Critical analysis of the objectives of the Brussels I (Recast) Regulation

As it was stated in the press release[1] following the adoption of the Brussels I Regulation (recast)[2] in 2012, the goal of the recast regulation is to facilitate the movement of judgements in civil and commercial matters. Here, I would like to discuss how the recast regulation differs from its predecessor, Council Regulation 44/2001[3] with particular attention paid to the key changes that have been made to the regulation and assessing if the objectives set out by those changes have been reached.

Council Regulation 44/2001, known also as ‘Brussels I Regulation’, set out an objective in its preamble[4] as facilitating the free movement of judgements to assure the development of the Community by providing legal support for the functioning of the Community. Since its inception, the 2001 Regulation has provided the foundation of the European judicial cooperation and established that it is necessary for a legal instrument of the Community to govern the international recognition and enforcement of judgements.[5] The Regulation has served well in providing clarity on issues that concern judicial matters across Member States, for example which Member State shall have jurisdiction to settle a dispute and how that judgement shall be recognised and enforced in other Member States. The Regulation has also served to provide citizens and businesses legal certainty from the rules that have been laid down by the EU legal instruments and settled European case law, eliminating the need for parallel proceedings to occur.[6]

 

Although the Brussels I Regulation has been regarded as a success in the area of EU international law, the shortcomings of the 2001 legislation have been noticed on numerous occasions[7], thereby upon its review, as required by article 73[8] of the 2001 Regulation, it has been noted that changes were vital to the 2001 Regulation. As reported by the EU Parliament, amendments were required to modernise the Regulation, and specifically the changes would need to address the issues of amending the rules in relation to jurisdictional agreements, lis pendens proceedings, enhancing the arbitration exclusion, providing new rules in relation to third state matters and defendants and the removal of exequatur.

 

One of the main concerns observed in the Brussels I Regulation was presented in regards to the jurisdictional agreements, or choice-of-court agreements, which stem from the provision in the 2001 Regulation.[9] The 2001 Regulation, which has expanded the Brussels regime,[10] has incorporated within the legislation provisions regarding the lis pendens doctrine,[11] which involves specific rules on which court shall have jurisdiction in cases “involving the same cause of action and between the same parties”.[12] This rule provides that if two courts are seized in different jurisdictions, the first court to establish jurisdiction shall advance with the proceedings. This doctrine was included with the intention of eliminating parallel proceedings and thereby establishing legal certainty and consistency in judgements. The rule was first applied under the 1968 Brussels Convention[13] in the Erich Gasser[14] case.

[1]Press release, “Recast of the Brussels I regulation: towards easier and faster circulation of judgments in civil and commercial matters within the EU”, Brussels, 6 December 2012, 16599/12, PRESSE 483

[2]Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)

[3]Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, http://www.abogadosaccidenteskp.com

[4]Ibid. Recital (1) “The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. In order to establish progressively such an area, the Community should adopt, amongst other things, the measures relating to judicial cooperation in civil matters, which are necessary for the sound operation of the internal market.”

[5]Ibid. Recital (6) “In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable.”

[6] Report [29 June 2010] on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

(2009/2140(INI)) < http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2010-0219+0+DOC+XML+V0//EN#_part1_def6> Accessed: 1 March 2017

[7]Following the European Court of Justice decisions in numerous cases [for example, – Case C-394/07 Gambazzi v. DaimlerChrysler Canada [2009] ECR I-2563, Case C-185/07 Gasser GmbH v. MISAT Srl [2003] ECR I-14693, Case C-281/02 Owusu v. Jackson [2005] ECR I-1383] it was apparent that the need to make amendments to the 2001 Regulation were required to modernise and make easier the circulation of judgements within the European Union.

[8]Council Regulation (EC) No 44/2001 Article 73 provides that a report must be presented on the application of the Regulation.

[9]Council regulation 44/2001 Article 23

[10]The Brussels regime was initially established by the1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [OJ L 299, 31.12.1972] regulating the legislative framework of litigation within the European Community.

[11]Council regulation 44/2001 Article 27

[12]Council regulation 44/2001 Article 27 (1)

[13]1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ L 299, 31.12.1972

[14]Case C-116/02 Erich Gasser GmbH v. MISAT Srl, European Court of Justice [2003]

The Drawbacks

One can argue that this allows a less expensive, faster and less complicated circulation of judgements within the EU. However, this proposal was met with criticism by academics, in particular Beaumount[1] who argues that abolishing this procedure would “jeopardize the protection of human rights.”[2] This was illustrated in the case of Krombach,[3] where a German doctor was convicted with manslaughter of a French girl in Germany.[4] The doctor then challenged the decision and argued there was a breach of his human rights as he was not given a fair trial.[5] It was held that there a breach of Article 6[6] and the conviction was dropped. This judgement illustrates an important safeguard for the courts to carefully consider the creditors rights and the debtor’s human rights. Therefore, the total abolishment of the exequatur procedure can be argued to hinder the free movement and enforcement of judgements.

Overall, the abolition of exequatur has simplified the recognition and enforcement of member state judgments in other member states. The amendment should be welcomed as it streamlines a once long and difficult process.

1] Paul Beaumont & Emma Johnston, ‘Can Exequatur be Abolished in Brussels I Whilst Retaining a Notary public London’ (2010) Journal of Private International Law 249

[2] ibid

Brussels I Review – The Abolition of Exequatur?

Continue reading “The Drawbacks”

A more streamlined process

The procedure resulted in unnecessary high costs for both the judiciary and citizens.[1] Considering that the creditor would have to spend time and money on translations, court fees, legal counselling, expenses to serve the declaration and enforceability and furthermore, it brought no additional value for the administration of justice.[2] One can argue that the free circulation of judgements harbours an the objective of private international law, protecting a judgement obtained in a foreign states legal system. The Commission stated these concerns in 2010,[3] and wanted to clear this hurdle. It was difficult to justify making individuals and organisations undergo these expensive formalities and lengthy procedures to assert their rights abroad within the internal EU market without frontiers.[4]

The recast now introduces a more streamlined process[5] and fits in with the Commissions objective to cut unnecessary red tape in line with the principle of mutual recognition.[6] Article 36 of the Recast[7] mirrors Article 33 of the previous Regulation.[8] In the previous Regulation, a judgement creditor only needed to apply to the member state court where he wished to enforce the judgement as a preliminary step,[9] however, this is no longer the case under the Recast. The new Regulation has improved this procedure by eliminating the need for the first instance procedure and maintaining the remedy without any loss. As Schramm [10] argues, there is no reason to justify keeping the exequatur procedure as its purpose is achieved by other means.[11] The new rule stipulates that a judgement which is concluded in one member state shall be carried over in other member states within the EU without the declaration of enforceability with the exception of two cases.[12]

[1] In an ordinary case the costs for an exequatur procedure ranges from 1.100 to 4.000 Euros and can up to 4 months.

[2] Peter Arnt Neilsen, ‘The New Brussels I Regulation’ (2013) 50 CML Rev 503

[3] European Commission, “Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters” COM (2010) 748 final, 3–4.

[4] Paul Beaumont & Emma Johnston, ‘Can Exequatur be Abolished in Brussels I Whilst Retaining a Public Policy Defence? (2010) Journal of Private International Law 249 (Abogados de accidentes)

[5] Peter Arnt Neilsen, ‘The New Brussels I Regulation’ (2013) 50 CML Rev 503

[6] random article

[7] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012.

[8] A member states judgement shall be recognised without the requirement of special procedure( add real citation)

[9] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012., Article 38,39,40

[10] ibid

[11] ibid

[12] Defamation and collective redress cases

The abolition of exequatur

The abolition of exequatur was a key Commission goal of the reform process, as concern was raised on a political level that the mechanism in the Brussels Regulation for the recognition and enforcement of member state judgments in other member states was cumbersome and impeded the free movement of judgments.[1] This amendment was based on mutual trust and free movement of judgements within the EU.[2] This can further be broken down to economic and political reasoning.[3] Economically, it was concluded that the abolition would cut costs and prevent delays in the exequatur procedure. Not only that, but it would encourage private actors to make use of the internal market.[4] In regards to the political stand point, it was emphasised that the exequatur procedure had negative effects on the free circulation of judgements.[5]

Under the previous Regulation,[6] if an individual sought enforcement of an EU judgement in a different member state, they had to apply for a declaration of enforceability[7], which is known as the ‘exequatur procedure.’ The court would then allow ex parte without notifying the debtor and without reviewing the grounds for enforcement and recognition. The debtor would be able to appeal against the exequatur under those same grounds. If and when the appeal is dismissed, the creditor can proceed to enforcement measures however, the creditor is subject to a limited amount of protective measures.[8] One can argue that this procedure is exclusive as the creditor has no ground to re-litigate the dispute in another court within the EU. The applicant must collect all relevant documentation[9] and prepare a potential translation of the judgement and certificate.[10]

[1] Peter Schlosser, ‘The Abolition of Exequatur Proceedings – Including Public Policy Review?’ (2010) Practice of international private and procedural law 101

[2] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012,

Recitals 6, 26 and 27

[3] Laurens Je Timmer, ‘Abolition of exequatur under the Brussels I Regulation: Ill-conceived and premature?’  (2013) journal of private international law 129

[4] ibid

[5] The case similar to cell phone repair Austin Texas

[6] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

[7] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 201, Article 38(1)

[8] Dorothee Schramm, ‘Enforcement and the Abolition of exequatur under the 2012 Brussels I Regulation’ (2014) Journal of Private International Law 143

[9] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 53

[10] ibid, Article 54

A commercial claims value

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A commercial claims value is measured is only measured whether it can be enforced or not. A courts judgement for the judgement-creditor will decrease in its value if the decision is met with difficulty and delays. Against this backdrop, it is clear that commercial claims in cross-border cases can significantly impact businesses who conduct their business worldwide.[1] Therefore, within the EU there have been proposals for certain improvements with the revised Regulation.[2] The new procedure has now completely abolished the requirement of exequatur. This amendment has been long debated since the 1994[3] and as a result, claims up to €2000, claims in regards to family maintenance and uncontested claims are no longer needed. This was highlighted in the Abogados de accidentes de carro case.[4] This introduced an important change as with the abolition of exequatur, the declaring procedure in order to make a judgement enforceable in another Member State has been withdrawn.[5] Therefore, recognition is now automatic.

[1] Dorothee Schramm, ‘Enforcement and the Abolition of exequatur under the 2012 Brussels I Regulation’ (2014) Journal of Private International Law 143

[2] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012.

[3] Tampere European Council, Presidency Conclusions, 15 and 16 October 1999 <http://www.europarl.europa.eu/summits/tam_en.htm> accessed 28/3/2017

[4] Dorothee Schramm, ‘Enforcement and the Abolition of exequatur under the 2012 Brussels I Regulation’ (2014) Journal of Private International Law 143

[5] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1, 20 December 2012, Article 36, “A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.”