Free movement of judgements in the EU

Written on 3 Mar 2015

In January, Regulation 1215/2012, of the European Parliament and the Council came into force, which permits the recognition and enforcement of judgements in civil and commercial matters throughout the EU.

The conquest of the referred to ‘fifth freedom in Europe’ is a reality since the 10 January 2015. With the coming into force of Regulation 1215/2012, of the European Parliament and the Council, of 12 December 2012 (hereinafter, the ‘Regulation 1215/2012’), any judgement, public document with executive force and or judicial transaction in which any public authority of a member State has intervened, will be granted immediate effectiveness in the remaining States composing the European Union.

In this sense, Regulation 1215/2012 substitutes the old Regulation 44/2001 when referring to the recognition and enforcement of judgements. In all, the most important change is the elimination of the recognition and exequatur, so that any judgement in a member State of the European Union shall be automatically recognised and enforced as if it were passed in the same member State.

Although Regulation 1215/2012 will be applied to judgements that deal with civil and commercial matters, independently of the nature of the jurisdictional body, insolvency, social security and arbitration, among others, will be excluded from its scope of application. Subsequently, the annulment and/or recognition of arbitral awards will continue to be ruled by the New York Convention of 10 June 1958. However, Regulation 1215/2012 leaves the question open regarding its applicability in cautionary measures in support of arbitral processes. In spite of this, everything seems to indicate that, although they have not been specifically excluded, these cautionary measures are within its scope, just as they have been until now.

In addition, it is important to point out that the new Regulation 1215/2012 maintains the reasons for opposition to recognition and enforcement of judgements as foreseen in the previous Regulation 44/2001. To this effect, article 45 of the new Regulation 1215/2012 provides that manifest opposition with the State’s international law enforcement, forced default, the impossibility to reconcile with other previous judgements, and in the case of conflict of the judgement with the provisions in subject matters such as insurance, consumer contracts, employment or subject matters exclusively regulated in Regulation 1215/2012 itself, as reasons why the competent authorities of the State in question may oppose at the time of it becoming effective.

In conclusion, the legislator, always observing the defendant’s right to appeal, has foreseen that it will no longer be required to institute proceedings for a declaration of enforceability to recognise and/or enforce a judgement in another member State, therefore it is expected that businesses and/or consumers will save both in time and economic resources.