Recent Legal Developments
Published date | 01 December 2010 |
DOI | 10.1177/1023263X1001700410 |
Date | 01 December 2010 |
Subject Matter | Recent Legal Developments |
17 MJ 4 (2010) 487
RECENT LEGAL DEVELOPMENTS
Commission Proposal for the Rec ast of the Brussels I Regulation
On 14 December, 2010, the European Commis sion released its proposal for a recast of
Regulation 44/2001 on jurisdict ion and the recogn ition and enforcement of judg ments
in civil and com mercial matters (the Brussels I Regulation).1
e proposal seeks to improve the existing Reg ulation, which oers a common set of
rules for the identication of the competent judicial authority in the case of cross-border
disputes in civil and commercial matters raising conic ts of jurisdiction. e Regulat ion
also seeks to ensure t he smooth recognition a nd enforcement of judgments issued in
another Member State through a n ad hoc procedure (exequatur).
e Commission’s proposal ta kes into account s everal stud ies2 on the Reg ulation
and the responses to a public consu ltation on the subject launched in 2009 with a
Green Paper3 and a report.4 Many signicant ch anges are proposed. However, for t he
purpose of this brief analysis, on ly four wil l be considered: the abolition of exequatur,
the extension of the Regulation’s application to international situations, the increase of
the eectiveness of choice of court agreements a nd the improvement of the interface
between the Regu lation and arbitration.
1 COM (2010) 748 nal (14 December 2010), http://ec.europa .eu/justice/policies /civil/docs/
com_2010_748_ en.pdf (last visite d 29.12.2010), hereaer ‘the proposal ’.
2 Most nota bly, the st udy by profe ssors B. Hess, T. Pfeier and P. Schlosser, e Bru ssels I Regulation
44/2001 – Application and en forcement in the EU (C. H. Beck, Munich 2008) (‘e Heidel berg Report’),
http://ec.europa.eu /justice/doc_centre/civ il/studies/doc/study_appl ication_brusse ls_1_en.pdf
(last visite d 29.12.2010).
3 Green Pape r on the review of Council Regulation (EC) no 4 4/2001 on jur isdiction a nd the re cognition
and enforcem ent of judgment s in civil a nd commercial m atters, COM (20 09) 175 nal (21 Apri l 2009),
http://eur-lex.europa.e u/LexUriServ/L exUriServ.do?uri=COM:2 009:0175:FIN:EN:PDF (last visited
29.12.2 010).
4 Report from the Commission to the E uropean Parliament, the Council and th e Europe an Econ omic
and Social C ommittee on the application of council Regulation (EC) no 44/2001 on jurisdiction and
the reco gnition and enforcement of judg ments in civil a nd commercia l matters , COM(2009) 174 nal
(21 April 2009), http://ec.europa.eu/civiljust ice/news/docs/report_ju dgements_en.pdf (last visited
29.12.2 010).
Recent Legal De velopments
488 17 MJ 4 (2010)
e abolition of exequatur
Under the current legal framework of Brussels I, a party seeking enforcement in a Member
State of a judgment delivered in anot her Member State must request in the courts of the
former a declaration of enforceabilit y of t he judgment (exequatur), against wh ich the
other party c an lodge an appeal on specic grounds, li sted in Articles 34 and 35.5
e Commission’s proposal seeks to ensure the automatic enforcement of judgments6
by removing the need for an exequatur 7 and making a judg ment which is enforceable in
a Member State immediately enforceable in another Member State, under the procedural
rules of the latter,8 upon the request of the interested party who needs only to present
a copy of t he judgment and a specic cer ticate9 issued by t he court of origi n.10 e
proposed mecha nism hence ex tends the regime adopted for t he recognition and
enforcement of decisions on maintenance obligations established in Regulation 4/2009
to civ il and commercial matters in general.11 i s rule of ful l ‘mutual recognition’ of
enforceability, however, does not apply to cases of defamation and collec tive redress, for
which the regime of exequ atur still applies.12
However, certain procedura l safeguards are ma intained in order to ensu re the
defendant’s right to a fair trial and his rights of defence as guaranteed in Article 47 EU
Charter on Funda mental Rights.13 e defendant may apply to the competent aut hority
5 ese are: mani fest contrariety of t he judgment to public policy ; the judgment was delivered i n default
of appearance of the defendant, who was not served with the document which instituted the proceedi ngs
or with an equi valent document in suci ent time and in such a way as to enable h im to arrange for his
defence, unle ss the defendant failed to comme nce proceedings to challenge the judgment when it was
possible for him to d o so; the judgment is irreconcilable with a ju dgment given in a disput e between
the same parties in the Membe r State in which enforcement is sought; t he judgment is irreconcilable
with an earl ier judgment given in anoth er Member State or in a third State invol ving the same cause of
action and between the same part ies, provided that the earlier judgment ful ls the conditions necessary
for its recognition i n the Member State addresse d; the judgment conict s with the rules of ju risdiction
relating to consumer and insurance contracts or with the rules of exc lusive jurisdic tion enshrine d in
the Regulat ion.
6 In the expl anatory memorandu m to the proposal, p. 6, the Commis sion explains t he opportunity and
possibilit y of this move by t he fact that ‘judicial cooperation and t he level of tr ust among Member
States has reache d a degree of maturit y which permits the move towards a simpler, less c ostly, and
more automatic system of c irculation of judgment s, removing the exi sting formalit ies among Member
States’.
7 Article 38 of t he proposal.
8 Article 41 of the prop osal.
9 A list of the forms of t hese certicat es is set out in the rst a nnex of the Commission pro posal.
10 Article 42 of t he proposal.
11 Council Regulation (EC) No 4/2009 of 18 D ecember 2008 on jurisdiction, applicable law, recog nition
and enforcement of decisions a nd cooperation in matters re lating to ma intenance obligat ions, [2009]
OJ L 7/1.
12 In the explanatory memorandum the Commission justies th is exclusion b ecause of t he particu larly
sensitive nature of defa mation a nd of the d iversity of the national rules in the mat ter of collective
redress.
13 Explanator y memorandum to the proposa l, p. 6.
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