JOINT DISSENTING OPINION OF JUDGES ZIEMELE, BIANKU AND DE GAETANO

1. Regretfully, we do not share the view of the majority in this case. We consider that the case raises a question of great importance, notably the application of Article 6 guarantees by the domestic courts of an EU Member State in circumstances where they are called upon to execute a judgment rendered in another EU Member State and thus apply Council Regulation (EC) No 44/2001 (Brussels I).

2. It should be underlined that the applicant made important submissions in the domestic courts, arguing that he had not been properly informed of the court proceedings in Cyprus and therefore had been unable to exercise his right to defend himself in those proceedings (see paragraphs 18-19 of the judgment). Indeed the Regional Court accepted those arguments and rejected the request for execution of the Cypriot judgment. The Supreme Court quashed the Regional Court ’ s judgment and granted the request for execution. We find it highly problematic that the only reason given by the Supreme Court for refusing to uphold the applicant ’ s allegations of not having been duly notified of the Cypriot judgment was to say that those arguments “ [ were ] of no importance ” (see paragraph 22).

3. It is true that this Court is not a court of fourth instance. The Court has always reiterated that its power to review compliance with domestic law is limited, as it is in the first place for the national authorities to interpret and apply that law (see Mkrtchyan v. Armenia , no. 6562/03, § 43, 11 January 2007 ). However, the majority did not consider that this was a fourth ‑ instance case. The majority based their finding that there had been no violation of Article 6 on two grounds. First, they referred to the Bosphorus principle, saying that the standard of protection of fundamental rights in the EU was equivalent to that required under the Convention (see paragraph 47), and that compliance with the obligations flowing from the State ’ s membership of the EU was a matter of general interest (see paragraph 49). Second, they considered that the applicant should have known that he had to repay the debt and should not therefore have been surprised that he was pursued by the creditor in the courts in Cyprus (see paragraph 51).

4. Our difficulty with the reasons given by the majority is threefold. First, views may differ as concerns the applicant ’ s good faith. That is not an issue to be considered by this Court, however, and still less an issue that should be turned into one of the main reasons for its findings. It is a matter for the domestic courts. Second, EU Regulations are directly applicable in the EU Member States, which means that national authorities should apply the relevant legal provisions while also taking into consideration the case ‑ law of the EU Court of Justice. The Brussels Regulation provides for exceptions to automatic execution of judgments, notably in Article 34 ( 2 ) . We also note that the Court of Justice has spelt out that where the defendant claims, under Article 34 ( 2 ) , not to have been properly notified the judge of the receiving State is competent to examine the evidence (see paragraph 29, and also 26). In other words, the applicable EU law does not provide for blind automaticity as concerns the execution of judgments. Third, we note that in accordance with the Court ’ s well ‑ established case-law A rticle 6 § 1 of the Convention embodies the “ right to a court ” , of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect. T he principle of equality of arms is one element of the broader concept of a fair trial within the meaning of that provision. It requires a “ fair balance ” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent or opponents (see, for example , Gorraiz Lizarraga and Others v. Spain, no. 62543/00 , § 56 , ECHR 2004 ‑ III) . As these principles are aimed at all aspects of the procedural law of the Contracting States, they also apply to this particular area of service of judicial documents on the parties (see Miholapa v. Latvia , no. 61655/00, § 23, 31 May 2007 ) . Contrary to the majority, we consider the answer given by the Supreme Court of Latvia to the applicant ’ s submission that he was not properly notified of the judgment of the Cypriot courts totally insufficient to meet the requirements of Article 6 and especially bearing in mind the applicable EU law.

5. The answer that the applicant ’ s arguments, which go to the very essence of the issue before the Latvian courts, have no importance is clearly contrary to Article 6 guarantees. It should have been for the domestic courts to examine and give reasons why, for example, the exception relied on could not be maintained on the facts of the case. There probably were good reasons, but we do not know what they were. Still less is it for us to provide such reasons. The fact remains that the majority have departed from the Court ’ s case-law. Additionally, we are not sure that the implicit approval of the manner in which the Latvian Supreme Court applied the EU law is in fact consistent with EU law. While the Court is not competent to interpret EU law, we submit that it should not implicitly approve of domestic practices that may go against EU law. This is a new situation for the Court which merits very serious further reflection.