Recent Legal Developments

Published date01 December 2010
DOI10.1177/1023263X1001700410
Date01 December 2010
Subject MatterRecent 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 oers a common set of
rules for the identication of the competent judicial authority in the case of cross-border
disputes in civil and commercial matters raising conic 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 signicant 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 eectiveness 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), hereaer ‘the proposal ’.
2 Most nota bly, the st udy by profe ssors B. Hess, T. Pfeier 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 specic 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 specic cer ticate9 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 suci 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 conict 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 certicat 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 justies 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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