Article 34 of the Brussels I Regulation (jurisdiction in civil and commercial matters) enables a court, by way of derogation from the principles and objectives of the Regulation, to refuse to recognize a judgment given by a court of another Member State. The whole starting point of the Regulation and its antecedents was to avoid much recourse to refusal of recognition. Free movement of judgments lies at the very core of the foundations of European private international law.
Little wonder then that the Regulation leaves limited freedom for Member States authorities (including courts) who are asked to recognise and enforce another State’s judgment.
In Case C-619/10 Trade Agency, proceedings were underway between Trade Agency Ltd (‘Trade Agency’) and Seramico Investments Ltd (‘Seramico’) concerning the recognition and enforcement in Latvia of a judgment in default delivered by the High Court of England and Wales. Saramico had filed suit against Trade Agency for payment of a sum just under 300.000 Sterling. Trade Agency entered no defence and the sum was awarded. Saremico then sought enforcement in Latvia. The Latvian court wondered whether Article 34(1)’s public policy exception, allowed it to deny ‘enforcement’ (what is meant is really ‘exequatur’) given that under the English system, an uncontested claim is summarily granted, without the judgment reviewing and confirming the legal merits of the case.
The UK had pointed out in the hearing at the Court of Justice that a judgment given in default of appearance, such as that given by the High Court in the main proceedings, cannot be obtained until, first, the applicant serves the claim form and the particulars of claim, containing a detailed description of the pleas in law and the material facts, to which the judgment itself impliedly refers, and, second, the defendant, although he has been informed of the legal proceedings instituted against him, does not appear or does not express his intention to submit a defence within the period prescribed.
The Court of Justice refused to disallow all scope for the Member State in which enforcement is sought, to refuse such enforcement in light of what seem to be serious procedural requirements under English law. However the court in which exequatur is sought, may only refuse after review of the individual merits of the case: it has to in other words review whether in the case at issue, the defendant knew of the applicant’s statement of claim and decided not to defend himself against it. It may not decide that the English system as such as contrary to public policy in the state of enforcement.
The exequatur procedure of the Brussels I Regulation will be overhauled in the current review. However it is exactly on issues of the rights of the defence, such as those raised in Trade Agency, that a number of Member States continue to insist that exequatur can never be entirely automatic, even among EU Member States.