New Regulation for the recognition and enforcement of court orders
On 10 January 2015, the European Parliament and Council’s (EU) Regulation 1215/2012 of 12 December 2012, relating to the jurisdiction, recognition, and enforcement of court orders in civil and commercial matters (hereafter: “the Regulation”) came into force. The Regulation marks a new landmark in the process of European integration in the field of Judicial Administration, governed principally by the goal of guaranteeing quick and simple recognition and enforcement of court orders issued in a Member State.
In the framework of the beginnings of a legal proceeding that raises connections with two or more Member States, the first question that arises is which state’s courts are capable of processing the legal procedure in question? This jurisdiction is generally determined according to the residence of the defendant of the dispute, except in certain cases where the goal of the litigant or the autonomy of the parties justifies another connection criterion. Thus, for example, in insurance contracts, consumer contracts, or work contracts, the Regulation seeks to defend the weaker party through competition rules that are more favourable to their interests.
In this respect, the Regulation establishes clear rules to reduce as much as possible the likelihood of beginning parallel proceedings and avoiding contradictory court orders being issued in different Member States.
Turning now to the scope of the enforcement of court orders issued in another Member State, the Regulation specifically establishes that any ruling issued by the court of a Member State must be treated as though it had been issued in the requisite Member State (the one whose courts will take charge of the enforcement), striking down any previous procedures (legalisation or exequatur), including if the resolution to be enforced was issued against a person who is not domiciled in a Member State.
In the event that a ruling contains a measure or a mandate that is not covered by the legal framework of the requisite Member State, the measure or mandate, including all rights therein, must be adapted as closely as possible to a measure or mandate that, within the legal framework of said Member State, has a similar effect and pursues a similar aim.
The implementation of the former signifies that, in order to call upon the enforcement of a court order issued in another Member State, in principle an authentic copy order will suffice, together with the certified type predetermined in the Regulation, whose process will correspond to the court that issued the ruling to be enforced.
In order to avoid obstacles in the enforcement of court orders that could, in practice, oppose the principle of mutual recognition, the Regulation establishes that when someone opposes the enforcement of a ruling issued in another Member State, they will only be able to do so according to the grounds for refusal explicitly listed in the Regulation. The opposition will not impede the completion of the enforcement, without prejudice to if the opposition is limited or establishes the formation of a guarantee.
Furthermore, it is worthy to mention that, in accordance with the Regulation, it is possible to apply to the courts of a Member State for provisional or protective measures under the law of the Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.
All of the above is nothing more than a brief summary of a European regulation that every litigation lawyer that operates on an international level must know for the sake of providing the best legal defence for your client’s interests.
Mariano Jiménez
