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

Pursuant to Chapter IV of Regulation No 44/2001, authentic instruments and court settlements which may be subject to enforcement proceedings were subject to a similar but simpler mechanism than that provided for the enforcement of judgments where they fell within the scope of the regulation. Article 57(1) of the regulation provided that authentic instruments received and enforced in a Member State may, on application, be declared enforceable in another Member State at the end of a first stage and, during the second stage, the court with which an appeal was lodged could refuse or revoke a declaration of enforceability only if enforcement of the authentic instrument was manifestly contrary to public policy in the Member State addressed. In case of appeal, the control of the enforcement court consisted in checking whether those instruments were contrary to public policy in its State, whether they were actually enforceable in the State of origin, but also whether they were authentic according to the law of that State of origin. According to the Court of Justice, since the instruments covered by Article 57 of the regulation were enforced under exactly the same conditions as judgments, the authentic nature of such instruments had to be established beyond dispute so that the court in the State in which enforcement was sought was placed in a position to rely on their authenticity . Accordingly, an acknowledgment of indebtedness enforceable under the law of the State of origin whose authenticity has not been established by a public authority or other authority empowered for that purpose by that State does not constitute an authentic instrument within the meaning of Article 57 . On the other hand, according to the European legislator, “arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them” are authentic instruments (Article 57(2)) . 

According to Article 58 of Regulation No 44/2001, “a settlement which has been approved by a court in the course of proceedings and is enforceable in the Member State in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments”. The Court of Justice has not ruled on the interpretation of that provision but its case law regarding the public policy clause mentioned as part of the recognition or enforcement of court judgments may be transposed to the system of enforcement set in Chapter IV of the Regulation . 

On 21 April 2009, the Commission released a Green Paper on the Review of Regulation No 44/2001  in which it suggested to think about the free movement of authentic instruments and asked in particular whether, following the example of Regulations No 2201/2003 and No 4/2009, in family matters, which provide that the settlement of a dispute in an authentic instrument is automatically recognized in the other Member States, a “recognition” might be appropriate in all or some civil or commercial matters, taking into account the specific legal effects of authentic instruments". 

Under Regulation No 1215/2012, authentic instruments enforceable in the Member State of origin are now enforced in the other Member States under the same conditions as authentic instruments without any declaration of enforceability being required. Enforcement of the authentic instrument may be refused only if such enforcement is manifestly contrary to public policy in the Member State addressed . A court settlement which is enforceable in the Member State of origin is enforced in the other Member States under the same conditions as an authentic instrument .

Case C-260/97 Unibank [1999] ECR I-3715, LawLex200900001006JBJ.

Maintenance  obligations now no longer come within the scope of the Brussels I Regulation (since the entry into force of Regulation No 4/2009 of 18 December 2009), and Regulation No 1215/2012 has not kept the provision of Article 57(2).

Case C-414/92 Solo Kleinmotoren v Boch [1994] ECR I-2237, LawLex200900000757JBJ: resorting to the public order clause must be exceptional as part of the enforcement of court settlements (and authentic instruments), as in the recognition or enforcement of court decisions.

381. Simplified enforcement on application