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15 October 2013
On June 19 2013 the High Court ruled(1) that Article 34(2) of the Brussels I Regulation, which prevents a judgment from being recognised if the defendant was not granted sufficient opportunity to defend himself or herself against the claim, is applicable only if the document initiating the proceedings was served on the defendant in a way such that he or she could raise a defence against the lawsuit.
The proper service in accordance with the laws of the state of origin is no longer relevant (although it was previously governed by Article 27(2) of the 1968 Brussels Convention). The only matter of relevance is that the defendant's rights to defend himself or herself against the lawsuit were indeed respected.
In the case at hand, the court found that the lawsuit that led to the court order being enforced was served on the defendant with a translation in German and with a notice detailing the consequences if the defendant failed to respond. Therefore, the defendant's rights were not restricted in the original proceeding. The fact that the defendant was not served with the court order itself because the defendant failed to appoint a person who would have been authorised to receive service of the court order does not change this.
The proper service in accordance with the laws of the state of origin is not relevant. The only matter of relevance is that a defendant's rights to defend himself or herself against the lawsuit are respected.
For further information on this topic please contact Klaus Oblin at Oblin Melichar by telephone (+43 1 505 37 05), fax (+43 1 505 37 05 10) or email (email@example.com). The Oblin Melichar website can be accessed at www.oblin.at.
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