Article 19 of Parliament and Council Regulation (EC) No 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims, read in the light of article 288FEU of the FEU Treaty, did not require member states to establish a review procedure in their national law such as that referred to in article 19. In order to certify a judgment delivered in absentia as a European Enforcement Order, the court ruling on such an application had to satisfy itself that its national law effectively and without exception allowed for a full review, in law and in fact, of such a judgment in the two situations referred to in article 19(1) and that it allowed the periods for challenging a judgment on an uncontested claim to be extended, not only in the event of force majeure, but also where other extraordinary circumstances beyond the debtor’s control prevented him from contesting the claim in question. Article 6 of Regulation No 805/2004 meant that the certification of a judgment as a European Enforcement Order could be carried out only by a judge.

The Court of Justice of the European Union so held on a reference for a preliminary ruling from the hof van beroep te Antwerpen (Court of Appeal, Antwerp), Belgium, in proceedings between Imtech Marine Belgium NV, established in Belgium, and Radio Hellenic SA, established in Greece, concerning the former’s application for certification, as a European Enforcement Order within the meaning of Regulation No 805/2004, of a judgment delivered in absentia in relation to a claim accompanied by a penalty payment and late payment interest.

Article 19(1) of Regulation (EC) No 805/2004 provided: “ … a judgment can only be certified as a European Enforcement Order if the debtor is entitled, under the law of the member state of origin, to apply for a review of the judgment where: (a)(i) the document instituting the proceedings or an equivalent document or, where applicable, the summons to a court hearing, was served by one of the methods provided for in article 14; and (ii) service was not effected in sufficient time to enable him to arrange for his defence, without any fault on his part, or (b) the debtor was prevented from objecting to the claim by reason of force majeure, or due to extraordinary circumstances without any fault on his part, provided in either case that he acts promptly.”

THE COURT (Fourth Chamber) said that in order to respect the debtor’s rights of defence and the right to a fair trial, in order to constitute a review procedure for the purpose of article 19(1) of Regulation No 805/2004, the remedies in question had to allow, first, a full review of the decision, in fact and in law. Secondly, those remedies had to allow a debtor who invoked the existence of one of the situations referred to in article 19(1)(a) and (b) to request such a review outside the ordinary periods laid down by national law for bringing an opposition or an appeal against the judgment. That was the case, inter alia, where the national law provided the possibility to extend those periods in such a way that they started to run again, at the earliest, as from the day on which the debtor was actually in a position to become aware of the content of the judgment or to challenge it. In order to satisfy, specifically, the requirements of article 19(1)(b), the national law had to allow such an extension of the periods for challenging the judgment in question both in the event of force majeure and in that of extraordinary circumstances beyond the control of the debtor, without any fault on his part, since that provision drew a distinction between those two concepts.