Seit Februar 2016 | Remedies concerning enforcement of foreign judgment according to Brussel I
Brussels I Recast (Regulation No 1215/2012 on the jurisdiction and the recognition and enforcement of judgements in civil and commercial matters – BIA), which has replaced Brussels I Regulation is one step forward towards simplification and expedition of cross-border enforcement of debts, but some existing issues remained unsolved, and some new ones have already been identified. With the abolishment of the exequatur, the issue of remedies in both the Member State of origin and the Member State of enforcement is gaining new and somehow different importance. Recourses in the state of origin have to be researched from the perspective how they actually serve the foreign debtor to protect his rights in order to minimise the need to challenge the foreign judgment in the state of enforcement. Specific topic should be devoted to the provisional measures or to the speed intervention to enable timely protection of rights. The success of the BIR is significantly dependant on implementation into national systems, which significantly differ among each other. The procedure for refusal of enforcement is to be governed by the law of the Member State addressed as far as it is not covered by the BIR; deadlines for appealing will be decided by national law. BIR does not clarify how to proceed to such adaptation opening relevant questions that will also be addressed in the project. The comparative analysis will also include the reference to Regulation No. 655/2014 establishing European Account Preservation Order Procedure, as no such corresponding provisions exist in the B I R. The preamble insinuates that the grounds against recognition and enforcement of foreign judgement are supposed to be submitted and decided mostly as preliminary question together with other objections in enforcement procedure but the separate procedure for recognition or non-recognition of foreign title is also available under choice of the parties. Less demanding and costly more effective “incidenter” proceedings within enforcement procedure will of course be easier to set forth in systems with court enforcement procedure than in the states with autonomous private enforcement agents distant to the court. Member states have to notify the Commission about the way and the authority competent to decide on the motion to refuse the recognition or to recognise the foreign title in separate procedure. The adequate type of procedure is thus an open issue. However, the advantage of BIR is that this new separate procedure will not suspend the enforcement; the question remains what other remedies in member states could be introduced to postpone the enforcement. BIR stipulates grounds for refusal of foreign title, which have to be functionally analysed with regard of their relevance for future unification activities. Specific problem is the violation of public policy of the enforcement state divided into procedural and substantive “ordre public”, but the debtors are rarely successful on these grounds. For that reason, there have been suggestions to leave public policy out of BIR, but it remained as an “emergency break”. The project will analyse application of substantive public policy and its suggested replacement with some other measures. Research on refusal grounds will be followed by comparison of the creditor’s chance to opt for enforcement upon EU Regulations 805/2004, 1896/2006, 861/2007. It will be conducted through tight cooperation amongst experts from both theory and practice; we will encourage participation from scholars, judiciary, advocates, notaries, business sector, and – very important – state authorities, ministries and legislators. A functional comparative study on national law shall be performed.
Ca. 20.000 Euro
02.2016 – 02.2018
Projektmitarbeiterinnen und -mitarbeiter:
Prof. Dr. Christian Wolf