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European Business Law

Pursuant to Article 46 of Regulation No 1215/2012, enforcement of the decision in the Member State addressed may be contested by the person against whom enforcement is sought. Article 45 allows any interested party to apply for the refusal of recognition of a decision. The grounds for refusal of recognition and/or enforcement are set out in Article 45 of the regulation. The application  for refusa …

Remedies

Pursuant to Article 46 of Regulation No 1215/2012, enforcement of the decision in the Member State addressed may be contested by the person against whom enforcement is sought. Article 45 allows any interested party to apply for the refusal of recognition of a decision. The grounds for refusal of recognition and/or enforcement are set out in Article 45 of the regulation. The application  for refusal is brought before the court which the Member State concerned has communicated to the Commission as being the competent court  . Outside  the binding requirements covered by Regulation No 1215/2012, the procedure for refusal of enforcement is governed by the law of the Member State addressed (Art. 47). The court must decide on the application for refusal of enforcement without delay (Art. 48). The decision on the application for refusal of enforcement may be appealed against by either party, which must be lodged with the court which the Member State concerned has communicated to the Commission as being the competent court (Art. 49). The decision given on the appeal may if necessary be contested by an appeal (Art. 50) .

The procedure remains quite similar to the one in place under the Brussels I Regulation. Under Article 43 of Regulation No 44/2001, an appeal could be lodged against the decision on the application for a declaration of enforceability. Phase II of the enforcement procedure, involving proceedings inter partes , was thus initiated. The decision on the application for a declaration of enforceability could only be appealed by the party against which enforcement had been granted or to whom it had been refused (Article 43(1)) . According to the Court of Justice interpreting those provisions, third parties could not appeal the judgment authorizing the enforcement of a judgment given in another Member State, or subsequently the judgment given on an appeal, even where the domestic law of the State in which enforcement was sought allowed third parties to do so . Thus, a creditor could not lodge an appeal in the name of his debtor against a decision on a request for a declaration of enforceability if he had not formally appeared as a party in the proceedings, even if his domestic law gave him the right to indirect claim . By contrast, interested third parties could lodge an appeal against execution measures as authorized by the law of the State in which execution had taken place . 

In application of Article 43(5) of Regulation No 44/2001 an appeal was lodged, through opposition, before the court mentioned in Annex III , within one month of service thereof, which could be increased to two months if the party against whom enforcement is sought was domiciled in a State other than that in which the declaration of enforceability was given. On the other hand, no time period was imposed on the applicant to whom enforcement (or recognition) had been refused. The time period for appeal against the enforcement decision was mandatory. The court in which enforcement was sought must therefore of its own motion dismiss as inadmissible an appeal lodged pursuant to national law against a foreign judgment for which an enforcement order had been issued, where to challenge the execution would have been tantamount to calling into question the enforcement order after the expiry of the time-limit . Furthermore, in cases of failure of, or defective, service of the judgment authorizing enforcement, the mere fact that the person against whom enforcement was sought was not aware of the decision did not suffice for the time-limit fixed to begin to run .

When the court seized of the appeal had ruled, its decision could be appealed only before the court referred to in Annex IV of Regulation No 44/2001, (Article 44 ). This right of appeal was conferred only against “judgments given on the appeal”, in the strict sense of the word , in order to avoid using that last remedy as delaying tactics . The words “judgment given on the appeal”, mentioned in Article 44, had to be  interpreted as referring to judgments which ruled on the well-founded nature of the appeal lodged against a judgment authorizing enforcement of a court judgment given in another Member State, to the exclusion of judgments relating to a stay of decision or the provision of security under Article 46, which “constitutes a subsidiary measure designed to settle the subsequent course of the procedure” . Thus, preliminary or interlocutory orders that the court seized of an appeal against the judgment which authorized enforcement could have given  or a judgment pursuant to which the court of a Member State, seized of an appeal against an enforcement judgment, refused a stay or lifted a stay previously ordered , could not be appealed as provided for in Article 44. Lastly, the court in which an appeal is lodged in application of Article 49 (previously 43 of Regulation No 44/2001) or 50 (previously 44) of Regulation No 1215/2012 may refuse or revoke enforcement only on one of the grounds specified in Article 45 (substantially the same as former Articles 34 and 35), such as the enforcement of that decision in the Member State of origin by means of a financial settlement .

According to Article 50, the decision given on the appeal may only be contested by an appeal where the courts with which any further appeal is to be lodged have been communicated by the Member State concerned to the Commission pursuant to point (c) of Article 75.

Case C-172/91 Sonntag v Waidmann [1993] ECR I-1963, LawLex200900000718JBJ: the 'judgment given on the appeal' cannot be appealed by the parties in Annex IV of the Regulation, even if the domestic law of the State in which enforcement is sought confers another right of appeal on interested third parties.

Case C-172/91 Sonntag v Waidmann [1993] ECR I-1963, LawLex200900000718JBJ.

Case C-183/90 Van Dalfsen and others v Van Loon and others [1991] ECR I-4743, LawLex200900000755JBJ.

Case 258/83 Schuhfabrik Brennero v Wendel GmbH [1984] ECR 3971, LawLex200900001783JBJ.

Case C-432/93 SISRO v Ampersand Software [1995] ECR I-2269, LawLex200900000801JBJ.

Case C-139/10 Prism Investments BV [2011] ECR I-9511, LawLex201200000125JBJ.

Case 198/85 Carron v Germany [1986] ECR 2437, LawLex200900001642JBJ: "[Brussels Regulation I] establishes an enforcement procedure common to all Member States. At the initial ex parte stage, that procedure enables the applicant seeking enforcement of a judgment in another Member State to obtain satisfaction swiftly. At the second stage, involving proceedings inter partes, it guarantees the rights of the party against whom enforcement is sought by setting up an appeal procedure."

Before, the Brussels Convention was dissociating in two separate articles the appeal lodged by the party against whom enforcement was sought (Article 36) and the appeal lodged by the applicant to whom enforcement had been refused (Article 40). 

See case C-167/08 Draka NK Cables and others [2009] ECR I-3477, LawLex200900002351JBJ.

Regarding the distinction between enforcement and execution, see, inter alia, Case 145/86 Hoffmann v Krieg [1988] ECR 645, LawLex200900001555JBJ. 

Case 145/86 Hoffmann v Krieg [1988] ECR 645, LawLex200900001555JBJ.

Case C-3/05 Verdoliva [2006] ECR I-1579, LawLex200900001443JBJ.

European Business Law

377. Remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

377. Remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise