Enforcement of judgments obtained in one EU country in another EU country is governed by the Brussels I regulation which superseded the Brussels Convention and the Lugano Convention.
Lugano convention
The Lugano Convention covers issues of jurisdiction where one of the countries is an EFTA (European Free Trade Association) country of which there are 3-Iceland, Switzerland and Norway.
Brussels I regulation
Brussels I regulation governs issues of jurisdiction and enforcement of judgments between countries who signed up to Brussels I. This therefore covers most EU countries.
The purpose of Brussels I was to provide uniformity as to the proper forum and jurisdiction in matters of transnational litigation.
The general rule arising from Brussels I is set out in Article 2 of the regulation which states simply that persons shall be sued in the member state in which they are domiciled.
For a business this would be where the company has it’s principal place of business.
However there are a number of exceptions to the above general rule.
Exceptions to general rule
In these exceptions to the general rule a Plaintiff may have a choice of jurisdiction in which to bring his legal proceedings.
- Contract- a person may be sued in the jurisdiction where the contract was to be performed.
- Insurance-there are special rules in relation to insurance contracts which are set out in section 3 of the regulation
- Tort-a person can be sued in the state where the harmful event occurred as well as his place of domicile
- Connected proceedings
- Consumer contracts-the Plaintiff can bring proceedings in his own state or in the state of the Defendant
- Some contracts of employment
- Property related proceedings-Article 22 stipulates that the proceedings be brought in the state in which the property is located.
Article 23 allows the parties to agree on which state will have jurisdiction-this is called Prorogation of Jurisdiction and this agreement should be in writing.
Service of legal proceedings under Brussels I regulation
Service of documents under Brussels I is governed in Ireland by Order 11A of the Rules of the Superior Courts and provides that legal proceedings may be issued without any need to obtain leave of the High court.
Service of documents under Lugano convention
When cases are governed by the Lugano convention the appropriate rules to follow are set out in 11B of the Rules of the Superior Courts.
Service of judicial and extrajudicial documents in member states of the EU in civil and commercial matters
SI 280 of 2009 sets out the rules and regulations in respect of service of judicial and extrajudicial documents in EU member states in Civil and Commercial cases.
Recognition and Enforcement of Judgments between EU States
The recognition and enforcement of judgments between EU member states is dealt with under the Brussels I regulation, specifically articles 30 to 56. In fact article 33 states that a judgment obtained in one EU member state will be recognised in other member states as a matter of course.
However this recognition will not be of much benefit to you if you are not able to enforce your Judgment in Ireland against the assets of an Irish debtor.
Order 42A of the Rules of the Superior Courts in Ireland sets out the procedure to have a foreign judgment enforced in Ireland and it involves an application to the Master of the High Court who is the designated authority.
To make such an application it will be necessary to swear a grounding affidavit which will exhibit the judgement which you wish to have enforced and proof that the judgment is enforceable in the state in which it was given.
This affidavit will also need to provide an address in Ireland for the service of documents on you as applicant.
If judgment was given in default of Appearance or Defence you will need to show proof of service of necessary documents on the defendant.
In addition you will need to produce an Annex V Certificate which is a certificate provided by court officials in the state in which judgment was granted and which sets out certain details concerning the case and judgment.
Declaration of enforceability
Once the necessary documents above have been filed and exhibited the Master of the High Court will issue a Declaration of Enforceability which has the same effect as a Judgment of the High Court in Ireland.
A Notice of Enforcement is then served on the Defendant along with the order of the Master. The Master’s Order will contain a time period within which the debtor can appeal the decision, generally 1 month.
Defences to enforcement of EU judgments
Article 34 provides some defences to having a judgment from another EU state enforced in Ireland or any other state for that matter. These include:
- If recognition of the judgment would be contrary to public policy in the state in which application is made
- If the debtor was not served with documents and the judgment is in default of appearance or defence
- If it is irreconcilable with other judgments granted in the dispute between the parties.
Generally the most common problem is 2 above where the originating summons was not served on the defendant.
By Terry Gorry
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