1 Introduction

One of the cornerstones of European Union (hereinafter the EU) private international law, especially EU international procedural law, is mutual trust. Mutual trust in the law systems of the Member States of the the EU also forms a premise for the recognition and enforcement rules which were introduced in the EU. The 1968 Brussels Convention on Jurisdiction and EnforcementFootnote 1 already made the automatic recognition of judgments falling under the scope of this Convention possible. It had also introduced an easy system for the enforcement of judgments as well as a system of rules of international jurisdiction. Even though it had simplified the cross-border enforcement of judgments in civil and commercial matters, enforcement was still ‘checked at the entrance’ into the Member States. In the course of time, the system of recognition and enforcement became more simplified and was also made possible in the fields of law falling outside the material scope of this Convention.Footnote 2 One may wonder whether mutual trust really does exist or whether it is only a postulate, a kind of myth, introduced within the EU to create a basis for automatic recognition and for an easy cross-border enforcement of judgments rendered by the courts of the Member States. What does the principle of mutual trust really mean? Who does one trust and in what respects? There are no explanations and no answers to these questions. The legal basis for judicial cooperation in civil and criminal matters in the EU is laid down in Articles 81 and 82 Treaty on the Functioning of the European Union (TFEU) and, according to these provisions, is ‘based on the principle of mutual recognition’.Footnote 3 Despite the existence of this principle the EU started only very recently to monitor the existence of mutual trust in the EU.Footnote 4

It is not the goal of this article to provide a definition of mutual trust or to list the requirements for its existence. Nor does it provide any details as to between which participants of the internal market of the EU mutual trust exists as a cornerstone of cross-border recognition and enforcement.Footnote 5 Mutual trust is accepted as a common postulate introduced by the EU. This article focuses on the recognition and enforcement rules laid down in the instruments of the EU which are based on this postulate. In Sect. 2, a general overview of systems of recognition and enforcement in different Regulations in the field of European private international law is given.Footnote 6 The goal of this section is to make clear that even though mutual trust as a basic principle of the judicial cooperation in civil and criminal matters exists, there are different ways as to how it can be—or actually, how it was—introduced in secondary EU law. In Sect. 3, three Regulations concerning the recognition and enforcement of judgments in the EU are discussed. Firstly, attention is paid to the rules of recognition and enforcement under the 2012 Brussels I Regulation (Recast).Footnote 7 This Regulation became applicable on 10 January 2015 and simplifies the circulation of judgments in civil and commercial matters even more in comparison to its predecessors, the 2001 Brussels I RegulationFootnote 8 and the 1968 Brussels Convention. Secondly, the rules on recognition and enforcement under the Brussels IIbis Regulation are discussed.Footnote 9 This Regulation made possible the automatic recognition of judgments in certain family matters. As regards the enforcement of such judgments, this Regulation introduced different systems of enforcement depending on the subject matter of the judgment whose cross-border enforcement is sought. The third instrument on the recognition and enforcement of judgments to be discussed is the 2008 Maintenance Regulation.Footnote 10 This Regulation makes the automatic recognition of judgments relating to maintenance obligations possible. It introduced two different systems for the cross-border enforcement of such judgments in the EU, depending on whether a judgment is rendered in a Member State which is party to the 2007 Hague Protocol.Footnote 11 Finally, the similarities and differences in the above-mentioned instruments are pointed out. Also the general effects of recognition and enforcement in cross-border cases are discussed.

2 Recognition and Enforcement in EU Regulations

As regards the cross-border enforcement of judgments one could say that there are two concepts which can be applied between states.Footnote 12 The first one is cooperation where a judgment from one state can be recognized and enforced in another state after a formal check in the state of enforcement. Under this regime, a procedure is created with regard to how to obtain leave to enforce a judgment in the state of enforcement and how to oppose that leave in that state. The other form of cooperation between states in a case of the cross-border enforcement of judgments is by giving direct effect to judgments from one state in the state of enforcement as if it were a judgment rendered in the latter state. Looking at the different instruments on cross-border enforcement in the EU, one could say that, historically, the EU took a position somewhere in between.

2.1 Exequatur Proceedings in the Member State of Enforcement

Given the fact that the procedural and enforcement law systems of the Member States of the EU are not harmonized, the possibility of a cross-border enforcement of a judgment rendered by a court of a Member State in another Member State was dependent on the national law of the Member State of enforcement. In order to make the free circulation of judgments in the EU possible, the 1968 Brussels Convention was introduced. According to Article 26 of the Convention, a judgment rendered by a court of a Member State is to be automatically recognized in another Member State without any special procedure being required.Footnote 13 For the cross-border enforcement of a judgment intermediate proceedings in the Member State of enforcement are to be followed. At the request of an interested party, a judgment can be declared enforceable in the Member State of enforcement. These exequatur proceedings are so-called ex parte (inaudita parte) unilateral proceedings where the party against whom the enforcement is sought is not heard by the seized court. The court verifies—based on the request and on its own motion—whether the requirements for leave to enforce (exequatur) have been fulfilled. It also assesses whether the recognition and enforcement of the judgment may be refused because of the existence of one of the grounds for refusal mentioned in the Convention. However, the court is not allowed to review the jurisdiction of the court rendering the judgment, nor may it review the judgment as to its substance.

As will be discussed later on, the same system of recognition and enforcement also applies in general to judgments in matters of parental responsibilities under the Brussels IIbis Regulation. This Regulation makes the free circulation of certain judgments in family matters possible. However, it still requires a formal check of a foreign judgment prior to its enforcement in another Member State.

2.2 Simplified Exequatur Proceedings in the Member State of Enforcement

The second regime of recognition and enforcement is the regime introduced by the 2001 Brussels I Regulation. This regime is also based on the automatic recognition of judgments. As regards cross-border enforcement, a procedure to obtain an exequatur in the Member State of enforcement is to be followed. However, these proceedings, compared to the exequatur proceedings under the 1968 Brussels Convention, are more simplified. Enforcement is still only possible at the request of an interested party. The court seized is only allowed to carry out a formal ‘check’. It may not assess whether recognition is to be refused because of the existence of a ground for refusal. This may only be verified in a procedure against the leave for enforcement at the request of the party against whom the enforcement is sought. This party is to specify in its request what ground for refusal exists. The court seized may not assess, on its own motion, whether there is another ground for refusal within the meaning of the Regulation according to which the recognition of the judgment is to be refused.

This regime for the recognition and enforcement of judgments also applies under the 2012 Succession RegulationFootnote 14 and partially under the 2008 Maintenance Regulation.

2.3 No Exequatur Necessary in the Member State of Enforcement: Abolition of Exequatur in the Member State of Enforcement

As regards the decisions on access rights and decisions to return abducted children after an initial non-return order, the Brussels IIbis Regulation abolished the exequatur. This is also the case under the 2008 Maintenance Regulation and the 2012 Brussels I Regulation (Recast).Footnote 15 However, these Regulations differ as regards the possibilities to oppose the enforcement or the recognition. As under the Brussels IIbis Regulation in the aforementioned matters and also under the 2008 Maintenance Regulation the recognition cannot be opposed, under the 2012 Brussels I Regulation (Recast) any interested party may still oppose the recognition and enforcement of the judgment in the Member State of enforcement.Footnote 16

The exequatur has also been abolished under the European instruments introducing harmonized procedures in the national law of the Member States. This is the case under the Regulation on the European Payment OrderFootnote 17 and the Regulation on Small Claims.Footnote 18 Under these Regulations new procedures in the national law systems of the Member States are introduced. Because of the fact that these procedures are the same—or more or less should be—in all the Members States concerned,Footnote 19 there is no need for a ‘check’ in the case of cross-border enforcement.

A hybrid regime for the cross-border enforcement of judgments was introduced in the Regulation on the European Enforcement Order.Footnote 20 Even though this Regulation did not harmonize the national law of the Member States, it abolished the exequatur in the Member State of enforcement and introduced certification proceedings in the Member State of origin of the judgment.Footnote 21 However, as a kind of residue of the exequatur proceedings, the enforcement debtor can oppose the enforcement of a judgment falling under the scope of the regulation (but only) in the case of the irreconcilability of this judgment with another earlier judgment rendered in a Member State or in a third state.Footnote 22 It also makes it possible that enforcement proceedings are stayed if the certification in the Member State of origin is challenged.

2.4 Preliminary Observations

Given the above-mentioned brief overview of different regimes of recognition and enforcement in the EU, it is interesting to observe that the developments in the simplification of the cross-border enforcement of judgments in the EU are connected not only to the political will of the Member States, but they also depend, in a certain way, on the character of the instrument. As the 1968 Brussels Convention was based on Article 220 EC, the Member States were obliged to enter into negotiations to secure the simplification of formalities related to the cross-border enforcement of judgments for the benefit of their nationals.Footnote 23 Thus, the Member States were to simplify the national regimes of cross-border enforcement, but they still had the possibility to control the judgment rendered abroad. The 1968 Brussels Convention is just an international agreement between Member States which is ‘coloured’ by EU law. Under the legal grounds of the latest instruments on the cross-border enforcement of judgments (Article 67 paragraph 1 TFEU), such as the 2012 Brussels I Regulation (Recast), one of the goals of the EU is to create ‘an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States’. For this purpose, the EU is to facilitate, according to Article 67 paragraph 4 TFEU, ‘access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters’. Even though an area of freedom, security and justice would presuppose a full faith and credit clause, meaning that a judgment rendered in one Member State would have the same effect in all Member States and could be enforced throughout the whole area of the EU in the same way, Article 67 paragraph 4 TFEU only strengthens the cooperation principle. This principle needs to be elaborated in special instruments which are discussed in the next section of this article.

3 Mutual Trust Principle Under the 2012 Brussels I Regulation, the Brussels IIbis Regulation and the Maintenance Regulation

3.1 Brussels I Regulation (Recast)

3.1.1 Definition of a ‘Judgment’

Under the 2012 Brussels I Regulation (Recast) the free circulation of judgments applies not only to judgments rendered in main procedures (as to the substance of the matter) but also to judgments containing provisional or protective measures. According to Article 2(a), such a judgment only qualifies as a recognizable—and thus, enforceable—judgment under the Regulation if the judgment is served on the defendant prior to enforcement and if granted by a court of the Member State having jurisdiction as to the substance of the matter. Provisional or protective orders not fulfilling these requirements are excluded from the free circulation of judgments based on the Regulation.Footnote 24 The Regulation extends the benefits of the free circulation of judgments also to judgments awarded in ex parte (inaudita parte) unilateral proceedings.Footnote 25 The effect of a judgment on provisional and protective measures not falling under the definition of a judgment is limited to the territory of the Member State where it was rendered.Footnote 26

The Regulation only applies to a judgment based on the merits of the dispute. This does not include judgments which make judgments from a non-Member state enforceable. In these judgments, a court of a Member State does not decide on the dispute between the parties; it only makes the enforcement of such a judgment possible given the fact that the national requirements of that State have been met. Such a decision by a court of a Member State relies on the national rules of enforcement law and only has local effect (its effect is limited to the territory of the Member State).Footnote 27

3.1.2 Recognition

According to Article 36, a judgment delivered in a Member State will be recognized in the other Member States. No special proceedings are necessary in this respect. Article 36 does not provide any definition of the term ‘recognition’. However, according to the Jenard Report on the 1968 Brussels Convention, the recognition of a judgment rendered in one Member State must have the same effect in the other Member States.Footnote 28 As a consequence of this approach, first of all substantive effects are to be recognized. This means that a judgment recognises the status quo of the legal relationship between the parties. In addition to these effects also the procedural effects of a judgment, such as res judicata, are to be accepted. The res judicata of a judgment or a judgment itself can serve as evidence.

A problem may arise if in the Member State of origin, i.e. in the Member State where the judgment was rendered, effect is given to a judgment which is unknown in the Member State of recognition. Which law determines the effects of a foreign judgment? The Regulation, as well as its predecessors, is unclear in this respect. Based the Jenard Report, the European Court of Justice (ECJ) seems to accept that the law of the Member State where the judgment was rendered decides on the effects of the judgment. This means that the ECJ adopts the approach of the extension of effects (Wirkungserstreckung).Footnote 29 As under the 2001 Brussels I Regulation an exequatur was necessary for the enforcement of a judgment from a Member State court in another Member State, the free circulation of judgments was limited. A foreign judgment was not treated in the same way as a judgment of a national court. The approach of ‘Wirkungserstreckung’ under the 2012 Brussels I Regulation (Recast) is supported by Article 54.Footnote 30 This provision provides that if a judgment contains a measure which is unknown in the law of the Member State of recognition, the measure is to be adapted to a measure having equivalent effect to it and which pursues similar aims and interests.Footnote 31 Such an adaptation may not result in effects going beyond those provided in the Member State of origin. On the one hand, such effects are extended to the Member State of recognition while, on the other, this State could still have the possibility of a partial limitation of those effects if they are unknown. However, Article 54 precludes this approach by ordering that State to adapt measures which guarantee the intended purpose. An adaptation without extending the effects of the foreign judgment does not make any sense, however.Footnote 32 It is also unclear whether the effects of a judgment could be based on a European principle of recognition. In its De Wolf/Cox judgment the ECJ ruled that, based on the 1968 Brussels Convention, a judgment falling under the scope of this Convention has preclusive effect. Such a judgment precludes a plaintiff from starting new proceedings as to the substance of the matter in the Member State of enforcement, even though this new procedure is cheaper than the enforcement of the judgment rendered by a court of another Member State.Footnote 33

As regards the automatic recognition of a judgment under the 2012 Brussels I Regulation (Recast), it should be pointed out that in the case of a cross-border recognition a judgment rendered in a Member State is treated as a judgment rendered in the Member State of recognition. This principle does not only apply to judgments which can be enforced under the regime of the Regulation, but also to judgments which are not capable of enforcement (e.g. declaratory judgments). A recognizable judgment still needs to fulfil certain requirements, however. According to Article 37, a party invoking recognition needs to produce a copy of the judgment satisfying the conditions necessary for establishing its authenticity and it also needs to produce the special certificate pursuant to Article 53 which is to be issued by the court of the Member State of origin. Even though Article 36 paragraph 1 states that a judgment from a Member State will be recognized in other Member States without any special proceedings being required in the Member State of recognition, under paragraphs 2 and 3 of this Article reference is made to other proceedings which can be used in the case of the recognition of such a judgment. First of all, under paragraph 2 any interested party may start a procedure to obtain a declaratory judgment. This possibility might be necessary if a judgment only has a constitutive effect, i.e. no enforcement of the judgment is possible, and the party against whom it is invoked refuses to accept (the outcome of) the judgment. Also in the case where it is unclear whether the grounds for refusal, to which reference is made in Article 36 paragraph 2, are met, a special procedure might be commenced in the Member State of recognition in order to access the possibilities for a refusal of the recognition.Footnote 34 Article 36 paragraph 3 creates a possibility for an incidental recognition of a foreign judgment if the recognition of a judgment from another Member State is invoked in the course of the proceedings.Footnote 35 This might be necessary if the outcome of the proceedings depends on the determination of the incidental question of recognition. Article 36 still does not provide for the procedural rules to be followed. It only creates the possibility for this.

3.1.3 Enforcement

The central provision of the enforcement regime under the 2012 Brussels I Regulation (Recast) is Article 39. A judgment within the meaning of the Regulation which is enforceable in the Member State of origin is to be enforced in the other Member States without any declaration of enforceability being necessary in the Member State of enforcement. Under the Regulation, there is no need for any approval by any authority in the Member State of enforcement. Article 39 abolishes the exequatur and intends to make possible the free circulation of judgments falling under the scope of the Regulation.Footnote 36 The abolition of the exequatur is one of the most criticized innovations of the Regulation, even though this principle had already been implemented in other, earlier instruments, such as the Brussels IIbis Regulation or the 2010 Maintenance Regulation. One of the arguments against abolishing the exequatur which was often used was the decision of the European Court of Human Rights (ECtHR) in the Pellegrini/Italy case.Footnote 37 The ECtHR ruled that the Contracting States to the European Convention on Human Rights (ECHR) have an obligation to verify whether a foreign judgment complies with the requirements of the provisions of the ECHR. In the context of the Brussels IIbis Regulation the ECtHR upheld the Pellegrini/Italy judgment, but it ruled that it had not been able to ‘find any dysfunction in the control mechanisms for the observance of the Convention rights’.Footnote 38 This means that there must be a possibility in the Member State of enforcement to interrupt the enforcement of a foreign judgment if it is requested to do so.Footnote 39 However, this system does not prescribe that the Member State of enforcement is obliged to ‘check’ the judgment rendered abroad. The obligation for the Member State to enforce a judgment without exequatur is indeed based on EU law.Footnote 40 The Member States, as Contracting States to the ECHR, have the obligation to guarantee the fair trial principle under Article 6 ECHR. This obligation does not require a Member State where the enforcement of a judgment from another Member State is sought to ‘check’ whether the rights under Article 6 ECHR have been observed, unless the judgment originates from a non-contracting State of the ECHR. As all the Member States are contracting States of the ECHR, a double control of the fair trial principle is not necessary.Footnote 41 There is a guarantee of equivalent protection in all Member States, in so far as this presumption can be rebutted if the protection of rights laid down in the ECHR was manifestly deficient.Footnote 42 This was also recognized by the ECtHR, which ‘is mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require’. This principle may still not infringe any fundamental rights, such as the fair trial principle.Footnote 43

Article 39 abolishes the exequatur; however, it does not introduce a full faith credit clause for all judgments. Under the conditions laid down in the Regulation, Article 39 makes the free circulation of judgments in the EU possible, without any barriers. For a judgment to enjoy free circulation it is necessary that certain requirements are fulfilled. Only an enforceable judgment within the meaning of Article 2(a) of the 2012 Brussels I Regulation (Recast) qualifies as such a judgment. If a judgment is to be enforced in another Member State, it is necessary that the court in the Member State of origin issues a certificate on the basis of Article 53. Even though it seems to be a rather theoretical, academic problem, the question may arise whether the newly introduced enforcement without exequatur has an exclusive character. It is the settled case law of the ECJ that national regimes of cross-border enforcement do not apply once a judgment falls under the scope of the Regulation.Footnote 44 The application of the national law of a Member State is precluded, even though it might be more favourable.Footnote 45 The national law may only be applied to those judgments which are not covered by the Regulation. In this respect attention is also to be paid to Recital 33. Provisional, including protective, measures rendered by a court of a Member State are covered by the regime of the Regulation, unless this court does not have jurisdiction as to the substance of the matter and the judgment containing the measure is not served on a defendant prior to enforcement. In a case where the court has based its jurisdiction on the national law or if the defendant is not summoned to appear, the recognition and enforcement of such a measure is not possible under the Regulation. However, as follows from Recital 33, the Regulation does not preclude the application of the national law of the Member States in this respect. The same applies to other judgments.Footnote 46 As regards the free circulation of provisional and protective measures under the Regulation, the question may arise whether the Regulation departs from the approach of the ECJ concerning the cross-border enforcement of provisional measures. In its Denilauler/Couchet Frères decision, the ECJ stated that judgments containing provisional or protective measures, which are rendered without a party against which these measures are directed having been summoned to appear and which are to be enforced without prior service, do fall within the enforcement system of the 1968 Brussels Convention.Footnote 47 In view of the definition of the term ‘judgment’ within the meaning of Article 2(a), the approach of the 2012 Brussels I Regulation (Recast) remains unchanged. Provisional or protective measures can only benefit from free circulation if they were rendered by a court having jurisdiction as to the substance of the matter and which were served on the defendant prior to their enforcement. The verification of the first condition is facilitated by the certificate. According to Article 42 paragraph 2(b) under (i) the court in the Member State of origin is to declare whether it has jurisdiction as to the substance of the matter. Letter c of this provision requires the creditor to hand in proof of the service of the judgment containing the provisional or protective measure if the measure was rendered without the defendant being summoned to appear. Article 2(a) does not require the defendant to be aware of the fact that proceedings have been initiated. However, the defendant still has to have the possibility to object against the rendered measure. The goal of the service of the judgment prior to enforcement is to fulfil the criteria of a fair trial. The service of a judgment makes it possible for the measure to be the subject of an inquiry in adversary proceedings in the Member State of origin.Footnote 48

Parallel to Article 36 making the automatic recognition of a judgment possible, Article 39 introduces the possibility of automatic enforcement. A basis for the abolition of any control in the Member State of enforcement prior to the enforcement is mutual trust in each other’s legal systems within the EU.Footnote 49 This decision by the policy makers is politically motivated and grounded on a fictive postulate of the existence of mutual trust in the legal systems of the Member States.Footnote 50 In a certain way Article 39 introduces an autonomous characteristic of a judgment rendered by a court of a Member State. A judgment is enforceable not only in the Member State of origin, but also in other Member States. It precludes the Member States, other than the Member State of origin, from introducing requirements which would restrict the free circulation of judgments.

As a consequence of the free circulation afforded to a judgment within the meaning of the 2012 Brussels I Regulation (Recast), according to Article 40 such a judgment has the power to proceed towards the adoption of any protective measures which exist under the law of the Member State of enforcement. The mere existence of an enforceable judgment creates this creditor’s right. The question may arise whether the existence of this right is necessary, as under Article 39 the creditor may proceed to enforce a judgment without any proceedings being required. It should be pointed out that Article 40 is limited to enforcement measures. Even though Article 40 refers to the national law of the Member State of enforcement, it implicitly ‘overrules’ the requirements of that law which may contravene this right awarded to the judgment creditor.Footnote 51 As there is still a possibility for the defendant to object against the enforcement of the judgment, it is necessary for the creditor to swiftly freeze any assets which are capable of enforcement.Footnote 52

3.1.4 Preliminary Observations

From a practical point of view, the abolition of the exequatur is very favourable for a judgment creditor. He can directly address the enforcement authority in the Member State in order to proceed with the enforcement of a foreign judgment. It is up to the judgment debtor to object to the enforcement in proceedings under the national law of the Member State of enforcement.Footnote 53 The judgment debtor cannot be deprived of his right to do so. This right is given to him in general by, for example, the ECHR and by Article 47 of the EU Human Rights Charter. One could still claim that there is no unconditional free circulation of judgments. If requested to do so every Member State can control a foreign judgment. However, a Member State is not allowed to exercise this state power of its own motion. The 2012 Brussels I Regulation (Recast) does not adopt the regime of, for example, the Regulation on the European Enforcement Order, where there is almost no possibility to oppose the recognition of enforcement in the Member State of enforcement.Footnote 54 Under that regime the judgment debtor has to take an active role and object to the judgment in the Member State of origin. Only if the judgment is set aside is there no possibility of enforcement in another Member State. Under the 2012 Brussels I Regulation (Recast) it is possible under certain circumstances that a judgment is enforceable in the Member State of origin, but if a ground for refusal is met, this judgment cannot be enforced in another Member State. The abolition of the exequatur proceedings also has a practical advantage for the judgment debtor. The judgment debtor is not obliged to battle ‘on different fronts’. Under the 2001 Brussels I Regulation he could only object to the recognition of the judgment in the proceedings granting the exequatur. In order to object against the enforcement of the judgment the debtor needed to start a new procedure under the national law of the Member State of enforcement.Footnote 55 Under the 2012 Brussels I Regulation (Recast) all objections against the recognition and enforcement of the judgment are concentrated in one procedure in the Member State of enforcement. Unless the Regulation provides otherwise, those proceedings are governed, according to Article 41, by the law of that State. The possibility of opposing the enforcement of a judgment from another Member State and invoking the grounds for refusal listed in the Regulation is a residue of the exequatur proceedings.Footnote 56 There are no proceedings as regards the ‘importation’ of a foreign judgment; there are only grounds for refusal which can be invoked; however, these are to be effectuated under the national law of the Member State of enforcement.

The grounds for refusal are not assessed by a court of the Member State of enforcement ex officio. Any interested party is to request that the recognition, and thus the enforcement, is to be refused based on the grounds for refusal listed in the Regulation. As a consequence of this approach,Footnote 57 a judgment from a Member State may be enforced in another Member State even though it is contrary to the public policy of the Member State of enforcement.Footnote 58

3.2 Brussels IIbis Regulation

As family matters are excluded from the scope of the 2012 Brussels I Regulation (Recast) as well as being excluded from its predecessor, the 2001 Brussels I Regulation,Footnote 59 the Brussels IIbis Regulation was introduced, especially in the field of the recognition and enforcement of judgments concerning family matters.Footnote 60 This Regulation facilitates the free circulation of judgments, authentic documents and agreements within the EU. It created a set of unified rules for the recognition and enforcement of a judgment rendered by a court in a Member State.

3.2.1 Recognition

As one of the main goals of this Regulation is to facilitate the free circulation of judgments, the starting point is the automatic recognition of judgments falling within the Regulation’s scope of application. According to Article 21 paragraph 1, a judgment rendered by a court in a Member State is to be recognized in the other Member States without any special procedure being required. As is the case under the 2012 Brussels I Regulation (Recast), even though a judgment is to be recognized automatically, any interested party may apply for a decision for the recognition of a judgment given in another Member State.

The recognition of a judgment may be denied under certain circumstances which are laid down in Article 22, dealing with the grounds for the non-recognition of judgments relating to divorce, legal separation of the annulment of a marriage, and in Article 23, dealing with the grounds for the non-recognition of judgments relating to parental responsibility. It goes beyond the scope of my contribution to discuss all of these grounds. One could say that these grounds are intended to guarantee that the principle of fair trial is observed in the Member State of origin of the judgment as well as that any possible conflict with other judgments is limited. As the free circulation of judgments is based on mutual trust in the law systems of the Member States, a review of the jurisdictionFootnote 61 of the court of the Member State of origin and a review of the judgment as to the substance of its matter are prohibited.Footnote 62

3.2.2 Enforcement

As regards the enforcement of judgments, the Brussels IIbis Regulation introduced two different tracks. In two particular cases there is a ‘fast’ track. According to Article 41 the rights of access granted in an enforceable judgment given by a court of a Member State are recognized and enforced in another Member State without any need for a declaration of enforceability and without any possibility of opposing the judgment in the Member State of enforcement. This is also the case with regard to enforceable judgments concerning the return of a child in child abduction cases. According to Article 42 these judgments may not be opposed in the Member State of enforcement, nor is a declaration of enforceability required. In these situations, the exequatur has been abolished. Decisions not falling under the aforementioned articles can also benefit from the free circulation of judgments. However, they do fall under the ‘general’ track. According to Article 28, an enforceable judgment on the exercise of parental responsibility in respect of a child is to be enforced in another Member State on the application of an interested party.Footnote 63 It is therefore necessary to obtain a declaration of enforceability in the Member State of enforcement. However, it must be borne in mind that the court in the Member State of enforcement which has jurisdiction to deal with a request for this declaration is to give its decision without delay. The person against whom enforcement is sought and the child concerned are not heard at that point. Nor are they entitled to oppose the application in the first phase.Footnote 64 Besides the formal requirements which are to be verified, such as whether the decision is to be considered a judgment within the meaning of the Regulation, whether the judgment falls within the scope of the Regulation and whether the application for the declaration is ‘accompanied’ by the certificate issued by the court in the Member State of origin, the court is to assess the existence of the grounds of non-recognition.Footnote 65

Both systems require, however, that a court in a Member State of origin issues a certificate before a judgment can benefit from the free circulation guaranteed by the Regulation. As regards the proceedings related to the issuing of the certificate, each of the tracks has its own approach. As in the case of a decision concerning the right of access or the return of a child in a child abduction case, the certificate is issued ex officio; in other situations the certificate is issued at the request of an interested party.Footnote 66

It is also to be pointed out that this ‘two-track’ approach with its differences as regards the treatment of a foreign judgment may cause problems in actual practice. If a judgment on parental responsibility also contains measures on the right of access, only the latter can benefit from enforcement without a declaration of enforceability, as for this measure this declaration has been abolished according to Article 41. However, as regards the other part of the judgment, for example a measure by which custody rights are granted, a declaration of enforceability is required. As already mentioned above, there is a possibility in the Member State of enforcement to oppose the recognition of judgments falling under the ‘general’ track. A situation is thus created whereby a right of access is recognized and enforced without the possibility of opposing the recognition thereof in the Member State of enforcement, whereas the legal ground for the existence of the right of access, namely the custody right, may be opposed and, in a worst case scenario, the recognition thereof may be denied.Footnote 67

The Brussels IIbis Regulation leaves the enforcement proceedings as such untouched. According to Article 47 of the Regulation the enforcement procedure is governed by the law of the Member State of enforcement. That law also determines whether an act is to be considered as an enforcement act. This may cause some problems in practice as well.Footnote 68

The Regulation does not contain a provision under which in the Member State of enforcement the measure ordered in a Member State of origin’s judgment could be adapted to suit the legal system of the State of enforcement.Footnote 69 This may under certain circumstances cause problems in legal practice, as in the Member State of enforcement the effects which are granted to the judgment are the same as those awarded under the law of the Member State of origin. Even though the Regulation is only intended to harmonize the rules of private international law and leaves the rules of international procedural law untouched, the second sentence of Article 41 para. 1 and Article 42 para. 1 states that the court of the Member State of origin may in the circumstance of Articles 41 and 42 declare a judgment enforceable even if national law does not provide for enforceability by operation of law, notwithstanding any appeal.Footnote 70 The main goal of this provision is the swift and efficient cross-border enforcement of measures concerning children. The effect of ‘provisional enforceability’ is to be recognized in the Member State of enforcement and cannot be denied due to Articles 41 and 42.Footnote 71 All objections against the judgment are to be dealt with by the courts of the Member State of origin. As there are no possibilities to oppose the recognition of judgments falling under Articles 41 and 42, irreparable damage may occur, especially in the case of an order for the return of a child within the meaning of Article 42. However, as the enforcement proceedings are governed by the national law of the Member State of enforcement, the enforcement might be suspended under the application of the national law of the latter State.Footnote 72

3.2.3 Proposed Changes

As far as the European Commission is concerned, the two-tracks approach is to be abolished. According to the 2016 Proposal for a Recast of the Brussels IIbis Regulation, the exequatur is to be abolished for all decisions falling under the scope of application of the Regulation.Footnote 73 Still, the 2016 Proposal introduces a new enforcement procedure which is to be started in the Member State of enforcement by the person seeking the enforcement of a decision.Footnote 74 The abolition of the exequatur is to be accompanied by the introduction of procedural safeguards. With these safeguards, the defendant is to be able to apply for an effective remedy and his right to a fair trial is guaranteed as well. Still, the factual enforcement of an enforceable decision from another Member State is governed by the national law of the Member State of enforcement. However, the 2016 Proposal states explicitly that such a decision is to be enforced in another Member State under the same conditions as a decision rendered in the Member State of enforcement. The court of that Member State may still adapt the measures or orders contained in such decisions if these measures or orders are not known in the Member State of enforcement. The new measures ordered must have equivalent effect and are to pursue similar aims and interests.

3.3 Maintenance Regulation

As already mentioned, the decisions relating to maintenance matters were covered by the Brussels I Regulation, until the Maintenance Regulation entered into force on 18 June 2011.Footnote 75 The latter Regulation introduces two different tracks for the recognition and enforcement of decisions. On the one hand, there is a procedure regarding judgments rendered by a court of a Member State which is bound by the 2007 Hague Protocol. The other procedure covers decisions rendered in Member States where the 2007 Hague Protocol does not apply.Footnote 76 In my opinion it was not mandatory to make a difference between decisions of Member States bound by the 2007 Hague Protocol and decisions of Member States where this Protocol does not apply. Enforcement without exequatur would be possible without the use of unified conflict rules. However, as this approach meets the requirements of the Stockholm Programme, the exequatur is being abolished due to the unification of the conflict rules. If the national courts or authorities have to apply the same conflict rules, compared to those cases where the Member States apply different conflict rules, there is much less possibility of forum shopping.Footnote 77 To limit the possibilities of forum shopping, decisions from Member States not applying the uniform conflict rules require an exequatur in the Member State of enforcement prior to their enforcement. In the case of cross-border enforcement there is no possibility to choose which procedure is to be initiated. Which track is to be followed depends on the question whether the Member State of origin is bound by the 2007 Hague Protocol. Therefore, the first track applies even if the judgment is rendered in a Member State where the Protocol applies, and the recognition and enforcement thereof is requested in a Member State not bound by the Protocol.Footnote 78 Article 17 does not require the recognition and enforcement to take place in a Member State bound by the 2007 Hague Protocol.Footnote 79 In my opinion as a consequence of this interpretation a decision rendered e.g. in the Netherlands or in Germany is to be recognized and enforced in Denmark or in the UK without any proceedings being required, even though the latter States are not bound by the 2007 Hague Protocol.Footnote 80

3.3.1 Track for the 2007 Hague Protocol Decisions

According to Article 17, a judgment rendered by a court of a Member State bound by the 2007 Hague Protocol is to be recognized and enforced in another Member State without any special procedure being required in the Member State of enforcement. No declaration of enforceability is required.Footnote 81 Recognition leads to an extension of those effects given to the judgment according to the law of the Member State of origin in the Member State of enforcement (the principle of effect extension; Wirkungserstreckung). However, compared to other existing instruments on cross-border recognition and enforcement in the EU, such as the Regulation on the European Enforcement Order, the Regulation on European Payment Order Procedure or even the Brussels IIbis Regulation, a decision falling under Article 17 does not have to meet special requirements.Footnote 82 The recognition and enforcement of a decision in maintenance matters does not in any way imply the recognition of any family relationship between the maintenance creditor and the maintenance debtor.Footnote 83 Contrary to the 2012 Brussels I Regulation (Recast) there are no grounds for non-recognition. Nor can a decision be the subject of proceedings on recognition or on non-recognition in the Member State of enforcement. The consequence of abolishing the exequatur in the Member State of enforcement is that a decision relating to a maintenance matter from a Member State bound by the 2007 Hague Protocol is to be enforced in another Member State in the same way as a decision of the court of the Member State of enforcement. However, the enforcement of a decision from a Member State bound by the 2007 Hague Protocol can be refused or suspended in limited cases.Footnote 84 All objections against the decision which is to be enforced are addressed to a court in the Member State of origin. As under certain circumstances the defendant did not take part in the proceedings in the Member State of origin, Article 19 of the Regulation introduces an obligation for the Member State to create proceedings in which this defendant is able to apply for a review of the judgment. Article 19 creates an extraordinary remedy for a defendant in default. This defendant can still challenge the decision in the Member State of origin by using the remedies under the national law of that State. The introduction of this new right by the Regulation does not affect the possibilities given to the defendant under that law.Footnote 85 However, the right of the defendant in default to apply for a review is limited to two situations. First, in a case where the defendant was not able to enter the proceedings leading to the decision at hand because he had not been served with the document instituting this proceedings in due time and in such a way as to be able to arrange for his defence. The second possibility to apply for a review is where the defendant was not able to enter the proceedings by reason of force majeure or due to special circumstances without any fault on his part. In a case where the defendant could challenge the decision in the Member State of origin, but failed to do so, he cannot apply for a review of the decision in the Member State of origin.Footnote 86

3.3.2 Track for Decisions Not Covered by the 2007 Hague Protocol

If a decision relating to maintenance matters from a Member State not bound by the 2007 Hague Protocol is to be enforced in another Member State, the system of the 2001 Brussels I Regulation is to be followed. According to Article 23, such a decision is recognized without any proceedings being required.Footnote 87 However, for enforcement the interested party needs to apply under Article 26 for an exequatur in the Member State of enforcement in unilateral proceedings. In accordance with Article 30, the court seized with a request for an exequatur is to decide on this request within 30 days after the formalities are completed.Footnote 88 The party against whom the enforcement is sought is not entitled to take part in these proceedings. Even though it is contrary to the cross-border enforcement of decisions relating to maintenance matters from Member States bound by the 2007 Hague Protocol, the Regulation contains a list of grounds for refusal and these grounds are not reviewed in the Member State of enforcement in these proceedings. The exequatur is rendered after the formal requirements of Article 28 have been met. The party against whom the enforcement is sought can appeal against the exequatur on the basis of the grounds for non-recognition laid down in the Regulation.Footnote 89

3.3.3 Enforcement

A decision which is enforceable can be enforced in another Member State either directly (Article 17) or after it is declared enforceable in the Member State of enforcement (Article 26). Article 41 para. 1 underlines the principle of the free circulation of judgments by stating that a decision from a court of a Member State is to be enforced in another Member State under the same conditions as a judgment rendered by a court in the State of enforcement. Whether a judgment is enforceable is to be determined under the law of the Member State of origin. As under the legal systems of some Member States judgments relating to maintenance matters cannot be declared to be provisionally enforceable, Article 39 introduces a harmonized rule of enforcement law. A court of the Member State of origin may declare a decision provisionally enforceable, even if the law of that Member State does not provide for enforceability by operation of law. The aim of this rule is to ensure the swift and efficient recovery of a maintenance obligation and to prevent the delaying of actions.Footnote 90

4 Final Observations

Depending on the area of the law concerned, the cross-border enforcement of judgments is simplified in different ways.Footnote 91 Whether there is a possibility of a ‘check’—and how limited it may be—depends on the interests concerned. As the 1968 Brussels Convention had simplified cross-border enforcement in civil and commercial matters by introducing harmonized exequatur proceedings under which the court seized with a request for an exequatur performed a limited ‘check’, the 2012 Brussels I Regulation (Recast) introduced cross-border enforcement without any ‘check’ by abolishing the exequatur at the entrance of a judgment which is to be enforced in another Member State. Other areas of law followed. However, the approach of abolishing the exequatur was not the same in all the instruments discussed. Under the 2012 Brussels I Regulation (Recast) there is still a possibility to oppose recognition and enforcement in the Member State of enforcement on the grounds mentioned in the Regulation as well as on the grounds in the national law of that Member State. Under the 2010 Maintenance Regulation this possibility does not exist. The step-by-step approach which is used in the EU legislation concerned may lead to a danger of the fragmentation of rules (‘Gefahr der Rechtszersplitterung’), especially given the special position of Denmark, Ireland and the United Kingdom.Footnote 92 The sectoral abolition of the exequatur might be justified by the fact that the defendant deserves less protection. On the other hand, the existence of the principle of mutual recognition, which seems to create a ‘fifth’ freedom in the case law of the ECJ, is not unconditional, in particular it is being restricted by the provisions on the protection of the defendant.Footnote 93 However, the necessity for the existence of provisions on the protection of the defendant in the Member State of enforcement seems to be—sometimes—important.Footnote 94 The question may still arise whether there is a difference in approach as regards control of the grounds for non-recognition. The concentration of all objections against recognition and enforcement in one procedure, as was introduced under the 2012 Brussels I Regulation (Recast), seems to be very practical and attractive for the defendant as he has only to ‘fight one battle’. However, in my opinion it generally makes no difference compared to the previous system under the 2002 Brussels I Regulation.Footnote 95 Does the approach of the 2016 Proposal of the Recast of the Brussels IIbis Regulation bring any change? The exequatur procedure is to be replaced by a new (harmonized) procedure for non-enforcement. The defendant may invoke the grounds for non-recognition in this procedure. This seems to be less effective compared to the existing system of the Brussels IIbis Regulation as the enforcement of a decision cannot be initiated without this procedure.Footnote 96

The overall abolition of exequatur within the EU presumes a full harmonization of the national law of the Member States of the EU.Footnote 97 As the exequatur has been partially abolished, this might be—however—a stimulant for the further harmonization of the national law systems to prevent differences and to support the smooth working of the area of freedom, security and justice. It should still be pointed out that the abolition of exequatur is often accompanied by a step-by-step harmonization to improve and support the smooth working of cross-border enforcement without exequatur.

The abolition of exequatur extends the effects of a judgment by a court of a Member State to another Member State. An enforceable judgment can also be enforced in another Member State in the same way as a judgment of a domestic court. An internal free market for court decisions within the EU is being created.