European Union: Execution Of Foreign Judgments Under EU Law: An Overview Of Regulation 1215/2012

Last Updated: 12 June 2017
Article by Kyriacos Varnavas

The legal system of the Republic of Cyprus provides various routes for the enforcement of foreign judgments which have been issued abroad. The procedure to be followed depends on the origins of the foreign judgment. If a judgment is issued by a non- EU country, its enforceability in Cyprus will depend on the existence of a bilateral treaty between the country of origin and Cyprus, which will define the procedure to be followed by the judgment creditor. In the absence of a bilateral treaty, a judgment of that country can only be enforced in Cyprus through common law. In this case, the common-law principle of res judicata can be invoked (meaning that courts should not revisit an issue if another competent court has delivered a final decision on that same issue vis-à-vis the same parties). On the basis of res judicata, the judgment creditor should commence new proceedings by filing a writ of summons in Cyprus referring to the foreign judgment. However, commencing new proceedings can be time consuming and expensive for judgment debtors, since the merits of the case will have to be proven once again by presenting admissible evidence.

Conversely, in order to promote cost efficiency and expeditiousness in executing judgments across Europe, the Council of the European Union upholds the principle of mutual recognition. Although this principle might be quite unrealistic, as it assumes uniformity of judicial standards across the EU, it has nonetheless accelerated judicial cooperation between EU Member States. Mutual recognition is what inter alia justifies the operation of Regulation 1215/2012, which regulates the enforcement of European judgments within the EU, and has been introduced to repeal Regulation 44/2001. Despite its repeal, Regulation 44/2001 applies to judgments and to court settlements judicially approved before 10 January 2015. Therefore, Regulation 44/2001 will continue to apply for some years until the transition is completed.

Regulation 1215/2012 incorporates a rather broad definition of the term 'judgment', to ensure that judgments issued in the EU will fall within its scope. Specifically, Art.2 defines judgment as follows:

"any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court"

Regulation 1215/2012 explicitly refers to only a few exceptions which do not qualify as a judgment for its purposes, and provides limited grounds on which the enforceability of a judgment can be opposed. It should also be noted, that the Court at which enforcement is sought should take the judgment as such and must not revisit its merits. Interestingly, the definition of judgement includes orders, which means that freezing injunction orders and discovery orders (aka Norwhich Pharmacal orders) issued in Cyprus can be enforced through the Regulation in any EU Member State. Nevertheless, practically a discovery order may not have any effect if the Respondent is located in another EU Member State, as the consequences of being in contempt of court can be evaded if the Respondent does not enter Cypriot jurisdiction.

Although Regulation 1215/2012 carries out the same function as its predecessor, its purpose as envisaged by the Council of the European Union is to enhance the execution procedure through the abolition of exequatur. Specifically, under the old Regulation, judgment creditors have to apply ex-parte to the Court of the EU Member State in which enforcement is sought to obtain a declaration of enforceability of the foreign judgment before proceeding with execution. However, under Regulation 1215/2012 Art. 39, no such declaration is required. The judgment creditor simply requests a standard form judgment certificate from the court of origin which is filed along with a copy of the judgment at the Member State where execution is sought. Subsequently, the enforcement measures of the executing Member State become available to the judgment creditor, as if the judgment had been issued by that Member State.

Furthermore, under the old Regulation the party seeking to enforce the judgment has to satisfy the Court that all the conditions prescribed by the Regulation are fulfilled. In contrast, Regulation 1215/2012 creates a presumption that the conditions are indeed fulfilled, and the sole question for the Court is whether there are any grounds for refusing execution.

From another perspective, enforcing foreign judgments abroad necessitates instructing foreign lawyers in the Member State of execution, as counsels in the issuing Member State may lack expertise and authority to initiate enforcement measures in the executing State. Inevitably, this renders execution abroad more expensive. Therefore, it may be argued that mainly corporations rather than individuals will make use of the benefits of Regulation 1215/2012, as both considerable funds and contacts are required in the Member State of enforcement in order to locate and instruct lawyers there.

Concluding, the two Regulations have undoubtedly limited the scope for judgment debtors to evade their creditors by moving their assets around in the EU. Furthermore, as a result of the changes introduced by Regulation 1215/2012, the procedure appears to have been simplified in terms of documentary requirements, whilst there is direct access to the enforcement measures of EU Member States. Therefore, Regulation 1215/2012 can, thus far, be seen as a useful tool which has enhanced free movement of judgments across Europe.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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