Remedies concerning Enforcement of Foreign Titles according to Brussels I Recast

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 (BIR) is one step closer towards the simplification and expedition of cross-border enforcement of debts. However, some existing issues remain unsolved 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 importance. Recourses in the state of origin have to be researched from the perspective of how they actually serve the foreign debtor to protect his/her rights in order to minimise the need to challenge the foreign judgment in the state of enforcement. Specific topics should be devoted to the provisional measures or to the speedy intervention to enable timely protection of rights. The success of the BIA is significantly dependant on the 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 long as it is not covered by BIA. For example, deadlines for appealing will be decided by national law. BIA does not clarify how to proceed to such adaptation, therefore 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 BIA. The preamble insinuates that the grounds against recognition and enforcement of foreign judgement are supposed to be submitted and decided mostly as preliminary questions, together with other objections in enforcement procedure. However, the separate procedure for recognition or non-recognition of foreign title is also available under choice of the parties. Less demanding and costly 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 European 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 BIA is that a new separate procedure will not suspend the enforcement; the question remains what other remedies can Member States introduce to postpone the enforcement. BIA stipulates grounds for refusal of foreign title, which have to be functionally analysed with regard of their relevance for future unification activities. A specific problem is the violation of public policy of the enforcement state being 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 the 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 among experts from both theory and practice; we will encourage participation from scholars, judiciary, advocates, notaries, businesses, and – very important – state authorities, ministries and legislators. A functional comparative study on national law shall be performed.