Eligible grounds for refusal of enforcement

Recognition and thus enforcement can be refused within the narrowly interpreted limits of Article 46 in conjunction with Article 45 of the Brussels I Regulation. However, the possible grounds for refusal can only be raised as an objection at the request of the debtor in accordance with Article 46 et seq. of the Brussels I Regulation and are therefore not examined ex officio.

According to the express wording of Article 46 of the Brussels I Regulation, only the grounds listed in Article 45 of the Brussels I Regulation can be considered as grounds for refusal. Further substantive objections to the title are, according to the correct view, not considered.

The following is a rough overview of the possible grounds for refusal:

“Obvious” violation of public policy, Article 45 (1a) EU GDPR

Article 45(1)(a) of the EU CDR requires a “manifest” breach of public policy.

As with “normal” third-country judgments, the requested court is prohibited from conducting a general review of the judgment (prohibition of so-called révision au fond). In particular, it is therefore irrelevant for the eligibility for recognition whether the judgment was the result of proper proceedings and whether the court of origin correctly determined and assessed the facts.

In the case of a considerable “obvious” violation of public policy, it is only a matter of blatant and therefore very rare cases in which, from the perspective of the requested state, recognition would appear to be almost intolerable.

The limits to be applied in this respect are basically derived from the recognition-friendly European law, although the ordre public differs from state to state.

Please note:

The provisions on jurisdiction are expressly (cf. Art. 45 para. 3 sentence 2 Brussels I Regulation) not covered by the public order. This means that even an EU judgment issued by a court without jurisdiction can be enforced in Germany without the lack of jurisdiction being an objection. Special defenses exist in the case of an exclusive jurisdiction agreement in accordance with the little-known provision in Article 31 (2) of the EU Regulation. Please read my separate article on this.

Improper initiation of proceedings, Article 45(1)(b) EU CDR

Not every error in the initiation of proceedings constitutes an obstacle to recognition.

Thus, the absence of a translation, which is in itself necessary, does not automatically lead to the refusal of recognition. This applies, for example, if the defendant in the main proceedings asserted or could assert in an appeal lodged there that the document initiating the proceedings had not been sent to him in the proper form.

As a rule of thumb, it can be stated that the decisive criterion is whether the defendant in the initial proceedings had the right to be heard. The details of this question are much disputed and require an assessment in each individual case.

Incompatibility with another decision, Article 45 para. 1 c) and d) EU GDPR

Article 45 para. 1 c) and d) of the EU Regulation concern cases in which the judgment in question is irreconcilable with another domestic judgment (lit c) or with a foreign judgment, i.e. a judgment given either in a Member State other than the “requested” Member State or in a third country. Incompatible means that the legal consequences established in the judgments are mutually exclusive.

If the conflict situation described above exists, a decision issued in the requested state always takes precedence, even if it was issued later. This may result in a foreign judgment having temporary effect and this effect then ceasing ex nunc as a result of a conflicting domestic judgment.

If it is a judgment from another member state or a third country, the conflict situation is resolved using the priority principle. If the judgment from the other member state or the third country was issued earlier, it takes precedence.

Disregard of special competences, Article 45 (1) e) EU GDPR

Finally, Article 45(1)(e) of the EU CDR deals with the infringement of special rules of jurisdiction of the EU CDR, e.g. in the case of insurance matters and consumer matters.

Procedure

Due to the abolition of exequatur proceedings, the examination of grounds for refusal of enforcement only takes place in the enforcement proceedings, Art. 46 et seq. Brussels I Regulation.

The procedure requires an application by the debtor, who also has the burden of presentation and proof for the existence of grounds for refusal (Art. 46 Brussels I Regulation), which must be submitted to the courts notified by the Member States in accordance with Art. 75 lit. a Brussels I Regulation. In Germany, these are exclusively the regional courts in accordance with Section 1115 (1) ZPO.

If a court – only upon application – refuses enforcement in enforcement proceedings because, in the opinion of this court, there are grounds for refusal of recognition, this is an incidental decision and only has effect for the respective proceedings. It is therefore possible that another court of the requested Member State may take a different view with regard to the identical judgment, which would mean contradictory decisions within a Member State.

As this would be unsatisfactory, the EU GDPR provides for the application under Article 36 (2):

“Any person entitled may, in accordance with the procedure laid down in Section 3, Subsection 2, apply for a declaration that none of the grounds for refusal of recognition referred to in Article 45 apply.”

If the requested court has determined, upon application pursuant to Article 36(2) EUTMR, that there is no ground for non-recognition of the judgment in question, this decision is final in the requested state and between the parties to the proceedings and can no longer be called into question inter partes. This follows directly from Union law, even if the Regulation itself does not contain any statement in this regard. The same applies vice versa if, as a result of such an application, the court has established that there is a ground for refusal, Article 45(4) EUTMR.