This is the interesting question that the French supreme court for private matters (Cour de cassation) addressed in a judgement of March 6, 2007.
The argument was raised in respect of the rule allowing to seek a decision of enforceability of the foreign judgement ex parte. Article 34 of the 1968 Brussels Convention provided:
the party against whom enforcement is sought shall not at this stage of the proceedings be allowed to make any submissions on the application.
In this case, a Belgian bank, Fortis, had sued in Belgium two spouses domiciled in France. The Court of appeal of Mons, Belgium, had ruled in favour of the bank, which sought enforcement of the judgement in France. The Belgian judgement was declared enforceable by a French first instance court. The defendants appealed to the Court of appeal of Amiens and lost. They then appealed to the Cour de cassation. Their only argument was that the proceedings in the first instance in France were a violation of their right to a fair trial, as they were ex parte proceedings. The Cour de cassation held that there was no such violation as they were entiteld to appeal. The appeal was thus dismissed (again).
This case raises two issues. The first is anecdotal. It is fascinating to see that the defendants could take this case up to the French supreme court. The Belgian judgement was made in 2001, and it seems that the enforcement proceedings took six years.
The second issue is much more interesting. Could the Brussels Convention or the Brussels I Regulation be found to be in violation of the European Convention of Human Rights (ECHR)? Before the Cour de cassation, the defendants argued that the ECHR was superior to any treaty concluded by the French state. In Fortis, the Court does not directly deal with the argument, but it indirectly addresses it since it accepts to rule on whether article 34 complies with article 6 ECHR.
Obviously, the Cour de cassation will only give the point of view of the French legal order. The Strasbourg or the Luxembourg courts would certainly have different views on this.
Was the issue addressed elsewhere in Europe?