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The new rules on enforcement of judgments within the European Union: implementation of Regulation No. 1215/2012 as of 10 January 2015
Article | 16/01/15 | 5 min. |
Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was enacted by the European Parliament and the Council on 12 December 2012. The most notable effect of this Regulation is to completely recast the existing status of judgments handed down by the domestic courts of the Member States, providing a whole set of new rules regarding their recognition and enforcement. Going back in time, the Brussels Convention of 27 September 1968 and subsequent Regulation No. 44/2001 of 22 December 2000 had already implemented a simplified process to obtain a declaration of enforceability. With the new provisions of Regulation No. 1215/2012, judgments will hereafter be enforceable in all Member States ‘without any declaration of enforceability being required’.
The pre-existing provisions of Regulation No. 44/2001
Under the Brussels Convention and Regulation No. 44/2001, a party wishing to enforce a judgment in a Member State other than that in which it was issued is required to file an ex parte application to obtain a declaration of enforceability from the competent authority. In France, such a request must be filed with the Chief Clerk (‘greffier en chef’) of the Civil Court (‘Tribunal de grande instance’).
The competent authority examines whether the formalities required by Regulation No. 44/2001 have been complied with and, if such is the case, a declaration of enforceability is issued.
However, although it avoids the burden of adversarial court proceedings, this simplified mechanism remains somewhat unsatisfactory. First, because Regulation No. 44/2001 provides no timeframe for the issuance of the declaration of enforceability: in practice, due to the courts’ heavy workloads, it is not unheard of that several weeks may go by before the application is examined. Second, because once a declaration of enforceability has been issued and served on the respondent, actual enforcement remains subject to the expiry of an appeal period or, where an appeal is filed, to the dismissal of the appeal.
The new provisions of Regulation No. 1215/2012
Immediate enforcement without prior authorisation.
The revised enforcement mechanism enables decisions issued by the courts of all Member States to be enforced within the European Union without prior authorisation.
While an action for recognition of the decision remains available, it is no longer a condition precedent to enforcement. The party wishing to enforce the decision must simply obtain a certificate issued by the court which rendered the decision, stating that such decision is enforceable within the Member State in which it was made.
Thereafter, without any further requirement, protective measures may be implemented. For this purpose, no prior notification of the judgment or certificate to the debtor is required, except where the judgment was issued on an ex parte basis.
Moreover, enforcement measures may be directly carried out, in accordance with the laws of the Member State in which enforcement is sought. In France, therefore, the party wishing to enforce a foreign judgment may instruct a bailiff (‘huissier’), providing a copy of the decision and of the certificate confirming its enforceability in its country of origin.
As a matter of practice, although Regulation No. 1215/2012 does not require a translation of the judgment into the/an official language of the State of enforcement, it is recommended to produce one. Indeed, under certain circumstances the person against whom enforcement is sought is entitled to request a translation and in such cases all enforcement measures are stayed until the request has been complied with.
The certificate and decision must be served on the debtor prior to the enforcement of the decision.
The right to apply for refusal of recognition and enforcement.
In order to avoid the enforcement of a decision issued in another Member State, a debtor may at any time (including prior to any enforcement attempts) apply to a court in order to request a refusal of recognition or enforcement.
Such refusal may only be granted in very limited cases (mainly based on considerations of public policy and due process, or in case of incompatibility with a prior decision). The court may under no circumstances review or revise the substance of the decision. Where the action for refusal of recognition or enforcement is successful, enforcement may be partly or fully stayed or limited to protective measures, or made conditional upon the provision of security by the enforcing party.
The proceedings are adversarial and must be conducted ‘without delay’. Each party is entitled to appeal the decision. The list of competent courts is not yet available but should be published shortly.
Although delayed, the implementation of the new provisions is imminent
This new enforcement mechanism is only applicable to procedures initiated after 10 January 2015: the enforcement of later decisions issued in proceedings already pending at such date therefore remains subject to prior authorisation.
Nonetheless, decisions governed by the new mechanism could be issued very shortly in expedited proceedings and thus the very first implementations may well occur within the coming weeks or months.
Nicolas Gettler - Counsel
Helen J. Adler - Associate