leave for further consideration, such as that at issue in the main proceedings, provided that, in substantive terms, the grounds of non-enforcement in Articles 34 and 35 of Regulation No 44/2001 can be adduced and taken into account as reasons for granting leave for further consideration and that, in procedural terms, decisions refusing leave for further consideration are mandatorily required to state reasons.
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