Non-recognition of judgments under Regulation 1215/2012

With a couple of exceptions, the grounds on which a judgment is entitled to be recognised, or to have its recognition opposed (the procedure by which this is done is examined below), are substantially the same as those provided for under Chapter 111 of Regulation 44/2001. Subject to what is said below, the jurisdictional objections to recognition derived from the insurance, consumer contract, and exclusive jurisdiction Sections of Chapter II of the Regulation remain in place, as does the effect of bilateral treaties with Australia and Canada.^[1]

Regulation 1215/2012 adds, as a new jurisdictional objection to recognition, the case in which the judgment conflicted with the employment contract provisions of Section 5 of Chapter II, so rectifying a historic shortcoming in the predecessor instruments, with the consequence that a judgment may be refused recognition of enforcement if the jurisdiction of the original court conflicted with Sections 3, 4, 5, or 6 of Chapter II of Regulation 1215/2012.

The non-jurisdictional objections to recognition, based on public policyjudgments in default of appearance, and irreconcilability with a local or foreign judgment, are also available. The analysis of these grounds of objection which were examined in relation to Regulation 44/2001 applies to Regulation 1215/2012 as well. Though it had been proposed that the public policy ground for non-recognition should not be reproduced in Regulation 1215/2012, this did not command the agreement of the Member States. The substance of Articles 34 and 35 of Regulation 44/2001 is therefore reproduced, without material change, in Regulation 1215/2012 in Article 45(1). It is true that the language used in Articles 45 and 46 suggests that the recognition of the judgment on the stated grounds shall be refused (only) on the application of a party, and that this raises the possibility that a judgment may be recognised even despite a conflict with Sections 3 to 6 of Chapter II unless or until the judgment debtor applies for a refusal of recognition or enforcement, but this may read too much into the language of Article 45, which appears to have been adjusted only to the extent necessary to reflect the fact that the method of enforcement, and therefore the method of bringing these issues before the court for decision, has been altered.

Article 36(1) of Regulation 1215/2012 provides that recognition of a judgment does not require any special procedure, but that any person who wishes to have judicial confirmation of the judgment as one to which no objection is liable to be made may apply for such a declaration that there are no grounds for the refusal of recognition, in accordance with Article 36(2). If he wishes to do that, he will also need to obtain a certificate, issued by the court which gave judgment, for which Article 53 makes provision, and which Annex I to the Regulation sets out in template form. If a

FOREIGN JUDGMENTS UNDER BRUSSELS AND LUGANO RULES person simply wishes a judgment to be recognised, say as res judicata for the purpose of proceedings before the English court, it is not clear whether this certificate is also required to be produced, though as it does not appear to require much effort to obtain it, the point has little practical importance.

Recognition of judgment obtained in breach of agreement to arbitrate

At first sight, Regulation 1215/2012 appears to have paid greater attention to the effect of judgments obtained in civil and commercial matters from the courts of Member States in circumstances in which, as the State called upon to give effect to the judgment would have seen it, the parties had agreed that the dispute should have been dealt with by arbitration. The substance of this point is, however, almost entirely a mirage. It was all dealt with above, and it need not be repeated here.

Enforcement of judgments under Regulation 1215/2012

The principal innovation of Regulation 1215/2012 was to allow a judgment in proceedings which fell within its scope to be enforced in another Member State without needing an application to a court for permission to enforce it or for its registration for the purpose of enforcement, as the case may be, in the particular Member State. No judicial declaration of enforceability in the State or States in which enforcement is to take place is required: the initial work is all done, instead, by the court which handed down the judgment.^[2]

Under Regulation 44/2001 and the Lugano Convention, and all their predecessor instruments, all cross-border enforcement began with a without notice application, to a court, for a judicial order that the judgment be registered for enforcement within the territory of that court. After the application, obtaining and service of the order (and the expense of all three parts), the judgment debtor would be entitled to appeal against the making of the order. Bearing in mind (i) the cost and potential delay caused by the need to obtain the order from a court, even though in without notice proceedings, (ii) the fact that this had to be gone through in each Member State in which enforcement was sought, (iii) the fact that the substantial arguments against recognition and enforcement could only arise for examination at the appeal stage, and (iv) the observation that the proportion of orders which were actually appealed against was a very small one, it was hard to deny that the procedure could be streamlined without any serious loss of legal protection.

The enforcement of a judgment to which Regulation 1215/2012 applies begins in the original court with the issue of the certificate for which Article 53 provides. The principal function which this serves is to confirm that the judgment was given in civil or commercial proceedings and is enforceable under the law of the State which handed it down, to confirm the time and fact of service having been made onthe defendant, and to set out in appropriate detail the computation of sums ordered to be paid or the nature of any non-pecuniary order. In other words, the certificate provided for in Annex I of the Regulation covers pretty much all the ground which would otherwise have been regulated by national procedural laws; but it does it once and for all Member States in which enforcement may be sought.

The documents are then provided to the ‘competent enforcement authority’ in the Member State in which its enforcement is to take place.^[3] The documentation which must be furnished is prescribed by the Regulation. The certificate and (if he does not already have it) the judgment must be served on the person against whom the judgment was given prior to the first enforcement measure, and that person may demand a translation into a language which he understands if he does not have a domicile in the Member State of origin. Though this procedure does require a little paperwork, and an application of an administrative nature, it does not involve application to, or orders made by, a court.

Novel as this may appear, the procedure put in place by Regulation 1215/2012 was not so very new. The information which is required before a judgment may be enforced has not really changed; it is simply a matter of whether it is produced by the claimant from his own endeavour and placed before the receiving court, or issued by the original court and provided to the receiving authority. From this point of view, and from others, it represents a perfectly sensible development of the law. Even if there are some courts in parts of the European Union in whose judicial capability one would hesitate to place unwavering trust, there are also some rather ramshackle places from which judgments may be brought to England for registration under the Administration of Justice Act 1920. There was no cause for alarm.

• [1] Regulation 1215/2012, Art. 72. 2 Regulation 1215/2012, Art. 45(l)(e)(i). 3 Regulation 1215/2012, Art. 45(1). 4 Regulation 44/2001, Art. 34(1)—(4), is reproduced in Regulation 1215/2012 as Art. 45(l)(a)-(d); Regulation 44/2001, Art. 35(1) is reproduced in Regulation 1215/2012 as Art. 45(l)(e); Regulation 44/2001, Art. 35(2), (3) is reproduced in Regulation 1215/2012 as Art. 45(2), (3). 5 Regulation 1215/2012, Art. 37(1).
• [2] Regulation 1215/2012, Art. 39; see also Recital (26). 2 The form of the certificate is in Annex I. 3 It may not have been necessary for the court to decide this question when taking jurisdiction, but it is essential that it do so when issuing the certificate. To that end it may at this stage refer questions to the European Court: C-579/17 BUAK v Gradbenistvo Korana doo EU:C:2019:162, [2019] ILPr 301. 4 Care may be needed to decide which order is the enforceable one if the foreign proceedings have led to appeals and to (various) orders made on the appeal: see Percival v Motu Novu ¿LC[2019] EWHC 1391 (QB).
• [3] In England, this appears to be to a Master of the Queen's Bench Division: CPR 74 PD74A r. 4.1. But it is not an application for registration. 2 Regulation 1215/2012, Art. 42. CPR r. 74.4A simply provides that the documents required by Art. 42 must be provided. 3 Regulation 1215/2012, Art. 43. 4 Regulation 1215/2012, Arts 46 51. 5 Regulation 1215/2012, Art. 45(4). 6 CPRr. 74.7A. 7 According to CPR r. 74.7A(l)(b), to the court in which the judgment is being enforced. 8 Regulation 1215/2012, Art. 46(1).