Skip to main content
SpringerLink
Log in

Recognition and Enforcement of KapMuG Judgments

  • Chapter
  • First Online:
Collective Redress and Private International Law in the EU

  • 521 Accesses

Abstract

Although under the Brussels Regulation it is not required to commence a procedure in order to have a judgment recognised and/or enforced in another Member States, the Regulation contains various grounds based on which the recognition and/or enforcement can be refused. These grounds relate to—among others—the correct service of the parties involved, the rules on public order in the Member States were recognition/enforcement is sought, and possible conflicts with other judgments or procedures in other states. A lot of parties are involved in a collective redress procedure and it depends on the type of mechanism whether and how the parties involved need to be served correctly. This chapter will set out whether a KapMuG judgment can be recognised and or enforced in another Member State based on the rules in the Brussels Regulation.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 109.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD 139.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    See Article 36(1) Brussels I-bis.

  2. 2.

    Case C-45/86, Horst Ludwig Martin Hoffmann v. Adelheid Krieg [1988], ECR 645.

  3. 3.

    Jenard report, p. 43.

  4. 4.

    Rosner 2004, p. 159.

  5. 5.

    Jenard report, p. 49 (As Wautelet stated in Magnus et al. 2016, the statement concerned the possibility of requesting the enforcement of a foreign judgment. It is submitted that it applies likewise to requests for recognition. See Magnus et al. 2016, p. 820).

  6. 6.

    COM (2010) 748 final [14.12.2010], pp. 5–6.

  7. 7.

    COM (2010) 748 final [14.12.2010], p. 8.

  8. 8.

    Insofar as the KapMuG procedure is also seen as an opt-in system, since it is required to file an individual claim first. See Stadler 2009, p. 42.

  9. 9.

    For an insight in the possibilities to see the KapMuG model decision as an object of recognition, please see Reuschle et al. 2008, Section 16, note 33.

  10. 10.

    Not only are pending WCAM settlements promoted heavily through announcements in international newspapers, it is likely that a victim who has started an individual procedure to initiate a KapMuG procedure—and thus has knowledge of the damage he has suffered due to the mass dispute—would also know if other similar actions are pending in other states. He would probably have obtained this knowledge from his attorney, or directly from the perpetrator, who probably wishes to use the collective settlement’s opt-out character to resolve the mass dispute through a single procedure.

  11. 11.

    See Sect. 2.3.

  12. 12.

    Insurance-related matters and matters that come under the rules for exclusive jurisdiction also fall under Article 35(1) Brussels I-bis. Cases provided for in Article 72 Brussels I-bis also fall under the recognition exception of Article 35 Brussels I-bis. Since this book does cover the situation in which parties in a mass dispute are not domiciled in a Member State, I do not discuss this provision.

  13. 13.

    See Briggs 2009, p. 687.

  14. 14.

    Since this last ground relates merely to a violation of the grounds of jurisdiction and does not relate specifically to the collective redress mechanism itself, this book covered only the first four grounds.

  15. 15.

    Jenard Report, p. 46.

  16. 16.

    Magnus et al. 2016, pp. 883–884.

  17. 17.

    Jenard Report, p. 44. See also Kramberger Skerl 2011, pp. 461 et seq.

  18. 18.

    See Commission of the European Communities, Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (1999) 348 final, p. 23 and Rosner 2004, p. 161.

  19. 19.

    Briggs 2009, p. 440.

  20. 20.

    Case C-145/86, Hoffman v. Krieg [1988], ECR 645, para 21 and Case C-78/95, Bernardus Hendrikman and Maria Feyen v. Magenta Druck & Verlag GmbH [1996], ECR I-4943, para 23.

  21. 21.

    Dieter Krombach v. André Bamberski (Case C-7/98), [2000], ECR I-1035.

  22. 22.

    Article 45(3) Brussels I-bis states that the public policy test may not be applied to the rules relating to jurisdiction.

  23. 23.

    Dieter Krombach v. André Bamberski (Case C-7/98), [2000], ECR I-1035, para 37.

  24. 24.

    Examples of case law in which public policy is considered infringed can be found in the Heidelberg Report, pp. 241 et seq.

  25. 25.

    See Magnus et al. 2016, pp. 883–884.

  26. 26.

    Régie nationale des usines Renault SA v. Maxicar SpA and Orazio Formento (Case C-38/98), [2000], ECR I-2973.

  27. 27.

    Renault v. Maxicar, para 4.

  28. 28.

    Ibid, para 34.

  29. 29.

    Case C-394/07, Gambazzi v. Daimler Chrysler Canada Inc. [2009], ECR I-0000, para 48.

  30. 30.

    Magnus et al. 2016, p. 890.

  31. 31.

    Magnus et al. 2016, p. 895.

  32. 32.

    This would occur only if the procedure is commenced before a court which is not the court of the defendant’s domicile, nor the court where the damage occurred (in the case of a tort case), and/or not the court where the performance of the obligation took place (in the case of a contractual matter). Moreover, the defendant could not have appeared before the court voluntarily (Article 26 Brussels I-bis). From a collective redress perspective, such an event would take place when, for example, a French company is sued in Germany by a Dutch plaintiff and the damage occurred in France. Should the French company not enter an appearance, Article 28(1) Brussels I-bis would prevent the German court from having jurisdiction.

  33. 33.

    See Briggs 2009, p. 693 and Case C-420/07, Apostolides v. Orams [2009], ECR I-0000, para 78.

  34. 34.

    The court of the individual procedure that that will, among other things, initiate the model case procedure, will look at the notification, as will the court that has jurisdiction over the model case procedure. The latter court will have to be sure that there are also other procedures that are pending and could use the model case procedure.

  35. 35.

    Jenard Report, p. 45. See also Briggs 2009, p. 699.

  36. 36.

    In the event of multiple defendants and the use of Article 8(1) Brussels I-bis.

  37. 37.

    It must be noted that the scope of both Articles 45(1)(c) and 45(1)(d) Brussels I-bis is narrower than that of Articles 27 and 28 Brussels I-bis, as neither Articles 45(1)(c) nor 45(1)(d) Brussels I-bis cover the case of related actions. See Magnus et al. 2016, p. 919.

  38. 38.

    Hoffman v. Krieg, para 22.

  39. 39.

    See Briggs 2009, p. 699.

  40. 40.

    Case C-414/92 Solo Kleinmotoren GmbH v. Emilio Boch [1994], ECR I-2237.

  41. 41.

    Magnus et al. 2016, p. 924.

  42. 42.

    See Briggs 2009, pp. 701 et seq.

  43. 43.

    Case C-144/86, Gubisch Maschinenfabrik v. Palumbo [1987], ECR 4861.

  44. 44.

    For more examples, see Briggs 2009, p. 701.

  45. 45.

    Magnus et al. 2016, pp. 925–926. Because Article 45(1)(c) Brussels I-bis can be used even when a judgment in the local state was not given first, this provision can also be seen as a distinction to the public policy ground for refusal of recognition and enforcement of judgments, as local rules/local judgments can be given preference. See for example the request of the Dutch Supreme Court for a preliminary ruling with respect to Article 45(1)(c) dated 28 November 2008 (NJ 2008/624). Because the case was dropped, these questions, however, remained unanswered.

  46. 46.

    ECJ Hoffman v. Krieg, para 25.

  47. 47.

    Which means that the earlier judgment may not be manifestly contrary to public policy or given in default of appearance.

  48. 48.

    Since the earlier irreconcilable judgment was given in this Member State only.

  49. 49.

    It is, however, possible to attribute the fact that the KapMuG judgment is not recognisable to the lis pendens rule. This rule should have prevented the irreconcilable procedures in the first place.

References

  • Briggs A (2009) Civil Jurisdiction and Judgments. Informa Law, London

    Google Scholar 

  • Kramberger Skerl J (2011) ‘European Public Policy’. Journal of Private International Law

    Google Scholar 

  • Magnus U et al (2016) ‘Brussels I Regulation’. Sellier, Munich

    Google Scholar 

  • Reuschle F et al (2008). Kölner kommentar zum Kapmug. Verlag C.H. Beck, Munich

    Google Scholar 

  • Rosner N (2004) Cross-border recognition and enforcement of foreign money judgments in civil and commercial matters. Thesis Groningen University

    Google Scholar 

  • Stadler A (2009) A test case in Germany: 16,000 private investors vs. Deutsche Telekom. ERA Forum 10

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Supreme Court of the Netherlands, The Hague, The Netherlands

    Thijs Bosters

Authors
  1. Thijs Bosters
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Thijs Bosters .

Rights and permissions

Reprints and permissions

Copyright information

© 2017 T.M.C. Asser Press and the author

About this chapter

Cite this chapter

Bosters, T. (2017). Recognition and Enforcement of KapMuG Judgments. In: Collective Redress and Private International Law in the EU. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-186-9_10

Download citation

  • DOI: https://doi.org/10.1007/978-94-6265-186-9_10

  • Published:

  • Publisher Name: T.M.C. Asser Press, The Hague

  • Print ISBN: 978-94-6265-185-2

  • Online ISBN: 978-94-6265-186-9

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation