In relation to the Brussels Convention, the article clarifies the concept of judgments and recognition. In addition, it also discusses ipso jure recognition, partial recognition, and special procedures to establish recognition. The grounds for refusal and the public policy clause are also discussed.
A judicial decision is a demonstration of sovereignty, an act resulting from the exercise of state sovereignty. Therefore, a foreign court decision only has domestic effects if recognized domestically.
Concept of Judgment
The rules of the Brussels I Regulation on the recognition and enforceability of foreign judgments apply only to judgments that fall within the scope of the Regulation in terms of their subject matter and time. The material scope covers civil and commercial matters. Foreign judgments originating in excluded areas of law (e.g. insolvency proceedings, arbitration proceedings) cannot be recognized under the Regulation.
Only a judgment may be the subject of recognition, the definition of which is set out in Article 32 of the Regulation. The term 'judgment' refers to any decision made by a court or tribunal in a Member State, including a decree, order, decision, or writ of execution, as well as a decision on the allocation of costs or expenditures by a court officer."
Concept of Recognition
Unlike other international treaties, the Brussels I Regulation does not define the concept of recognition. Among others, the European Court of Justice has interpreted the concept of recognition. In the Hoffmann case, it stated that a foreign judgment recognized under the Brussels Convention must in principle have the same effect in the state that recognizes it as in the state that issued it. This position is also to be followed because only the extension of effects can ensure the free circulation of judgments in the European Judicial Area.
Ipso Iure Recognition
The main provisions of the recognition procedure are set out in Article 33(1) of the Brussels I Regulation. It provides that a judgment given in one Member State shall be recognized in another Member State without any special procedure being required. Recognition shall be automatic, immediate, and complete, without any special application being required and without any costs or expenses being incurred, as if it were a judgment of that state.
Partial Recognition
Partial recognition is possible by analogy with partial enforceability under Article 48 of the Brussels I Regulation. This can take place when several claims have been decided at the same time in the foreign judgment. If not all of these claims fall within the scope of the Regulation, only partial recognition is an option.
Special Procedure to Establish Recognition
Although the Regulation is based on the automatic recognition of judgments given in other Member States, Article 33(2) allows for the possibility of a special procedure for recognition. This may be necessary in the case of judgments that, because of their content, cannot be declared enforceable, such as declaratory judgments or judgments of formation of court.
Reasons of Refusal
Recognition of decisions may be refused on the grounds listed in Article 34. The grounds for refusal must be interpreted narrowly since they prevent the free movement of judgments within the European Union. The court must examine the existence of grounds for refusal not of its own motion but only in the event of an objection. The grounds for refusal may be waived only in exceptional cases, such as where the decision to be recognized is so seriously prejudicial to public policy (Article 34(1)) that it is liable to endanger the interests of the state or where the rule of exclusive jurisdiction has been disregarded.
The public policy clause
The public policy clause, which is the first of the grounds for refusal, is of an exceptional nature. This clause "can only play a role in exceptional cases," as confirmed by the case law of the European Court of Justice.
Article 34(1) provides that a decision may not be recognized where such recognition would be manifestly contrary to public policy in the Member State in which recognition is sought. For the application of the clause, the public policy of the recognizing state must always be taken into account. For the application of the clause, the public policy of the recognizing state must always be taken into account.
Krombach v. Bamberski, Case
In its judgment in the Krombach case, the European Court of Justice also answered the question of the gravity of the prejudice to public policy of the recognizing state that may lead to a refusal of recognition. Since the court of the recognizing state cannot review the merits of a foreign judgment, recognition of the judgment cannot be refused merely on the ground that there is a difference between the law applied by the court of the issuing state and the law that would have been applied if the dispute had been brought before it.
Nor can the court of the recognizing state review the correctness of the legal and factual findings made in the decision. According to the Court of Justice, the public policy clause may be invoked only if "the recognition or enforcement of a decision given in another Member State is so unacceptably contrary to the legal order of the State addressed as to constitute an infringement of a fundamental principle.
In order for a review of a foreign judgment to be respected, the infringement must be based on a breach of a rule of law considered fundamental in the legal order of the state addressed.
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