Non-jurisdictional objections to recognition: general

Any of four grounds which are listed in Article 34 of the Lugano Convention and Regulation 44/2001, or of the five listed in Article 45( 1) of the recast Regulation, will mean that recognition will be refused, and that the judgment will not be liable to be enforced. These are the only[1] grounds, other than the limited jurisdictional objections discussed in the previous paragraph, upon which recognition of a judgment which falls within the scope of Article 1 may be refused.

If none of these objections applies, the judgment must be recognised. This can produce striking results. In Prism Investments BV v. Van Der Meer, a foreign judgment had been given, and the initial stage of registration for enforcement had taken place. The judgment debtor sought to have this set aside on the ground that he had paid the sum due on the foreign judgment, but the European Court held that the objection was inadmissible: it was not provided for in the Regulation, and that was that. The judgment is as arresting as it is odd. It followed that the judgment debtor was left to raise his objection when execution on the judgment took place, which as a response seems pointlessly rigid. But it certainly makes the point about the exhaustive nature of the non-jurisdictional objections which are allowed to be made.

So to the grounds of objection. In some places these are described as substantive, but they are not directed at the substance of the judgment. After all, it is not open to the recognising court to make any assessment of the merits of the claim or of the judgment: in the Convention and the original Regulation the point was actually made twice. It follows that a judgment may not be denied recognition on the basis that the adjudicating court can be shown to have gone off the rails in its determination of the merits, for the very reason that this fact, even if it is a fact, may not be mentioned. However, a court is obviously entitled to conduct so much of a review of the judgment as is necessary to determine whether any of the admissible objections to recognition is made out, even where this involves an examination of the procedure before the foreign court, and even where the merits of that procedure are evaluated. If it is possible to refuse to recognise on grounds of public policy where the judgment is for multiple damages, or is otherwise for what appears to be a grossly excessive sum, for example, it must be open to the court to look into the merits so far as this is necessary to evaluate the objection which is made.

In principle, the non-jurisdictional grounds of objection to recognition are self-contained and are designed not to overlap. Accordingly, an objection that a foreign judgment is not compatible with a local judgment must in principle be dealt with by the particular objection for irreconcilable judgments alone; it may not be repackaged and dealt with under the distinct head of public policy. Likewise, the objection that a defendant was not given a right to be heard, and that this is how a judgment in default of appearance came to be entered against him, falls within the second of the objections, and is not considered in relation to the public policy ground.[2] The reason for this approach may be to prevent the public policy defence from reaching too far, but in Hendricktnan v Magenta Druck & Verlag GmbH3' it put some strain on the law. The defendant complained that he had not been heard in the original court because a lawyer had claimed to be acting on his behalf but without authorisation. As an objection to recognition this was held to fall within the rule which appears in the Convention and Regulation 44/2001 as Article 34(2), and in the recast Regulation as Article 45(l)(b), even though the judgment was, according to its terms and according to the procedural law of the court which gave it, not given as a judgment in default of appearance.

  • [1] C-302/13 flyLAL-Lithuanian Airlines as v Starptautiska lidosta Riga VAS EU:C:2014:2319, [2015] ILPr 28, [46]. Errors of jurisdiction by the original court do not raise issues of public policy, or otherwise justify non-recognition under the Brussels II Regulation: C-455/15 PPU P v Q EU:C:2015:763, [2016] I FLR 337. 2 C-139/10, [2011] ECR 1-9511. 3 For a further and even weirder illustration of the inflexibility of these grounds for non-recognition, see C-157/12 Salzgitter Mannesmann Handel GmbH v SC Laminorul SA EU:C:2013:597, [2014] ILPr 83. 4 Lugano Convention, Arts 36 and 45(2); Regulation 44/2001, Arts 36 and 45(2). In Regulation 1215/2012, once is enough: Art. 52. 5 C-78/95 Hendrickman v Magenta Druck & Verlag GmbH [1996] ECR 1-4943 (despite the fact that the first question was not answered, the answer to it is clear from the terms of the judgment); C-394/07 Gambazzi v Daimler Chrysler Canada Inc [2009] ECR 1-2563, [46]. 6 In England, Protection of Trading Interests Act 1980, Section 5. A suggestion in C-302/13 flyLAL-Lithuanian Airlines as v Starptautiska lidosta Riga VAS EU:C:2014:2319, [2015] ILPr 28, [56], that public policy cannot extend to the protection of purely economic interests, would appear to contradict this; it does not appear to have been properly thought through. 7 145/86 Hoffmann v Krieg [1988] ECR 645.
  • [2] C-78/95 Hendrickman v Magenta Druck & Verlag GmbH [1996] ECR 1-4943. 2 C-78/95, [1996] ECR 1-4943. 3 To put the matter starkly, the nightmarish prospect that an English court might be required to recognise and enforce a Greek judgment against the National Gallery ordering the transfer of the Elgin Marbles to a Greek museum, or an Irish judgment ordering the persons in charge of it to shut down a nuclear-powered electricity generating plant on the Cumbrian coast, will not have made the proposal a palatable one. Such anxieties are certainly not confined to those gazing out from the United Kingdom. 4 Cf in the context of arbitral awards, Soleimany v Soleimany [1999] QB 785. The question may be framed as one asking whether the recognition of the judgment will undermine to an unacceptable degree the policy which would have made the underlying cause of action offensive to English public policy. 5 See also C-394/07 Gambazzi v Daimler Chrysler Canada Inc [2009] ECR 1-2563, [38].
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