Remedies concerning Enforcement of Foreign Judgements according to Brussels I Recast

Brussels I Recast (Regulation No 1215/2012 on the jurisdiction and the recognition and enforcement of judgements in civil and commercial matters – BIA), which has replaced Brussels I Regulation (BIR) is one step closer towards the simplification and expedition of cross-border enforcement of debts. However, some existing issues remain unsolved some new ones have already been identified. With the abolishment of the exequatur, the issue of remedies in both the Member State of origin and the Member State of enforcement is gaining new importance. Recourses in the state of origin have to be researched from the perspective of how they actually serve the foreign debtor to protect his/her rights in order to minimise the need to challenge the foreign judgment in the state of enforcement. Specific topics should be devoted to the provisional measures or to the speedy intervention to enable timely protection of rights. The success of the BIA is significantly dependant on the implementation into national systems, which significantly differ among each other. The procedure for refusal of enforcement is to be governed by the law of the Member State addressed as long as it is not covered by BIA. For example, deadlines for appealing will be decided by national law. BIA does not clarify how to proceed to such adaptation, therefore opening relevant questions that will also be addressed in the project. The comparative analysis will also include the reference to Regulation No. 655/2014 establishing European Account Preservation Order Procedure, as no such corresponding provisions exist in BIA. The preamble insinuates that the grounds against recognition and enforcement of foreign judgement are supposed to be submitted and decided mostly as preliminary questions, together with other objections in enforcement procedure. However, the separate procedure for recognition or non-recognition of foreign title is also available under choice of the parties. Less demanding and costly effective “incidenter” proceedings within enforcement procedure will, of course, be easier to set forth in systems with court enforcement procedure than in the states with autonomous private enforcement agents distant to the court. Member States have to notify the European Commission about the way and the authority competent to decide on the motion to refuse the recognition or to recognise the foreign title in separate procedure. The adequate type of procedure is thus an open issue. However, the advantage of BIA is that a new separate procedure will not suspend the enforcement; the question remains what other remedies can Member States introduce to postpone the enforcement. BIA stipulates grounds for refusal of foreign title, which have to be functionally analysed with regard of their relevance for future unification activities. A specific problem is the violation of public policy of the enforcement state being divided into procedural and substantive “ordre public”, but the debtors are rarely successful on these grounds. For that reason, there have been suggestions to leave public policy out of BIR, but it remained as an “emergency break”. The project will analyse the application of substantive public policy and its suggested replacement with some other measures. Research on refusal grounds will be followed by comparison of the creditor’s chance to opt for enforcement upon EU Regulations 805/2004, 1896/2006, 861/2007. It will be conducted through tight cooperation among experts from both theory and practice; we will encourage participation from scholars, judiciary, advocates, notaries, businesses, and – very important – state authorities, ministries and legislators. A functional comparative study on national law shall be performed.

Project partners

BENEFICIARIES

University of Maribor, Faculty of Law, Slovenia
University of Rijeka, Faculty of Law, Croatia
Portucalense University, Portugal
Masaryk University, Faculty of Law, the Czech Republic
Leibniz University of Hannover, Germany
University of Graz, Austria
University of Maastricht, the Netherlands
Mykolas Romeris University, Lithuania
Institute for Comparative Law at the Faculty of Law in Ljubljana, Slovenia
Tallinn University of Technology, Estonia
Law firm Sladič-Zemljak, Slovenia
CEPRIS, Slovenia
Chamber of Notaries of Slovenia

ASSOCIATE PARTNERS

Odvetniška zbornica Slovenije
The Supreme Court of Lithuania
The Court of Appeal of Lithuania
Faculty of Law "Iustinianus Primus", "Ss.Cyril and Methodius" University, Macedonia
Pravosudna akademija, Croatia
E&A Law, the UK

Participating experts

Prof. Dr. Vesna Rijavec (University of Maribor, Faculty of Law)
Prof. Dr. Tomaž Keresteš (University of Maribor, Faculty of Law)
Dr. Tjaša Ivanc (University of Maribor, Faculty of Law)
Prof. Dr. Martina Repas (University of Maribor, Faculty of Law)
Prof. Dr. Eduard Kunštek (University of Rijeka, Faculty of Law)
Prof. Dr. Ivana Kunda (University of Rijeka, Faculty of Law)
Prof. Dr. José Caramelo Gomes (Portucalense University)
Prof. Dr. Jiří Valdhans (Masaryk University, Faculty of Law)
Prof. Dr. David Sehnalek (Masaryk University, Faculty of Law)
Prof. Dr. Christian Wolf (Leibniz University of Hannover)
Prof. Dr. Bettina Nunner-Krautgasser (University of Graz)
Dr. Philipp Anzenberger (University of Graz)
Prof. Dr. Remco van Rhee (University of Maastricht)
Prof. Dr. Darius Bolzanas (Mykolas Romeris University)
Prof. Dr. Aleš Galič (IPP Ljubljana)
Prof. Dr. Lojze Ude (IPP Ljubljana)
Prof. Dr. Matija Damjan (IPP Ljubljana)
Prof. Dr. Jerca Kramberger Škerl (IPP Ljubljana)
Margus Poola (Tallinn University of Technology)
Dr. Jorg Sladič (Law firm Sladič-Zemljak)
Urška Kežmah (CEPRIS)
Boštjan Kežmah (CEPRIS)
Prof. Dr. Tatjana Zoroska (Faculty of Law "Iustinianus Primus", "Ss.Cyril and Methodius" University)
Ana Stanič (E&A Law)
Sašo Šanca (Chamber of Notaries of Slovenia)
Roman Završek (Odvetniška zbornica Slovenije)             
Nella Popović (Pravosudna akademija)

Timeline:

1 February 2016: beginning of project
1-3 February 2016: Expert meeting in Graz
30 April 2016: Distribution of questionnaires
20-21 May 2016: Conference in Portorož
30 April - 30 September 2016: Draft national reports
30 September 2016: Deadline for draft national reports
1-2 February 2017: Conference with national reporters in Maribor
28 February 2017 – 30 April 2017: Clarifications of national reports
30 April 2017: Final deadline for national reports
31 May 2017 - 31 January 2018 Final Monograph
1 February 2018 End of project

JUST/2014/JCOO/AG/CIVI/7749
Funded by Justice Programme of the European Union