Authentic instruments and court-approved settlements
Title/Chapter III deals with the recognition and enforcement of judgments. Though this extends to and includes judgments given by consent, it does not extend to certain other procedural measures by which a dispute may be brought to an end with the consent of the parties. The recognition and enforcement of two such measures is dealt with in Title/Chapter IV, by Articles 57 and 58.
An authentic instrument is a document which has been formally drawn up or registered as such. It must be drawn up by a public official, who will usually be a civil law notary. Under the law of certain States, such as Germany, the instrument may take effect as a conclusive and enforceable statement of indebtedness, without the need to institute court proceedings to obtain an order for payment. According to Article 57, authentic instruments may be enforced in another State in accordance with the procedures in Articles 38 et seq., but so far as the objections to recognition are concerned, the application for enforcement may be refused by the court hearing the inter partes appeal against the order for registration, or hearing the further appeal on a point of law, only if enforcement of the instrument is manifestly contrary to the public policy of the State in which its enforcement is sought. As these instruments are not judgments, the rules which provide for the non-recognition of a foreign judgment[1] by reason of irreconcilability with a local judgment do not apply to them.
A settlement which has been approved by a court in the course of proceedings does not amount to a judgment within the scope of Chapter 111, for it derives its authority from the parties’ agreement, and not from the decision of a court. For this reason it does not enjoy the authority of res judicata.But if it is enforceable in the State in which it was concluded, Article 58 provides that it may be enforced under the same conditions as govern the enforcement of authentic instruments.
Regulation 44/2001 and the European Enforcement Order
A perceived shortcoming of Chapter 111 of Regulation 44/2001 was the extent to which a stalling debtor could frustrate a claimant who had an unanswerable claim for judgment and payment. It is well known that an effective way to defend can be to refuse to engage with the process: a defendant who joins issue with the claimant is in many ways easier to deal with than one who ignores proceedings, does not acknowledge service, and so on. When it comes to the enforcement of judgments under Chapter 111 of Regulation 44/2001, a stalling debtor could still take the relatively few points open to him, and by appealing and further appealing, postpone for months or even years the day when the claimant-creditor could proceed to final measures of enforcement by way of execution. In the meantime, the creditor may have run into financial difficulty of his own: a debtor is in a strong position if creditors are weak or have been weakened by the debt, and the larger the debt, the greater may be the debtor’s hold over the creditor.
Acting on the perception that even Chapter 111 of Regulation 44/2001 was too slow to bring about a final order granting permission to proceed to measures of execution, Regulation 805/2004 provided for a court which had given judgment on an uncontested claim to issue a ‘European Enforcement Order’ certificate in respect of the judgment. The certificate allowed the creditor to present the judgment for recognition and enforcement in any Member State without the need for judicial proceedings to establish the right to enforce the judgment. There was no right of appeal against the decision of the adjudicating court to issue the certificate, and there was limited opportunity for steps to be taken to oppose enforcement in any other Member State.
Regulation 805/2004 did not apply to cases under the Lugano Convention; and in practice it was superseded by the streamlined mechanism for enforcement of judgments under Regulation 1215/2012. In practice, Regulation 805/2004 was little used, at least so far as the United Kingdom is concerned. Even so, the principal innovation of Regulation 1215/2012, as will be seen, was to reflect at least part of the approach in Regulation 805/2004, in providing for the enforcement of judgments on the basis of post-judgment certification by the original court and without the need for a judicial application for an order that the judgment be registered for enforcement. Regulation 805/2004 hardly ever came before the English courts, and its chances of doing so are diminishing fast. For these reasons it is not examined further in this book.
- [1] Article 34(3) and (4). 2 C-414/92 Solo Kleinmotoren GmbH r Boch [1994] ECR 1-2237. 3 C-414/92 Solo Kleinmotoren GmbH v Boch [1994] ECR 1-2237. By contrast, an English judgment by consent, though in some sense not an adjudication, has the authority of res judicata: Landhurst Leasing Pic v Marcq [1998] ILPr 822. See generally (though not for any particular point) Merinson v Yukos International BV [2019] EWCA Civ 830, [2020] QB 336.
