Judgment irreconcilable with earlier, recognised, foreign judgment
Regulation 44/2001 and the Lugano Convention provide that recognition will be denied to a judgment from a Member State or Lugano State if that judgment was irreconcilable with an earlier judgment from a non-Member/non-Lugano State that had been given in proceedings between the same parties, involving the same cause of action as the later judgment from a Member/Lugano State, which met the conditions required for its recognition in the State addressed.[1]
However, where the irreconcilability was with the judgment of another Member State, which had already been given and which met the criteria for recognition, neither this provision nor the one dealing with irreconcilability with the forum court’s own judgment would apply.
The gap was filled in the case of recognition under Regulation 1215/2012, to allow the earlier of the two irreconcilable Member State judgments to be recognised, and the later one to be refused recognition. This improvement does not apply to Regulation 44/2001 or the Lugano Convention. What was not legislated for was the possibility of two irreconcilable judgments, in proceedings between the same parties, emerging from the courts of a single Member/Lugano State. In Salzgitter Mannesmann Handel GmbH v SC Laminorul SA,'№ a Romanian claimant sued a German defendant in Romania, but its claim failed and was dismissed. It then brought what appears to have been the very same claim, before the very same court, all over again; and this time it succeeded. It does not appear that the original judgment was judicially annulled, or anything like that; if there is an explanation for such a state of affairs, it does not emerge from the judgment. The German defendant was not notified of the second set of proceedings, but its attempts to have the judgment set aside in Romania, when it did discover what had happened, after it had assumed that the issues were res judicata by reason of the first judgment, were rejected on grounds which, to put the matter more neutrally than it probably deserves, do not appear to have been orthodox. When the claimant sought to enforce the second Romanian judgment in Germany, the European Court held, in a dreary failure of imagination, that there was nothing in Regulation 44/2001 to prevent it. One might have hoped for better than that.
Recognition and the consequences of recognition
According to Jenard, ‘recognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given’. Subject to that point, the principal purpose for which recognition is required will usually be to serve as the springboard for enforcement of the judgment.
The rules for enforcing a judgment which meets the criteria for recognition are examined below; and it is at this point that Regulation 1215/2012 makes a significant departure from the mechanism of Regulation 44/2001 and the Lugano Convention. However, if all a party requires is that the judgment be recognised, no special procedure is required to achieve it:[2] the court must recognise the judgment ex officio, though if the judgment is subject to appeal in the State in which it was given, the determination of whether it qualifies for recognition may itself be stayed.
The circumstances in which a party will seek recognition, as distinct from seeking the enforcement, of the judgment, are essentially defensive in nature. The most common case will be where a successful defendant merely wishes to prevent his opponent from raising the same claim a second time. In such a case, the court will be asked to recognise the first judgment, and the dismissal of the second claim may therefore follow from the national law principles of merger, res judicata, cause of action estoppel, or the like.
Case law has been mostly concerned with the recognition of judgments in personam-, the recognition of judgments in rem may be less straightforward. Take the example of a foreign court adjudicating, ostensibly in rem, that moveable property belongs to a particular person, and therefore not to anyone else. The approach of the Privy Council in Calyon v Michailidis™ was to deny that a Greek judgment was to be recognised as a judgment in rem if the property in question had not been within the territorial jurisdiction of the Greek court. It followed that the Greek judgment did not by itself make it conclusive, as against an alleged dishonest assister who had not been party to the proceedings in Greece, that the property belonged to the claimant. Rational as this appears to be, it must be open to question, for it appears to apply common law principles of judgment recognition and non-recognition, or jurisdictional competence, to a judgment from a Member State in a civil or commercial matter. A preferable route to non-recognition may have been to accept that the judgment was in principle entitled to recognition and was therefore to be given, in principle at least, the effect it had under the law of Greece, but then to find that it would be contrary to public policy for it to be binding on a person who had not been party to the proceedings before the Greek court. All other solutions bristle with difficulty.
- [1] Lugano Convention, Art. 34(4); Regulation 44/2001, Art. 34(4). 2 C-157/12, EU:C:2013:597, [2014] ILPr 83. 3 Though an intelligent guess may be possible. 4 This makes the observation of the Court, that the defendant was required to raise its objections before the Romanian courts, almost offensive. It had tried and tried, and had been blocked at every turn. Mutual trust in the judicial institutions of other Member States had never required so complete a sense of the absurd. 5 The same will be true of the Lugano Convention and of Regulation 1215/2012. 6 [1979] OJ C59/1, 43. This statement was approved by the Court in 145/86 Hoffmann v Krieg [1988] ECR 645, [10], [11], though it was qualified, if to an uncertain extent, in C-420/07 Apostolides v Orams [2009] ECR 1-3571, [66], where it was suggested that a foreign judgment, when recognised, should not, when enforced, have an effect that the judgment would not have had locally.
- [2] Lugano Convention, Art. 33; Regulation 44/2001, Art. 33; Regulation 1215/2012, Art. 36. 2 Lugano Convention, Art. 37; Regulation 44/2001, Art. 37; Regulation 1215/2012, Art. 38. 3 [2009] UKPC 34, [2007-2009] Gib LR 321. It is debatable whether the judgment fell outside the material scope of the Regulation, as it was concerned with property rights arising from succession to the estate of a deceased person; but this point was not mentioned in the judgment, and it is not clear whether this was the reason why the court made quick reference to the common law rules on the recognition of judgments in rem. 4 In the light of C-420/07 Apostolides v Orams [2009] ECR 1-3571, [66], where it was suggested that a foreign judgment, when recognised, should not have an effect, when enforced, that the foreign judgment would not have had in the foreign system, it may have been correct to enquire whether the alleged dishonest assister would have been regarded, in Greek law, as bound by the Greek judgment. There was no obvious reason to ask what effect a non-existent English judgment would have had. 5 145/86 Hoffmann v Krieg [1988] ECR 645. 6 Treating the judgment as one given in default of appearance (by the non-party) would be very difficult as well, for that defence to recognition imposes an effective burden on the individual adversely affected by the judgment to take positive steps to have the judgment set aside once he learns of its existence. However, it is hard to see how an individual can apply to have a judgment in rem set aside if he was not named as a party in the foreign proceedings, for only parties to the judgment appear to have that right: C-167/08 Draka NK Cables Ltd v Omnipol Ltd [2009] ECR 1-3477.
