European Enforcement of Judgments

Transcription

1 European Enforcement of Judgments ERA Conference 23 January 2013 Liselot Samyn 1 Topics 1. European Exequatur 2. European Enforcement Order 1

2 2 European Exequatur 1. Definition 2. Legal sources 3. Evolution 3 1. Definition The effects of foreign judgments (or acts) in your home country or vice versa Varying degrees of effect: - Foreign judgment as fact - Probative value of a foreign judgment Internal probative value External probative value 2

3 Definition (2) Varying degrees of effect (2): - Recognition of a foreign judgment A party wants to rely on the situation as determined in the foreign judgment - Ex: marriage after divorce A party wants to rely on the binding force of the foreign judgment to avoid a second trail on the same matter (exception of res judicata) 5 1. Definition (3) Varying degrees of effect (3): - Enforcement of a foreign judgment A party wants to secure compliance with the foreign judgment - Enforcement on a person - Enforcement on a good - Exequatur OR the declaration of enforceability OR the procedure to obtain the declaration of enforceability

4 Legal sources General overview: - EU-Regulations take priority over international or national rules - Exception: International Treaties in relation to particular matters take priority over EU- Regulations (principle of lex specialis) - National PIL as a last resort 7 2. Legal sources (2) Relevant European rules: - Insolvency-Regulation (n 1346/2000) - Brussels I-Regulation (n 44/2001) Predecessor: Brussels Convention 1968 Successor: Brussels Ibis-Regulation (n 1215/2012) - EEO-Regulation (n 805/2004) - Maintenance-Regulation (n 4/2009) - Succession-Regulation (n 650/2012)

5 Legal sources (3) Odd men out: - Payment Order-Regulation (n 1896/2006) - Small claims-regulation (n 861/2007) - European Account Preservation Order (COM(2011) 445 final) 3. Evolution 3 levels of exequatur procedures - 3 rd level: full exequatur procedure - 2 nd level: softened exequatur procedure - 1 st level: abolition of exequatur procedure 9

6 10 3. Evolution (2) 3 rd level: full exequatur procedure - Ancient way no longer known in EU except: non-european judgments - Marked by suspicion of the foreign judgment and a full review as to its substance 3. Evolution (3) 11 2 nd level: softened exequatur procedure Brussels I-Regulation - No legalisation or other similar formality required (Art. 56 Brussels I) - No security, bond or deposit demanded from the claimant (Art. 51 Brussels I) - De plano recognition» No procedure required»! grounds for refusal (Art Brussels I) 6

7 Evolution (4) - Enforcement procedure Only a formal check = no review as to the substance! Declaration of enforceability» Unilateral procedure» Enforceability in MS of origin (Art. 38 Brussels I)» Application of enforceability (Art and Brussels I) Appeal? (Art Brussels I) Particular rules (Art Brussels I) 3. Evolution (5) Insolvency-Regulation Between Brussels I-Regulation and Brussels Convention Brussels IIbis-Regulation A softened procedure combined with an abolition of exequatur for certain decisions Succession-Regulation Similar to the Brussels I-Regulation 13

8 14 3. Evolution (6) 1 st level: abolition of exequatur procedure Only for specific matters - EEO-Regulation - Brussels IIbis-Regulation - Payment Order-Regulation - Small Claims-Regulation 15 European Enforcement Order Regulation (EC) no 805/2004 of the European Parliament and of the Council of 21 april 2004 creating a European Enforcement Order for uncontested claims (OJ , L 143, 15) 8

9 16 European Enforcement Order 1. A European Judicial Passport 2. Scope 3. Procedure 4. Effects A European Judicial Passport Goal: - Abolishment of exequatur Art. 1 and 5 EEO No intermediate proceedings needed in the Member State of enforcement prior to recognition and enforcement True (r)evolution! - Free circulation of judgments, court settlements and authentic instruments Cross-border? Not a uniform procedure 9

10 1. A European Judicial Passport (2) 18 Implementation - Double choice Choice for the claimant Choice for the Member States Advantages - A faster, more effective and cheaper enforcement Disadvantages? 2. Scope 19 Temporal scope - Art. 26 EEO This Regulation shall apply only to judgments given, to court settlements approved or concluded and to documents formally drawn up or registered as authentic instruments after the entry into force of this Regulation. - Entry into force: Applicable: Spatial scope - All Member States Except Denmark 10

11 Scope (2) Material scope - General scope (art. 2 EEO) Civil and commercial matters Excluded matters (= Brussel I) - Particular scope Uncontested claims - Claim: art Uncontested: art Scope (3) Uncontested claims: - Active uncontested claims Court settlements (art. 3.1.a) EEO) Authentic instruments (art. 3.1.d) EEO) - Passive uncontested claims Debtor never objected to it [ ] in the course of the proceedings (Art. 3.1.b) EEO) Debtor has not appeared or been represented [ ] after having initially objected [ ] provided that such conduct amounts to a tacit admission of the claim [ ] under the law of the Member States of origin (Art. 3.1.d) EEO)

12 Procedure Claimant asks a certification as EEO - When? - Where? - How? The court of origin certifies if: - Requirements are met (art. 6 EEO) Minimum standards - Only these requirements must be met! Procedure (2) MINIMUM STANDARDS - Choice of Member State to implement - Observance of the rights of the defence in the court proceedings before certification - Only when art. 3.1.b) or c) EEO applies (art. 12) - 4 different minimum standards

13 Procedure (3) 1. Service on the debtor - Art. 13 EEO: document instituting the proceedings or equivalent document with proof of receipt - Art. 14 EEO: idem without proof of receipt - Art. 15 EEO: service on debtor s representatives - Consequences for national law? 3. Procedure (4) 2. Due information of the debtor about the claim - Art. 16 EEO: document instituting the proceedings or equivalent document specific data - Art. 17 EEO: idem procedural steps necessary to contest the claim 25 - Consequences for national law?

14 Procedure (5) 3. Cure of non-compliance (art. 18 EEO) - Focus on cure through judgment Service (art. 13 and 14 EEO) Full review and information (art. 16 and 17 EEO) Debtor failed to challenge the judgment - Focus on conduct of the debtor Service (art. 13 and 14 EEO) - Consequences for national law? Procedure (6) 4. Review in exceptional cases (art. 19 EEO) - New legal remedy? - Conditions: Service by art. 14 EEO Service was not effected in sufficient time OR Force majeure or extraordinary circumstances without any fault on debtor s part IF Debtor acts promptly - Consequences for national law?

15 28 3. Procedure (7) Certification as EEO - Standard forms (art. 9 EEO) - Partial EEO possible (art. 8 EEO) Effects No exequatur procedure; effect only within the limits of the enforceability (art. 11 EEO) Actual execution? (art. 20 EEO) BUT: - Refusal of enforcement (art. 21 EEO) - Agreements with third countries (art. 22 EEO) - Stay or limitation of enforcement (art. 23 EEO) 15

16 Effects (2) Rectification or withdrawal (art. 10 EEO) - Rectification = material error OR - Withdrawal = clearly wrongly granted - National law? 31 Any questions?