European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Regulation No 1215/2012 lays down the principle of the direct enforcement of judgments in the Member State addressed without the declaration of enforceability prior to enforcement . A judgment given in a Member State which is enforceable in the Member State addressed is enforced there under the same conditions as a judgment given in the Member State addressed (Art. 41). The party seeking the enfor …

Application for enforcement

Regulation No 1215/2012 lays down the principle of the direct enforcement of judgments in the Member State addressed without the declaration of enforceability prior to enforcement . A judgment given in a Member State which is enforceable in the Member State addressed is enforced there under the same conditions as a judgment given in the Member State addressed (Art. 41). The party seeking the enforcement of a judgment given in another Member State is not required to have a postal address or an authorized representative in the Member State addressed unless such a representative is mandatory irrespective of the nationality or the domicile of the parties (Art. 42) . The applicant must provide the competent enforcement authority with a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and the certificate issued, certifying that the judgment is enforceable and containing an extract of the judgment. Where enforcement of the judgment is sought in another Member State, the certificate must be served on the person against whom the enforcement is sought. 

Under Regulation No 44/2001 the parties could apply for the judgment of origin or the declaration of enforceability to be recognized on the mere application to the court having jurisdiction in the State in which enforcement was sought . In accordance with Article 39(1), the application was submitted to the court indicated in the list in Annex II of the regulation, except in case of incidental question of recognition . The court having territorial jurisdiction was that of the place of domicile of the defendant, i.e. the party against whom recognition or enforcement was sought, or that of the place of enforcement of the judgment (Regulation No 44/2001, Article 39(2)). The procedure for making the application was governed by the law of the Member State in which enforcement was sought (Article 40(1)). 

The applicant was required to give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the Member State in which enforcement was sought did not provide for the provision of such an address, the application appointed a representative ad litem (Article 40(2)). Providing an address for service was made according to terms defined in the law of the court in which enforcement was sought. If there is nothing in the law, the applicant must fulfill that formality no later than the time on which the judgment awarding enforcement was served . The failure to comply with the rules on the provision of an address for service was also governed by the law of the State in which enforcement was sought, provided that the aims of the regulation were respected, insofar as the sanction provided for could neither cast doubt on the validity of the enforcement order nor in any way prejudice the rights of the party against whom enforcement was sought . 

Regardless of whether the action sought recognition or enforcement, Articles 53 to 55 required the production of the same documents in annex: the applicant had to produce a copy of the judgment which satisfied the conditions necessary to establish its authenticity. The enforcement procedure further required that the judgment concerned be enforceable in the State of origin. The application therefore had to include a certificate formally establishing the enforceability of the judgment in the State of origin. The regulation referred to enforceability in formal terms and the circumstances in which such decisions could be executed in the State of origin were irrelevant . The purpose was not to allow a judgment, when enforced, rights not attached to it in the Member State of origin or effects that a similar judgment given directly in the Member State in which enforcement was sought would not have had . If the certificate was not produced, the court could specify a time for its production or accept an equivalent document or, if it considered that it had sufficient information before it, dispense with its production (Article 55(1)).

Regulation No 1215/2012, Art. 39: "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".

It results from the combined reading of Article 33(2) (on recognition) and Article 38 (on enforcement) that the procedure to be implemented before the court of the State in which enforcement is sought is the same as the principal action to be exercised for the purpose of obtaining recognition or enforcement. 

Article 33(3) awards jurisdiction to the court seized of the principal issue to hear the incidental question of recognition.

Case 198/85 Carron v Germany [1986] ECR 2437, LawLex200900001642JBJ. See, along the same lines, Cass. 1 civ., 18 April 1989, (not available in English): if there is nothing under French law regarding the time to furnish an address for service, that formality must be fulfilled no later than the time at which the judgment awarding enforcement is served.

Case 198/85 Carron v Germany [1986] ECR 2437, LawLex200900001642JBJ.

Case C-267/97 Coursier [1999] ECR I-2543, LawLex200700001893JBJ: the exception provided for in Chapter III of the regulation is in favor of foreign judgments which are enforceable in formal terms, regardless of the circumstance in which these judgments may actually be executed in the State of origin.

Case C-420/07 Apostolides [2009] ECR I-3571, LawLex200900001592JBJ: the fact that claimants might encounter difficulties in having judgments enforced cannot deprive them of their enforceability and does not prevent the courts of the Member State in which enforcement is sought from declaring such judgments enforceable.

European Business Law

376. Application for enforcement

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Les décisions de justice citées dans ce paragraphe :

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376. Application for enforcement

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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