Abstract
EU Member State judgments given in legal proceedings instituted on or after January 10, 2015, in civil or commercial matters, will be enforced in another Member State according to the Brussels Ibis Regulation, Regulation (EU) no 1215/2012. The Brussels Ibis Regulation provides for a new framework where a declaration of enforceability is no longer required in the Member State addressed; with the abolition of exequatur the focal point of the system shifts to enforcement proceedings. While the Brussels Ibis Regulation specifies a few rules that directly impact national enforcement rules, many others of its intended rules require the assistance of the national lawmakers to be implemented. Whether this represents a true step forward towards the free movement of decisions, meaning less costly and time-consuming cross-border litigation, remains to be seen.
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Notes
- 1.
Article 220 Treaty of Rome, 25 March 1957.
- 2.
Regulation (EC) No 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims; Regulation (EC) No. 861/2007 of 11 July 2007 establishing a European Small Claims Procedure; Regulation (EC) No. 1896/2006 of 12 December creating a European Order for Payment Procedure, and Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law and enforcement of decisions and cooperation in matters of maintenance obligations (for Member States also parties to the 2007 Hague Protocol). More restrictively, also Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/200.
- 3.
Proposal for a Regulation of the European Parliament and the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM (2010) 748 final.
- 4.
The expression is borrowed from López de Tejada 2013, Deuxième Partie, Titre I. Academic antagonism to the Commission’s proposal led to countless comments and papers. Among many others Kramberger Škerl 2011, pp. 461–490, and Schack 2011, pp. 1345–1358, both in favour of keeping the public policy scope mechanism to defend intrinsic EU values. Kramer 2012, p. 132, supports the public policy clause to fight globally condemned crimes such as corruption (i.e., to deny recognition or enforcement of judgments delivered by corrupted courts). Kuiper 2010, pp. 23–51, concentrates on the ordre public of the forum.
- 5.
- 6.
For the sake of simplicity our departing point will be a final monetary judgment. Provisional enforcement as well as enforcement of other instruments is briefly addressed.
- 7.
See Article 39, Article 40, recitals 26, 28. The principle of extension of effects is also endorsed, although less enthusiastically: see Article 54. Some authors also allude to the “principle of adaptation”, to be found under Article 54: Nuyts 2013a, para 2; id. 2013b, para 15. In our view adaptation is not a principle, but a necessity, which according to Article 54 shall follow the principle of extension of effects.
- 8.
The claimant is also entitled to ask for a declaration that no grounds for refusal of recognition (meaning those of Article 45) exist. According to the Regulation, the procedure will be the same as the one provided for the implementation of Article 46 (refusal of enforcement).
- 9.
As some writings seem to suggest: see Nuyts 2013a, no. 2, 3.
- 10.
Acción ejecutiva: Articles 517 ff Ley de Enjuiciamiento Civil (LEC). Spain seems nevertheless to be one of the few Member States where an intermediate judicial intervention in needed.
- 11.
In Spain, Article 548 LEC: enforcement is not allowed until 20 days have elapsed since the decision on the merits becomes final. A discretional (i.e., non-automatic) délai de grace exists in other countries, such as France, Article 1244-1 to 1244-3 Code Civil.
- 12.
Only to the extent nonetheless that they are not incompatible with the grounds referred to in Article 45: see Article 41.2, recital no. 30. On the doubts about what the compatibility requirement really entails see below under Sect. 4.4.2.2.
- 13.
Both rules are meant to protect the judgment debtor against risks potentially concurring at the stage of the enforcement, derived from the cross-border nature of the dispute.
- 14.
No reference is made to the consequences on the enforcement of an ordinary appeal lodged against the judgment in the Member State of origin (or to the time for such an appeal not having expired yet).
- 15.
See Landsgericht Bonn, 04.03.2003, RIW, 2003, p. 388. On a freezing order as a protective measure within Article 47 Brussels I regulation see Banco Nacional de Comercio Exterior SNC v. Empresa de Telecomunicaciones de Cuba SA, [2007] EWCA Civ 662, [2007] I.L.Pr. 51.
- 16.
For instance the German § 845 ZPO, “1. Based on an enforceable deed of title, the creditor may have a notice served on the third-party debtor and the debtor, even prior to the attachment, that the attachment is imminent, which is to include the notice to the third-party debtor that he is to not make payment to the debtor, and the notice to the debtor to forgo any disposition over the claim, in particular its collection” (translation: bmjv.de).
- 17.
For instance Article 551.3.2 and Article 554 LEC, in Spain. See also Article 14 Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters.
- 18.
The compulsory nature of the certificate supports its characterisation as part of the enforcement title. However, it would also entail consequences which may not be acceptable within the EU legal and policy framework: for instance, its inaccuracy could build a defence of the debtor against enforcement in the Member State addressed, based on the lack of enforceability of the title. Ramos Romeu 2006, 126, discusses (and rejects) this interpretation regarding the EEO Regulation, in the light of Article 10; but this is precisely the provision missing under the new Regulation.
- 19.
Pohl 2013, p. 113. That’s why the lack of certain information therein is the more stricking: see below, under 4.1.1.
- 20.
This is a possible reading of recital 30. Vice versa, it could be read as suggesting the relocation of the national grounds to oppose enforcement of the proceedings where the grounds provided for by the Regulation to same aim are to be argued.
- 21.
This is likely to be the solution where in compliance with article 75 of the Regulation a Member State has stuck to the authorities already competent for the exequatur under the Brussels I Regulation.
- 22.
BGBl. 2014 I 890. A description and critical study of the provisions is to be found in Schlosser and Hess 2015, Articles 53 ff.
- 23.
- 24.
Below, under 4.2.
- 25.
Amendments have also been introduced in Scotland by the Act of Sederunt (Rules of the Court of Session Amendment) (Regulation (EU) No. 1215/2012) 2015, in force from February 7, 2015, in consequence of the coming into force of the Brussels Ibis Regulation. Most of the reform consists nevertheless in the introduction of forms for applications.
- 26.
The Civil Jurisdiction and Judgments (Amendment) Regulations 2014.
- 27.
But also Belgium and France. The fact that the application for refusal of enforcement entails an exam beyond mere formal requirements has led French scholars to propose coming back to the solution under the Brussels Convention, thus to the President of the Tribunal de Grande Instance: Cuniberti 2013, p. 28. The juge de l’exécution could nevertheless provide an alternative, for the sake of efficiency: id. loc.
- 28.
Proposals for the modification of the Ley de Enjuiciamiento Civil (LEC) were before the Parliament at the time of writing, which did not include any reference to the Regulation. An amendment to the LEC was enacted on July 30, 2015, addressing some of the points we described in the text.
- 29.
A (not very precise, and only updated to September 2013) translation is to be found at http://www.mjusticia.gob.es/cs/Satellite/Portal/es/servicios-ciudadano/documentacion-publicaciones/publicaciones/traducciones-derecho-espanol?param1=1288775993122.
- 30.
As opposed to provisional enforcement. The current rules on provisional enforcement are largely unsuitable to implement the Regulation recast: objections are admitted against specific measures, but not against the despacho de ejecución as such, Article 528.3; no appeal is allowed against the decision on the objections to enforcement, Article 530.4. As already stated above, Footnote 6, for the sake of simplicity this paper only addresses final decisions.
- 31.
The creditor is entitled to contest to the objection, i.e., the proceedings are contradictory at this stage (Article 529.2 for provisional enforcement; Articles 559.2, 560 for ordinary enforcement).
- 32.
Indeed, the question is not completely new: see Garcimartín Alférez 2006, para 125; Ramos Romeu 2006, p. 127, following F. Gascón Inchausti; also, on Article 22.1 EPO Regulation, S. García Cano 2008, para 202. It is interesting to note that the grounds for opposition are treated successively (procedural ones in the first place; substantive grounds will only be addressed at a second stage), and even differently (a hearing may take place if required by the parties to discuss substantive grounds). Actually, the idea that the grounds of Article 45 are akin to substantive objections, i.e., objections on the merits addressed against the claim itself, has been endorsed by some national case law: see Hoge Raad 05.03.2002, cited by Van der Grinten 2006, p. 75, Footnote 11, public policy cannot be invoked in an appeal against the granting of an exequatur when it could have been invoked in the proceedings in the Member State of origin if an appeal had been lodged.
- 33.
The exequatur decision in Spain takes the form of an Auto; appeal on cassation for autos is not admitted in Spain as a general rule. However, being imposed by the Brussels I Regulation it had to be accepted in Spain.
- 34.
The rule provides for the up-keeping of the protective measures already adopted, upon security given by the creditor.
- 35.
Appeal under final decisions is limited to very specific circumstances (revisión or rescisión de sentencia firme dictada en rebeldía).
- 36.
Gascón Inchausti 2014, para 20.
- 37.
Linke and Hau 2015, para 14.24.
- 38.
Linke and Hau 2015, para 14.24.
- 39.
Above, under 2.3.1.
- 40.
This may be a compulsory mention to be included in the decision according to national law: see in Spain Article 208 LEC. However, it would have made sense to have it in the certificate.
- 41.
Nor does it provide for a control by the authority at the State of origin, as imposed by Article 10 EEO Regulation. The fact that such exam can still be performed at the initiative of the debtor in the Member State addressed accounts for the difference of the Regulations in this point.
- 42.
Resort to the EEO rules may help in this regard.
- 43.
- 44.
Gascón Inchausti 2014, para 44.
- 45.
Timmer 2013, p. 140. Actually, a similar mistrust of the domestic enforcement bodies had been expressed by AG Kokott in case C-92/12 PPU, Health Service Executive, delivered on 28 March 2012, para 68–75: they “would not really be in a position to undertake any assessment of a foreign judgment submitted to them, in particular to examine the conditions governing the enforceability of the judgment and to infer from it the nature and extent of the enforcement to be effected”.
- 46.
Nuyts 20013a, para 3; Bureau and Muir-Watt 2014, para 298. This was not the case in other countries, such as Spain.
- 47.
Some hints have been given by the CJEU in cases C- 394/07, EU:C:2009:219, and C-235/09, EU:C:2011:238.
- 48.
Van Boxstael 2015, para 80. The huissiers hold a diplôme en droit and have usually followed further legal studies. Besides, according to the scholars, in case of doubt both the huissier and the parties should be allowed to request the intervention of the judge. Whether this will be the juge des saisies (Nuyts 2013a, para 3), or the first instance judge (Van Boxstael 2015, para 80) remains to be seen.
- 49.
Schlosser and Hess, “Article 54”, section 4. The criticism comprises also the way chosen by the German lawmaker to protest against the outcome of the adaptation, in that it is considered as a measure of enforcement, and not as a proper decision.
- 50.
Gascón Inchausti 2014, para 32, highlights the negative impact of the provision on the dynamics of enforcement—the service is likely to trigger debtor’s steps to conceal his state. Cuniberti 2013, p. 27, points rather to the inconsistency of the rule with the goal of building up a border-free European area.
- 51.
See above, Footnote 13.
- 52.
It is worth noting that according to the Regulation all translations shall be done by a qualified person (Article 57.3); more lenient rules such as Article 144 Spanish LEC do not apply.
- 53.
It is up to the national lawmaker to pass on the cost to the judgment debtor. Indeed, costs and risks may finally turn against the debtor; the fact remains that in the meantime they also work against the claimant.
- 54.
See above, Footnote 23.
- 55.
See below the doubts on the actual meaning and scope of this possibility.
- 56.
The possibility to contest the measure is opened to both parties.
- 57.
Gascón Inchausti 2014, para 24 in fine.
- 58.
A very simple example relates to the need for representation and legal counsel at the enforcement stage. In some legal systems representation at this point is not required if it was not compulsory at the cognizance proceedings (see Article 539 LEC). In a cross-border scenario the question arises which forum is to be looked at in order to determine whether the involvement of the professionals is mandatory.
- 59.
Above, Footnote 46; Timmer 2013, pp. 137–138.
- 60.
In most systems that day fixed the starting point for the delay to run. It was nevertheless not the case everywhere: see for Spain the Sentencia of the Tribunal Supremo, 16.10.2014, ES:TS:2014:4838, at para 4, the relevant moment is finality of the decision in the State of origin; the application for a declaration of enforceability (Articles 38 ff Brussels I regulation) is deemed to be part of the enforcement proceedings themselves for the purposes of prescription on the application.
- 61.
Automatically (Article 548 Spanish LEC), or upon request of the debtor and discretional for the judge (France, Article 1244-1 to 1244-3 Code Civil).
- 62.
The lex cause being here the legal system of the Member State of origin.
- 63.
According to case C-415/11, EU:C:2013:164, Aziz, no. 50 ff, equivalence in the context of enforcement is to be understood as follows: “In that regard, in the absence of harmonisation of the national mechanisms for enforcement, the rules (…) are a matter for the national legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, on condition, however, that they are no less favourable than those governing similar domestic actions (principle of equivalence) (…).” A further consequence of the principle of equivalence is probably that while it forbids a less favorable treatment of foreign decisions, it does not prevent a better one (inverse discrimination).
- 64.
The exact meaning of the principle of extension is not easy to ascertain in the light of assertions like the closing ones in no. 66 of case C- 420/07: “In that connection, although recognition must have the effect, in principle, of conferring on judgments the authority and effectiveness accorded to them in the Member State in which they were given (see Hoffmann, paras 10 and 11), there is however no reason for granting to a judgment, when it is enforced, rights which it does not have in the Member State of origin (…) or effects that a similar judgment given directly in the Member State in which enforcement is sought would not have” (emphasis added).
- 65.
See Article 21.2 Regulation 4/2009, where exequatur has also been dropped among Member States bound by the Hague Protocol 2007: The competent authority in the Member State of enforcement shall, on application by the debtor, refuse, either wholly or in part, the enforcement of the decision of the court of origin if the right to enforce the decision of the court of origin is extinguished by the effect of prescription or the limitation of action, either under the law of the Member State of origin or under the law of the Member State of enforcement, whichever provides for the longer limitation period”.
- 66.
López de Tejada 2013, para 362 ff.
- 67.
The period of grace is also an example: see Ramos Romeu 2006, p. 122.
- 68.
See for instance Civ. 1re, 19.03.1991, Rev. crit. dr.int. pr., 1992, p. 108, note Ancel; the Sentencia of the Tribunal Supremo, 16.10.2014, ES:TS:2014:4838.
- 69.
12 years in Ireland; 5 years in Spain; 30 years in Germany.
- 70.
CJEC, as. 145/1986.
- 71.
The prototypical example of substantive objections in this sense is § 767 ZPO. Similar provisions, or rules amounting to the same effect, are to be found in other legal systems: see Bittmann 2008, pp. 182–194.
- 72.
Case C 267/97, EU:C:1999:213.
- 73.
The confusion between recognition and exequatur, on the one hand, and exequatur and enforcement on the other, has been a recurrent feature of Spanish case law constantly denounced by scholars (see already Remiro Brotóns 1974, p. 305; Domínguez 1981, pp. 162–163), which fortunately happens very seldom nowadays.
- 74.
López de Tejada 2013, para 350 ff.
- 75.
Hess 2004, p. 494, with further references; Bittmann 2015, p. 134. In France, the same question has arisen regarding the jurisdiction to accord the delai de grâce: the answer depends on the opinion on whether it addresses the debt that has been declared in the Member State of the origin, or whether it targets the effects of the decision on exequatur. See Muir Watt 1995, p. 735 (Note to Cour d’Appel de Paris (1er Ch.), 09.03.1995).
- 76.
The OLG Köln, 21.11.2012 dealt with material objections (those of §767 ZPO) to the enforcement of an Austrian court settlement in Germany: IPRax, 2015, p. 158. According to the court’s view they should be discussed and decided by the enforcing court, and not by the court in the Member State of delivery of the settlement.
- 77.
Bittmann 2015, p. 129.
- 78.
CJEU, as. C-139/10.
- 79.
The question was framed generally, envisaging grounds other than one of those specified in Articles 34 and 35 of the Brussels I Regulation, which have been advanced against enforcement of the judgment declared enforceable and which arose after that judgment had been delivered.
- 80.
At no. 40.
- 81.
- 82.
Garcimartín Alférez 2006, para 124, Footnote 12, supports a distinction between objections based on facts arising after the decision was rendered, and objections addressing the ab initio validity or efficacity of the title. However, the proposal would not do away with the plurality of procedures: the new grounds would only be discussed in the State of enforcement; the scope of the decision adopted in their regard would remain limited to that State.
- 83.
Bittmann (2008), pp. 194–208.
- 84.
Not being a compulsory document the translations cannot be considered as part of the enforcement title. Of the same view, Gascón Inchausti 2014, para 10, Footnote 24.
- 85.
Above Footnote 18.
- 86.
Above, Spain: the need to assimilate the grounds to those foreseen by the rules in force.
- 87.
Gascón Inchausti 2014, para 42.
- 88.
Actually, in a very lucid way the recital uses the conditional form (“a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed”).
- 89.
Headings in scholarly titles are quite clear in this regard: see Gascón Inchausti 2014, Section 5, “beaucoup de bruit pour rien”.
- 90.
The case of the service of the certificate: above under 4.1.2.
- 91.
Clearly Hess 2014, p. 278, “Die Bevorzugung des Schuldners im Vollstreckungstaat”.
- 92.
Hess 2014, p. 281.
- 93.
No mandatory deadlines are imposed by the regulation to decide on the application; not even the opportunities to appeal have been harmonised. Above, under Sect. 4.4.1.1.
- 94.
Diversity works as a deterrent factor when it comes to consider enforcing a court judgment abroad, and complicates the task of the professionals who advise litigants.
References
Bittmann DC (2008) Vom Exequatur zur qualifizierten Klausererteilungsverfahren. Nomos Verlagsgesellschaft. Baden-Baden, München
Bittmann DC (2015) Die Zulässigkeit materiellrechtlicher Einwendungen gegen einen Europäischen Vollstreckungstitel im Vollstreckungsstaat. Praxis des Internationalen Privat- und Verfahrensrecht 35:129–134
Bureau D, Muir-Watt H (2014) Droit International Privé. Presses Universitaires des France, Paris
Cuniberti G (2013) La réforme du règlement Bruxelles I. Droit et Procédures 2013:26–33
Domínguez Cortés (1981) Derecho procesal civil internacional. EDERSA, Madrid
García Cano S (2008) Estudio sobre el proceso monitorio europeo. Aranzadi, Cizur Menor
Garcimartín Alférez FJ (2006) El título ejecutivo europeo. Civitas, Cizur Menor
Gascón Inchausti F (2014) La reconnaissance et l’exécution des décisions dans le règlement Bruxelles I bis. In: Guinchard E (ed) Le nouveau règlement Bruxelles I bis. Bruylant, Bruxelles, pp 205–247
Hess B (2004) Europäischer Vollstreckungstitel und nationale Vollstreckungsgegenklage. Praxis des Internationalen Privat- und Verfahrensrecht 24:493–494
Hess B (2014) Urteilsfreizügigkeit nach der VO Brussels Ia: bechleunigt oder aufgebremst? In: Festschrift für P. Gottwald zum 70. Geburtstag, C.H. Beck, München, pp 273–281
Kramberger Škerl J (2011) European public policy (with an emphasis on Exequatur proceedings). J Private Int Law 2011:461–490
Kramer X (2012) Approaches to jurisdiction and foreign judgments and the international fight against corruption. International law and the fight against corruption, Mededelingen van de Koninklijke Nederlandse Vereniging voor Internationaal Recht, Preadviezen, 139 (advisory report for the Dutch Royal Society of International Law). T.M.C. Asser Press, The Hague, pp 99–142
Kuiper JJ (2010) The right to a fair trial and the free movement of civil judgments. Croatian Yearb Eur Law Policy 6:23–51
Linke H, Hau W (2015) Internationales Zivilverfahrensrecht. Otto Schmidt, Köln
López de Tejada M (2013) La disparition de l’exequatur dans l’espace judiciaire européenne. Librairie Générale de Droit et de Jurisprudence, Paris
Muir Watt H (1995) Note to Cour d’Appel de Paris (1er Ch). Revue critique de droit international privé 84:735–741
Nuyts A (2013a) Bruxelles I bis: presentation des nouvelles règles sur la competence et l’exécution des décisions en matière civile et commerciale. In : Barnich L, Englert H, Nuyts A, Jafferali R, Actualités en Droit International Privé, Bruylant, Bruxelles, pp 77–134
Nuyts A (2013b) La refonte du règlement Bruxelles I. Revue critique de droit international privé 102:1–41
Pohl M (2013) Die Neufassung der EuGVVO- im Spannungsfeld zwischen Vertrauen und Kontrolle, Praxis des Internationalen Privat- und Verfahrensrecht, (vol):109–114
Ramos Romeu F (2006) El título ejecutivo europeo. Civitas, Cizur Menor
Remiro Brotóns A (1974) Ejecución de sentencias extranjeras en España. Tecnos, Madrid
Schack H (2011) The misguided abolition of exequatur proceedings in the European Union. Festschrift für T. Ercinski, LexisNexis Polska Warschau, pp 1345–1358
Schlosser P, Hess B (2015) EU-Zivilprozessrecht, EuGVVO, EuMahnVO, EuBagVO, EuZVO, EuBVO Kommentar. C.H. Beck, München
Timmer LJ (2013) Abolition of Exequatur under the Brussels I regulation: Ill conceived and premature? J Private Int Law 9:129–147
Van Boxstael JL (2015) De Bruxelles I à Bruxelles Ibis. J des Tribunaux 134:105–108
Van der Grinten P (2006) Abolishing exequatur in the European Union: an alternative. In: Crossing borders (Essays in Honour F. van der Velden). Kluwer, Deventer, pp 71–83
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Isidro, M.R. (2017). The Enforcement of Monetary Final Judgments Under the Brussels Ibis Regulation (A Critical Assessment). In: Lazić, V., Stuij, S. (eds) Brussels Ibis Regulation. Short Studies in Private International Law . T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-147-0_4
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