Recognition Issues
Brussels 1
The Brussels 1 Regulation (Recast) governs the enforcement and recognition of judgements given in other EU states. Judgement recognition is almost automatic. A person seeking to enforce a judgement produces a copy of the judgement and a form of certificate issued by the court that granted the judgement. It may thereafter enforce the judgement in the national in Ireland.
The Brussels 1 Regulation (Recast) applies to civil and commercial proceedings between in EU states. It applies to decisions of a court or tribunal. The court includes authorities designated by as having jurisdiction in matters falling within the scope of the Regulation. There must however be a judicial decision. A self-executing document by a notary is not sufficient.
Brussels 1 Regulation does not apply to particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).
It does not apply to
arbitration,
the status or legal capacity of natural persons,
rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;
wills and succession
bankruptcy proceedings
winding up of insolvent companies or other persons judicial arrangements
compositions analogies proceedings
social security
maintenance obligations
family relationships parentage marriage or affinity.
Several such matters are the subject of separate Regulations and conventions
Brussels 1 Regulation (Recast) applies to the recognition and enforcement of judgement given in one EU state, in another EU state. This does not depend on whether the defendant is resident or domiciled in the EU or a third state.
It does not apply to judgements given against persons domiciled in an EU state in a third country. (Non-EU state) There are circumstances however where the existence of a irreconcilable judgement given by a non-EU state, may justify nonrecognition.
The Brussels Regulation provisions replace the common law provisions. Where they apply there is no option of taking proceedings on the judgment or on foot of the original claim in the domestic state.
A judgement includes any judgement, decree, decision or writ of execution. It must come from a judicial body in a member state which decides on its own authority upon issues between the parties. It has been held to include interlocutory or interim decisions in proceedings. It includes provisional and protective measures provided there has been due process and the defendant has been summoned.
Where the judgement requires a measure or step which has no equivalent under domestic law, a domestic remedy with equivalent effect is to be given insofar as possible under the law of the home state. It must not exceed the scope of the order in the other EU state. A penalty may only be enforceable if it is if an amount that has been finally determined in the other EU state.
The court in the EU state of origin is required to issue on the request of an interested party, a certificate in the form annexed to the Brussels 1 Regulation (Recast). A translation of a judgement where required, is to be rendered into the language of the state of enforcement.
A judgement given in an EU state is to be recognised in the other EU states without any special procedure. Recognition is to give the same authority and effect as a domestic court order. It is necessary to look at the rules of the state of origin to determine the effects of the judgement. The judgement is to be afforded the authority and effectiveness given to it in the EU state of origin in the state in which it is enforced.
Under the earlier version of the Regulation a declaration of enforcement was required. This is no longer applicable under the recast Regulation. An interested party may apply to the domestic court for a decision that there are no grounds for refusal of recognition. This may be done to pre-empt a challenge.
The judgement to be enforced must conform with conditions for proving its authenticity and be given together with the certificate and also a translation where required. A translation is required where the court or authority in the domestic state is unable to proceed in the absence of a translation.
A national court may stay proceedings in which the recognition of the judgement of a court of another state is sought. The proceedings may be suspended in whole or in part if the judgement is challenged in the EU state of origin or if an application is made for a decision as to whether there are grounds for refusal. For example, a stay may be applied for pending appeal. The court considers the potential prejudice and balance of justice.
The judgement must be enforceable in the state of origin. The fact that there may be practical difficulties in enforcing in the state of origin does not deprive the judgement of recognition.
The procedures for the enforcement of judgements are governed by the law of the member state in which enforcement is undertaken. The judgement must be enforceable in the state of enforcement under the same conditions as a judgement given in that state.
The party seeking enforcement need not have an address in the member state of enforcement. He is not required to have an authorised representative unless this is required and mandatory both for nationals and nonnationals.
Where the judgement in another EU state provides provisional protective measure the certificate must
• contain a description of the measure
• certify the court’s jurisdiction as to the substance of the matter and
• certify that the judgement is enforceable in the member state of origin concerned.
Where the measure was taken without the defendant being required to appear, proof must be given of service of the judgement. The judgement itself must be proved to be authentic in the normal way.
The certificate is to be served on the person against whom enforcement is sought, prior to the enforcement measure. The certificate is to be accompanied by the judgement if not already served.
The person enforced against, if domiciled in another state may request a translation in order to challenge enforcement. In this case no measures may be taken other than protective measures before the translation is furnished. This applies to protective measures in the judgement.
If enforcement may be refused by the court in the state of enforcement on the application of the person against whom enforcement is brought.
The domestic court may limit the enforcement proceedings to protective measures. It may make enforcement conditional on security or suspend in whole or in part the enforcement process.
Where the enforceability is suspended in the EU state of origin, the state in which enforcement is sought may on the application of the person affected, suspend enforcement proceedings. No security may be required of a party who applies for enforcement on the ground that he is not a national or is not domiciled or resident in state of enforcement.
The grounds for non-enforcement are limited. They are
• recognition is manifestly contrary to the public policy in the state of enforcement
• judgement was given in default of appearance and the defendant was not served with the document which commenced proceedings or an equivalent document in sufficient time in such a way to enable him to arrange for his defence unless the defendant failed to commence proceedings to change the judgement when it was possible for him to do so
• the judgement is irreconcilable with a judgement given between the same parties in the state of enforcement
• if the judgement is irreconcilable with an earlier judgement given in another EU state or a third state involving the same matter between the same parties provided the earlier decision judgement fulfils the condition necessary for recognition in the state of enforcement
• the judgement conflicts with provisions applicable to insurance, consumer contracts or individual employment contracts.