Hovaguimian JPIL

Journal of Private International Law
ISSN: 1744-1048 (Print) 1757-8418 (Online) Journal homepage: https://www.tandfonline.com/loi/rpil20
The enforcement of foreign judgments under

Brussels I bis: false alarms and real concerns
Philippe Hovaguimian
To cite this article: Philippe Hovaguimian (2015) The enforcement of foreign judgments under
Brussels I bis: false alarms and real concerns, Journal of Private International Law, 11:2, 212-251,
DOI: 10.1080/17441048.2015.1068001
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Journal of Private International Law, 2015
Vol. 11, No. 2, 212–251, http://dx.doi.org/10.1080/17441048.2015.1068001
The enforcement of foreign judgments under Brussels I bis: false

alarms and real concerns
Philippe Hovaguimian*
This article reviews the recognition and enforcement procedure adopted in the
Brussels I bis Regulation, including the much-debated abolition of
intermediary exequatur proceedings. It examines the new responsibilities of
enforcement organs and discusses some of the doctrinal concerns in this
regard. The article then underlines the new regime’s potential flaws with
respect to both the debtor’s and the creditor’s rights during enforcement.
Such shortcomings include the problematic discretion of Member States
either to delay the satisfaction of the creditor’s claim well beyond the time
limits formerly set in Brussels I, or to impose irreversible enforcement
measures much sooner than the debtor’s rights of defence previously
allowed. Overall, this analysis seeks to show that the optimistic goals of the
Brussels I reform – some of them based on questionable assumptions – are
hardly fulfilled by the final Recast.
Keywords: Brussels I Regulation; Brussels I bis Regulation; enforcement
procedure; exequatur; foreign judgments; judgments regulation; Recast;
recognition and enforcement; Regulation (EU) No 1215/2012
A. Introduction
Over the past decades, judicial cooperation in Europe has allowed for the increas-
ingly free movement of judgments between Member States. In the latest iteration
of this trend, the vastly influential “Brussels I” regime in civil and commercial
matters1 has undergone a long-debated reform which further accelerates the
cross-border circulation of judgments.
The extent of the Brussels I reform in the context of recognition and enforce-
ment is first examined in broad outline (B). This article then considers the impact
*MLaw candidate (University of Zurich), LLM candidate (King’s College London). Faculty
of Law, University of Zurich, Switzerland. Email: philippe.hovaguimian@kcl.ac.uk. The
author is indebted to Professor Tanja Domej for her valuable insights and comments on
the master’s thesis this article is based upon.
1
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recog-
nition and enforcement of judgments in civil and commercial matters, [2001] OJ L12/1
(hereinafter “Brussels I” or “BRI”). This article cites commentaries on both the Brussels
I Regulation and the parallel Convention on jurisdiction and the recognition and enforce-
ment of judgments in civil and commercial matters, signed in Lugano on 30 October
2007, [2009] OJ L147/5 (hereinafter “Lugano Convention” or “LC”).
© 2015 Taylor & Francis

Journal of Private International Law 213
of the new regime (C) and whether the new Regulation did fulfil the optimistic goals
that prompted its revision (D). The penultimate section shortly reviews the alterna-
tive systems suggested for the cross-border circulation of judgments (E).
B. Recognition and enforcement under Brussels I bis: an overview

The Brussels I Recast2 was adopted on 6 December 2012 and applies from 10
January 20153 across the EU,4 though only to legal proceedings instituted after
10 January 2015.5 The application of Brussels I is maintained for proceedings
instituted before 10 January 2015, including the recognition and enforcement of
the resulting judgments,6 even if handed down after that date.
While it discards some of the bolder amendments proposed in the 2010
Commission draft,7 the Recast did fulfil the commitment of abolishing the
2
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters (recast), [2012] OJ L351/1 (hereinafter “the Recast”,
“Brussels I bis”, or “BRI-bis”). On the Recast in general: JP Beraudo, “Regards sur le
nouveau règlement Bruxelles I sur la compétence judiciaire, la reconaissance et l’exécution
des décisions en matière civile et commercial” (2013) 140 Journal du Droit international
(Clunet) 741–63; F Cadet, “Main features of the revised Brussels I Regulation” [2013]
Europäische Zeitschrift für Wirtschaftsrecht 218–22; EB Crawford and JM Carruthers,
“Brussels I bis– the Brussels Regulation recast: closure (for the foreseeable future)”,
[2013] Scots Law Times 89–95; L d’Avout, “La refonte du règlement Bruxelles I” [2013]
Recueil Dalloz 1014–25; A Dickinson and E Lein (eds), The Brussels I Regulation
Recast (Oxford University Press, 1st edn, 2015); T Domej, “Die Neufassung der
EuGVVO: Quantensprünge im europäischen Zivilprozessrecht” (2014) 78 Rabels Zeits-
chrift für ausländisches und internationales Privatrecht 508–50; H Gaudemet-Tallon and
C Kessedjian, “La refonte du règlement Bruxelles I” [2013] Revue trimestrielle de droit eur-
opéen 435–54; P Hay, “Notes on the European Union’s Brussels-I ‘Recast’ Regulation: An
American Perspective”, (2013) 13 The European Legal Forum 1–8; A Markus, “Die revi-
dierte europäische Gerichtsstandsverordnung” [2014] Aktuelle Juristische Praxis 800–19;
PA Nielsen, “The new Brussels I Regulation” (2013) 50 Common Market Law Review
503–28; A Nuyts, “Bruxelles Ibis: présentation des nouvelles règles sur la compétence et
l’exécution des décisions en matière civile et commerciale”, in A Nuyt (ed), Actualités
en droit international privé (Brussels, Bruylant, 2013), 77–134; M Pohl, “Die Neufassung
der EuGVVO im Spannungsfeld zwischen Vertrauen und Kontrolle” [2013] Praxis des
Internationalen Verfahrensrechts (IPRax) 109–14; J von Hein, “Die Neufassung der Euro-
päischen Gerichtsstands- und Vollstreckungsverordnung (EuGVVO)” [2013] Recht der
internationalen Wirtschaft 97–111.
3
Art 81 BRI-bis.
4
Including Denmark, which has become bound by the changes made in the Recast through
an international agreement (see [2014] OJ L240/1 and [2013] OJ L79/4).
5
Art 66(1) BRI-bis.
6
Ibid, Art 66(2).
7
European Commission, “Proposal for a Regulation of the European Parliament and of the
Council on jurisdiction and the recognition and enforcement of judgments in civil and commer-
cial matters (Recast)”, COM(2010) 748 final (hereinafter “Commission proposal” or “CP”).
214 P. Hovaguimian
intermediate procedure known as exequatur, through which the state addressed
declares a foreign judgment enforceable within its territory.8 The Recast provides
that enforceable judgments of a Member State shall be enforceable in another
Member State “without any declaration of enforceability being required”.9 The
enforcement of a foreign ruling is then subject to the same conditions as those of
a domestic one.10
Without a declaration of enforceability, the “competent enforcement auth-
ority” petitioned for enforcement under Article 42 BRI-bis is the first authority
confronted with the foreign judgment in the state addressed. The creditor11
must provide the authority with a copy of the judgment12 and the now vastly
more elaborate certificate of Annex I BRI-bis,13 issued upon request of any
8
Brussels I bis follows the trend of other EU Regulations that abolished intermediary pro-
cedures as per the commitments of the 1999 Tampere European Council meeting (Presi-
dency Conclusions, No 200/1/99, 15 and 16 October 1999, paras 33–34); see the
exequatur-free circulation of judgments and orders provided under Arts 41–42 of
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of judgments in matrimonial matters and the
matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ
L338/1, Regulation (EC) No 805/2004 of the European Parliament and of the Council of
21 April 2004 creating a European Enforcement Order for uncontested claims, [2004] OJ
L143/15 (hereinafter “EEO Reg”), Regulation (EC) No 1896/2006 of the European Parlia-
ment and of the Council of 12 December 2006 creating a European order for payment pro-
cedure, [2006] OJ L399/1 (hereinafter “Payment Procedure Reg”), Regulation (EC) No
861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a
European Small Claims Procedure, [2007] OJ L199/1 (hereinafter “Small Claims Reg”),
Arts 17–22 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction,
applicable law, recognition and enforcement of decisions and cooperation in matters relat-
ing to maintenance obligations, [2009] OJ L7/1 (hereinafter “Maintenance Reg”), and
Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June
2013 on mutual recognition of protection measures in civil matters, [2013] OJ L181/4.
For an administrative law perspective, compare Art 13 of Council Directive 2010/24/EU
of 16 March 2010 concerning mutual assistance for the recovery of claims relating to
taxes, duties and other measures, [2010] OJ L84/1, providing that claims of the requesting
Member State “be treated as if it was a claim of the requested Member State”. For a recent
succinct overview of the new system of recognition and enforcement see P Beaumont and L
Walker, “Recognition and enforcement of judgments in civil and commercial matters in the
Brussels I Recast and some lessons from it and the recent Hague Conventions for the Hague
Judgments Project” (2015) 11 Journal of Private International Law 31, 37–42.
9
Art 39 BRI-bis. This includes the removal of registration requirements for enforceable judg-
ments: see eg Rule 74.3(1) of the English Civil Procedure Rules 1998 (CPR), as amended
by the Civil Procedure (Amendment No. 7) Rules 2014 (SI 2014 No 2948 (L 32)).
10
Art 41(1) in fine BRI-bis.
11
For the sake of simplicity, this article uses – even in potentially non-monetary contexts –
“the creditor” and “the debtor” to designate the parties on either side of the enforcement
procedure. “The debtor” is thus interchangeable with “the person against whom enforce-
ment is sought” frequently used in the Recast, or with “the judgment debtor”.
12
Art 42(1)(a) BRI-bis.
13
Ibid, Art 42(1)(b).
interested party.14 The 2007 Heidelberg Report15 had rightly criticised the
EU-wide practice of requiring the creditor to provide the full translation of a
judgment when applying for exequatur.16 The Recast accordingly allows a
court or enforcement authority to require a translation of the full judgment
only “where necessary” or when otherwise “unable to proceed”.17 The
Recast further abolishes the requirement for the creditor to have a postal
address or a representative ad litem in the state of enforcement,18 which the
Heidelberg Report also criticised19 for creating a factual requirement of
(costly) legal representation.
Under Brussels I, the declaration of enforceability was served upon the
debtor, accompanied by the original judgment.20 Either party could file an
appeal against the exequatur decision within one month of service thereof –
two if the debtor was domiciled outside the state of enforcement.21 The appeal
decision could in turn be challenged by a second appeal under Article 44 BRI.
Both appellate courts were competent to review the grounds for refusal of
Articles 34 and 35 BRI.22
Since the lack of exequatur and service thereof would otherwise leave
the debtor unaware of an impending enforcement, the Recast now provides
that the court of origin’s certificate be served on the debtor prior to the first
enforcement measure,23 accompanied by the judgment, if not already
14
Ibid, Art 53.
15
B Hess, T Pfeiffer and PF Schlosser, “Report on the Application of Regulation Brussels I
in the Member States” (Study JLS/C4/2005/03, Final Version September 2007), hereinafter
the “Heidelberg Report”.
16
Heidelberg Report, para 515, stating that a translation of the operative part of the judg-
ment, complemented by the certificate, is sufficient for the purpose of the first-instance
review.
17
Namely in the following contexts: Art 37(2) (recognition), Art 42(4) (enforcement), Art
47(3) (refusal application), and Art 54(3) BRI-bis (judgment adaptation).
18
Art 41(3) BRI-bis, formerly required in Art 40(2) BRI. Art 47(4) BRI-bis dispenses of this
requirement for the debtor as well.
19
Heidelberg Report, para 517.
20
Art 42(2) BRI.
21
Ibid, Art 43(1), (5).
22
Ibid, Art 45(1). According to these provisions, the recognition of a judgment shall be
refused if it were rendered in violation of the special or exclusive jurisdictions pursuant
to Sections 3, 4 and 6 of the Regulation’s Chapter II (Art 35 BRI), if it is manifestly contrary
to the public policy of the requested state, if the judgment was given in default of appear-
ance and the defendant was not given the occasion to arrange his or her defence appropri-
ately, or if the recognition conflicts either with a foreign judgment rendered earlier and
subject to recognition, or with a domestic judgment (Art 34 BRI).
23
A reasonable improvement over the Commission proposal, which acknowledged that the
moment where the debtor is first acquainted with the foreign judgment and “able to react”
could well be “the date of the first enforcement measure having the effect of making his
property non-disposable in whole or in part” (Art 45(4) CP). Critical of the CP in that
regard: A Dickinson, “Surveying the Proposed Brussels I bis Regulation: Solid Foundations
216 P. Hovaguimian
served.24 A protective measure however does not require prior service of the
certificate.25
Having no formal exequatur decision to challenge in the new regime, the
debtor can now submit a special application for refusal of enforcement26 requiring
a court to examine the grounds for refusal provided under Article 45 BRI-bis.27 In a
departure from Brussels I,28 the Recast also explicitly allows the debtor to submit a
preventive application for refusal of recognition.29 The grounds for refusal under
review in either case are essentially identical to those available in the previous
regime.30 To the extent possible and in accordance with the legal system of the
state addressed, the Recast prescribes that the debtor be also able to invoke, in
the same procedure, the grounds for refusal (or suspension31) of enforcement
available under national law32 (eg prior compliance with the judgment) as long
as they do not conflict with the Regulation’s own grounds for refusal.33 The pro-
cedure for the refusal application is otherwise governed by national law.34 The
decision may then be appealed by either party.35 A second appeal is available if
the Member State has designated a corresponding court.36
Under Brussels I, interim protection of the creditor’s interests was guaranteed
through Article 47 BRI. The creditor could apply for provisional measures regard-
less of a declaration of enforceability,37 although such request was subject to the
requirements and conditions of the state addressed – and, according to some, a
review of the Regulation’s grounds for refusal.38 When in possession of a
but Renovation Needed” (2010) 12 Yearbook of Private International Law 247, 267; Gau-
demet-Tallon and Kessedjian, supra n 2, 452 para 59; P Kiesselbach, “The Brussels I
Review Proposal – an Overview”, in E Lein (ed), The Brussels I Review Proposal Uncov-
ered (London, British Institute of International and Comparative Law, 2012), 1, 18.
24
Art 43(1) BRI-bis.
25
Ibid, Art 43(3).
26
Art 46 BRI-bis.
27
The competent court is designated by the respective Member States pursuant to Art 75(a)
BRI-bis.
28
See infra text to n 175.
29
Art 45(1), (4) BRI-bis.
30
Two amendments can nonetheless be noted in Art 45(1)(e) BRI-bis: first, the violation of
Section 5 jurisdictions, ie in matters of employment, is now explicitly included as a ground
for refusal. Secondly, the violation of all such special jurisdictions is only covered insofar as
the defendant was the weaker, protected party.
31
Art 41(2) BRI-bis.
32
Ibid, Recital 30.
33
Ibid, Art 41(2).
34
Ibid, Art 47(2).
35
Ibid, Art 49.
36
Ibid, Art 50.
37
Art 47(1) BRI.
38
See eg P Oberhammer, in F Stein and M Jonas (eds), Kommentar zur Zivilprozessord-
nung, Band 10: EuGVVO, GVG (Tübingen, Mohr Siebeck, 22nd edn, 2011), Art 47 BRI
para 6 fn 8, with references on the doctrinal divide.
declaration of enforceability, however, the creditor gained direct and uncondi-
tional access39 to the protective measures of the enforcement state.40
The Recast’s exequatur-free regime accordingly provides for protective
measures immediately available to the creditor pursuant to Article 40 BRI-bis –
akin to Article 47(2) BRI, yet without the need to obtain a declaration of enforce-
ability beforehand.
The debtor, in turn, benefits from Article 51 BRI-bis, which gives both
appellate courts discretion, under the same conditions as Article 46 BRI, to
stay their proceedings while an appeal in the state of origin is pending.
Article 44 BRI-bis41 provides further protection: while Article 47(3) BRI
limited enforcement proceedings to protective measures until the appeal of
Article 43 BRI had been determined or the deadline to file such appeal has
passed, the substance of this provision can be partly found in the new
Article 44(1) BRI-bis, which allows the court addressed by a refusal application
(or the subsequent appeals42) to limit the enforcement proceedings to protective
measures, to condition enforcement on the provision of a security, or to
suspend, either wholly or in part, the enforcement proceedings. By explicitly
granting such discretion to the appellate courts, the Recast incidentally codifies
a disputed power under Brussels I: the doctrine is namely divided as to whether
the second appellate court may extend, upon request,43 the protection of Article
47(3) BRI beyond the first appeal, either by a suspension of enforcement44 or
by a limitation to protective measures.45 Article 44(2) BRI-bis further compels
39
Proceeding to such measures after exequatur must be guaranteed without any further judi-
cial authorisation, even if ordinarily required under national law (Case 119/84 P Capelloni
and F Aquilini v JCJ Pelkmans [1985] ECR 3147, paras 24, 26). This however does not
affect the content and general availability of such measures under national law (see eg
Banco Nacional de Comercio Exterior SNC v Empresa de Telecommunicaciones de
Cuba SA [2007] EWCA Civ 662, [2007] ILPr 51 [44] (Tuckey LJ), and infra text to n 73).
40
Art 47(2) BRI.
41
Inspired by Art 21(3) Maintenance Reg.
42
Recital 31 BRI-bis.
43
On the even more controversial ex lege extension of Art 47(3) up until the exequatur
decision becomes final (ie potentially at the conclusion of a second appeal) pursuant to §
84a(2) Austrian Enforcement Regulation (Exekutionsordnung), see JCT Rassi, in HW
Fasching and A Konecny (eds), Kommentar zu den Zivilprozessgesetzen (Vienna, Manz,
2nd edn, 2011), Art 47 BRI para 14.
44
As per eg Art 103(2) Swiss Federal Supreme Court Act (Bundesgerichtsgesetz); suppor-
tive of the provision’s applicability: DA Hofmann and OM Kunz, in C Oetiker and T Weibel
(eds), Basler Kommentar, Lugano-Übereinkommen (LugÜ) (Basel, Helbing Lichtenhahn,
1st edn, 2011), Art 47 LC paras 243–44; D Staehelin, in F Dasser and P Oberhammer
(eds), Kommentar zum Lugano-Übereinkommen (Bern, Stämpfli, 2nd edn, 2011), Art 47
LC para 45; contra G Walter and T Domej, Internationales Zivilprozessrecht der
Schweiz (Bern, Haupt, 5th edn, 2012), 508–9 fn 188.
45
As per eg § 22(3) German Recognition and Enforcement Implementation Law (Aner-
kennungs- und Vollstreckungsausführungsgesetz); supportive of the provision’s applica-
bility: C Althammer, in T Simons and R Hausmann (eds), Brüssel I-Verordnung:
218 P. Hovaguimian
the competent authority46 to suspend the enforcement of a
judgment upon request when its enforceability has been suspended in the
state of origin.
Apart from the debtor’s preventive application for refusal of recognition
mentioned above, the Regulation’s procedure for recognition is mostly
unchanged. As under Brussels I, a judgment can still be incidentally recog-
nised without special procedure if the outcome of the proceedings depends
on said recognition.47 Such incidental recognition may be suspended if the
judgment is challenged in the state of origin48 or if an application under
Articles 46–51 has been submitted.49 The standalone procedure for recog-
nition, formerly requested through the same procedure as for exequatur, now
consists in a reversed form of the application for refusal of enforcement: pur-
suant to Article 36(2) BRI-bis, any interested party can request the court to
establish that there are no grounds for refusal of recognition in accordance
with the procedure of Articles 46–51 BRI-bis. The Recast now requires the
production of the certificate when seeking recognition50 whereas Brussels I
did not.51
Finally, Article 54(1) BRI-bis provides that unknown measures or orders
contained in judgments be adapted to their closest equivalent under the law of
the state addressed. While the questions of how and by whom the adaptation
should be carried out are left to national law,52 the adaptation must be challenge-
able by any party before a court.53
Kommentar zur VO (EG) 44/2001 und zum Übereinkommen von Lugano (Munich, IPR,
1st edn, 2012), Art 47 BRI para 10; G Mäsch, in J Kindl, C Meller-Hannich and HJ
Wolf (eds), Gesamtes Recht der Zwangsvollstreckung: Handkommentar (Baden-Baden,
Nomos, 2nd edn, 2013), Art 47 BRI para 13; contra P Mankowski, in T Rauscher
(ed), Europäisches Zivilprozess- und Kollisionsrecht, EuZPR / EuIPR: Kommentar
(Munich, Sellier European Law, 2010–2011), Art 47 BRI para 21; Oberhammer, supra
n 38, Art 47 BRI para 23; K Pörnbacher, in R Geimer and RA Schütze (eds), Der inter-
nationale Rechtsverkehr in Zivil- und Handelssachen (Munich, Beck, 40th supplement,
2011), Art 47 BRI para 19.
46
Although Art 44(2) BRI-bis was modelled after Art 21(3) in fine Maintenance Reg, the
Recast fails to include a provision similar to Art 71(1)(f) Maintenance Reg for Member
States to designate said “competent authority” (ie whether the debtor is meant to invoke
Art 44(2) before the court addressed by a refusal application or directly to the enforce-
ment authority – or even both). One can however expect Member States to use the very
same procedure and authorities, with respect to Art 44(2) BRI-bis, as under the Mainten-
ance Reg.
47
Art 36(1), (3) BRI-bis.
48
Ibid, Art 38(a). The condition of a mere “challenge” appears broader than that of an
“ordinary appeal” under the previous regime.
49
Ibid, Art 38(b).
50
Ibid, Art 37(1)(b).
51
Art 53(2) BRI.
52
Recital 28 BRI-bis.
53
Art 54(2) of the Recast.
C. The impact of the Recast on cross-border enforcement
As has been outlined above, the procedure for the enforcement of foreign judgments
has undergone several changes, the chief amendment being the abolition of the
intermediate exequatur procedure. The following sections address specific conse-
quences of the revised procedure under Brussels I bis in more detail. The assessment
follows different segments of the enforcement procedure: (1) the judgment import
phase, concentrating on the moment where authorities are first confronted with
the foreign judgment; (2) the closely related but optional phase of judgment adap-
tation and concretisation, where authorities may adapt otherwise unenforceable
measures to national law and its requirements; and finally (3) the phase of judgment
enforcement and inspection, covering every step taken immediately thereafter,
namely the enforcement of the judgment and the remedies provided against it.54
1. Judgment import
(a) Judgment import as a “recognition of enforceability”: a problem of addressee
Authorities in the state of enforcement must first be confronted with the foreign
judgment. The exequatur here fulfils a judgment import function:55 Under the Brus-
sels I regime, the first-instance court seized for exequatur56 reviewed a limited set of
mostly formal requirements before declaring the foreign judgment domestically
enforceable: Article 41 BRI provided for an ex parte procedure where the court
inspected the documents provided by the creditor, namely a copy of the judgment
and the standardised certificate of Annex V BRI57which the state of origin issued
upon request of any interested party.58 The exequatur court further examined ex
officio whether the matter fell within the Regulation’s scope of application,
whether the judgment qualified as such under Article 32 BRI, and whether it was
enforceable in the state of origin pursuant to Article 38(1) BRI.59
The question is whether this function justified the need for exequatur. Indeed,
a special procedure giving effect to the enforceability of a foreign judgment
54
This delineation is loosely based on the set of purposes attributed to the exequatur by P
Oberhammer, “The Abolition of Exequatur” [2010] Praxis des Internationalen Verfahrens-
rechts (IPRax) 197, mentioning a “title import” and “title inspection” function. D Schramm,
“Abolition of Exequatur”, in A Bonomi and C Schmid (eds), La révision du Règlement 44/
2001 (Bruxelles I). Quelles conséquences pour la Convention de Lugano? – Revision der Ver-
ordnung 44/2001 (Brüssel I). Welche Folgen für das Lugano-Übereinkommen?, Actes de la
23e Journée du droit international privé du 8 avril 2011 à Lausanne (Geneva, Schulthess,
2011), 59, 63–64, further refines the former by suggesting the function of “title supplemen-
tation” and “title transformation”.
55
Oberhammer, ibid (“title import” in the original terminology).
56
Referred to as “exequatur court” in this article, as opposed to the higher “appeal courts”.
57
Art 53 BRI.
58
Ibid, Art 54.
59
See eg Mankowski, supra n 45, Art 41 BRI para 1.
220 P. Hovaguimian
might seem a counter-intuitive requirement in light of other aspects of the Brus-
sels regime: allowing a judgment’s foreign enforceability to be incidentally
recognised during domestic enforcement proceedings would only match the
recognition of all other effects of a judgment under Article 33(1) BRI, where
no special procedure is required.60 Article 47(1) BRI even allowed the creditor
to obtain provisional measures under national law and thereby (temporarily)
produce a foreign judgment’s enforceable effects without the need for prior
exequatur.61
Yet the requirement of a special procedure can be partly explained through
the difference in the addressed authorities. Courts were the addressee of pre-
exequatur requests for protective measures62 and are typically addressed with
the recognition of a judgment’s non-enforceable effects.63 The initiation of enfor-
cement, on the other hand, is handled by either judicial or non-judicial authorities
depending on the state’s legal system. Providing for the review of judgment
import requirements by the enforcement-initiating authorities thus entails shifting
a set of duties usually carried out by courts – whether as exequatur courts,
courts ordering provisional measures, or courts ruling upon the recognition of
non-enforceable effects as a preliminary matter – onto a (potentially) non-judicial
organ.
60
R Arenas García, “Abolition of Exequatur: Problems and Solutions – Mutual Rec-
ognition, Mutual Trust and Recognition of Foreign Judgments: Too Many Words in
the Sea” (2010) 12 Yearbook of Private International Law 351, 358; A Markus, “Pro-
bleme der EuGVVO-Revision: Begriff der Entscheidung und Abschaffung des
Exequaturverfahrens”, in F Lorandi and D Staehelin (eds), Innovatives Recht: Fes-
tschrift für Ivo Schwander (Zurich, Dike, 2011), 747, 760–61; Oberhammer, supra
n 54, 199, who points out the lack of “customs office” for judgment effects subject
to recognition.
61
Although whether the authority incidentally recognising the foreign judgment for the
purpose of Art 47(1) BRI must accordingly review the grounds for refusal of Arts 34–35
BRI is starkly disputed (supra n 38).
62
Such measures are subject to the conditions of national law (Art 47(1) BRI) which
by nature require some degree of judicial appreciation, eg as to the credibility of the
claim or the threat of its impeding frustration – though parts of the doctrine regard
Art 47(1) BRI as attenuating these requirements (see Oberhammer, supra n 38, Art
47 BRI paras 6–7). See further infra text to nn 70–73 regarding interim measures
requested unconditionally post-exequatur, potentially to the enforcement organs
themselves.
63
Non-enforceable effects subject to recognition can be divided into procedural effects
(such as res judicata) and the effects of a declaratory or a constitutive judgment (eg declar-
ing the invalidity of a contract or the dissolution of a company). Procedural effects may only
be recognised in court proceedings as they have by definition no influence beyond such pro-
ceedings. Declaratory or constitutive effects are usually recognised by a court, though the
judgment may also by handled by eg an administrative authority having to determine a pre-
liminary issue of private law.
(b) Involvement of judicial and non-judicial authorities during enforcement
Non-judicial authorities initiate enforcement proceedings in the majority of
EU Member States. Four types of systems can be differentiated:64 bailiff-oriented
systems are used in eg France, Belgium, the Netherlands, Luxembourg, Scotland,
and many Eastern European countries, which all empower a state-appointed agent
outside the court system to carry out the enforcement upon request of the creditor;
the administrative system is in force both in Sweden and in Finland, where the
enforcement is entrusted to a government agency (eg under the supervision of
the Ministry of Finance) entirely separated from the courts; only Austria, Spain
and Denmark use the court-oriented system, where enforcement is carried out
by judicial authorities; mixed systems are known to Germany and England,
where the enforcement is partly carried out by courts and partly by bailiffs.
Bailiff-oriented or administrative systems of enforcement do not exclude a
judicial intervention at the outset per se.65 However, the non-judicial authorities
of such systems tend to be the first confronted with a request for enforcement,
with the court intervening only when the debtor subsequently contests the
enforcement.66
Therefore, following the abolition of exequatur, only in a minority of cases do
courts remain the first authorities to be confronted with the foreign judgment –
namely in Austria, Spain, Denmark, and for specific measures in other jurisdic-
tions. In these cases, the judicial authorities involved at the outset can simply
assume the duties of the former exequatur court and carry out the review of
requirements for judgment import. The view that the judgment import function
of exequatur fulfils no important role67 is thus accurate, albeit only in that context.
The remaining cases – which provide for a mere optional judicial involve-
ment68 upon contestation by the debtor – do however leave bailiffs and adminis-
trative bodies as the first authorities confronted with the judgment and its import
requirements.69
64
B Hess, “Comparative Analysis of the National Reports”, in M Andenas, B Hess and P
Oberhammer (eds), Enforcement Agency Practice in Europe (London, British Institute of
International and Comparative Law, 2005), 25, 34–36; see also the European e-Justice
Portal’s state-by-state profiles on enforcement procedure, available at https://e-justice.
europa.eu/content_procedures_for_enforcing_a_judgment-52-en.do (accessed on 18 June
2015).
65
For instance, courts may need to handle requests for specific enforcement measures like
the attachment of earnings.
66
See G Cuniberti and I Rueda, “Abolition of Exequatur. Addressing the Commission’s
Concerns” (2011) 75 Rabels Zeitschrift für ausländisches und internationales Privatrecht
286, 309, differentiating between systems with “required” and “optional” judicial
involvement.
67
Oberhammer, supra n 54, 198; Schramm, supra n 54, 63.
68
See supra n 66.
69
The case of Germany was initially unclear due to its particular procedure: German law had
always required that a judgment, whether foreign or domestic, be granted a so-called
222 P. Hovaguimian
While general enforcement proceedings are initiated by the authorities men-
tioned above, it should be noted that the creditor’s direct access to protective
measures under Article 40 BRI-bis may also confront non-judicial authorities
with a foreign judgment. Indeed, while the creditor’s pre-exequatur access to
provisional measures under Article 47(1) BRI typically involved a judicial
organ,70 the authority addressed under Article 40 BRI-bis is now the first con-
fronted to the foreign judgment. If the immediate and unconditional access to pro-
tective measures under Article 47(2) BRI71 entails that the creditor should be
able to address his or her request for protective measures directly to a non-judicial
enforcement agent rather than a court,72 said enforcement agent would now be the
creditor’s first stop under Article 40 BRI-bis. However, compelling the creditor to
address a court for the purpose of requesting protective measures, even under
Article 47(2) BRI, is ultimately a matter of national law and does not frustrate
the Regulation.73 It follows that, depending on the law of the enforcement state,
Article 40 BRI-bis may entail that non-judicial authorities are the first confronted
with a foreign judgment in the context of protective measures.
(c) The extent of the first-instance review then and now

Having non-judicial authorities carry out the judgment import function of exequa-
tur is potentially problematic: it was said that such authorities may be faced with
“execution clause” by a court (Vollstreckungsklausel) as the first step towards enforcement.

Whether the abolition of exequatur under Brussels I bis entailed the abolition of the
execution clause was thus disputed. The matter seems now settled by the legislative
implementation of the Recast (Gesetz vom 8. Juli 2014 zur Durchführung der Verordnung
(EU) Nr. 1215/2012 sowie zur Änderung sonstiger Vorschriften), which removes the
execution clause requirement for Brussels I bis judgments and thus leaves the German
bailiffs as the first authorities confronted with the foreign judgment – that is, for enforce-
ment measures within their purview (see eg §§ 808 and 883 German Code of Civil
Procedure).
70
See supra n 62.
71
See supra n 39.
72
As suggested by Walter and Domej, supra n 44, 519.
73
R Geimer and RA Schütze, Europäisches Zivilverfahrensrecht. Kommentar zur EuGVVO,
EuEheVO, EuZustellungsVO, EuInsVO, EuVTVO, zum Lugano-Übereinkommen und zum
nationalen Kompetenz- und Anerkennungsrecht (Munich, Beck, 3rd edn, 2010), Art 47
BRI para 2; Hofmann and Kunz, supra n 44, Art 47 LC para 103; J Kropholler and J
von Hein, Europäisches Zivilprozessrecht, Kommentar – Internationale Zuständigkeit,
Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen (Frank-
furt am Main, Recht und Wirtschaft, 9th edn, 2011), Art 47 BRI para 12; Mankowski, supra
n 45, Art 47 BRI para 9; MH Plutschow, in AK Schnyder, Lugano-Übereinkommen (LugÜ)
zum internationalen Zivilverfahrensrecht: Kommentar (Zurich, Dike, 2011), Art 47 LC para
12; Staehelin, supra n 44, Art 47 LC para 50.See also Banco Nacional, supra n 39, [45]: “In
Capelloni it seems that the judgment creditor was able to arrange for protective sequestra-
tion of the judgment debtor’s property without a court order. There is no equivalent right
here. The applicant must apply to the court for a freezing order . . .” (emphasis added).
legal issues of international procedure they are neither familiar with nor suffi-
ciently trained for.74 If true, this could defeat the purposes of efficiency and
cost reduction sought by the Recast. One should therefore examine the extent of
the exequatur court’s review under Brussels I and its transfer to the enforcement
authority in the new Regulation.
While the exequatur court under Brussels I must ensure that the aforemen-
tioned judgment import requirements are fulfilled, the review was a mostly
formal one:75 as the proceedings took place ex parte, the court examined the com-
pliance of the judgment only on the basis of the available documents76 and relied
on the presumed accuracy of the accompanying certificate.77 Indeed, while the
presumption of the certificate’s accuracy was ultimately refutable,78 overturning
said presumption is regarded as a matter of the appeal procedure,79 but not the
74
All referring inter alia to the limited training of the German bailiff (Gerichtsvollzieher):
Althammer, supra n 45, introduction to Arts 38–52 BRI para 7, Art 38 BRI para 14; German
Bundesrat response to the Commission proposal, Drucksache 833/10(B) of 18 March 2011
(hereinafter “Bundesrat response”), para 4; R Wagner and M Beckmann, “Beibehaltung
oder Abschaffung des Vollstreckbarerklärungsverfahrens in der EuGVVO?” [2011] Recht
der internationalen Wirtschaft 44, 48; M Weller, “Der Kommissionsentwurf zur Reform
der Brüssel I-VO” [2012] Zeitschrift für Gemeinschaftsprivatrecht 34, 36; see on the enfor-
cement authorities’ similar lack of jurisdiction or legal qualifications in the context of judg-
ment adaptation and concretisation (discussed in section 2 below): C Althammer,
“Unvereinbare Entscheidungen, drohende Rechtsverwirrung und Zweifel an der Ker-
npunkttheorie –Webfehler im Kommissionsvorschlag für eine Neufassung der Brüssel
I-VO?”, in R Geimer and RA Schütze (eds), Recht ohne Grenzen: Festschrift für Athanas-
sios Kaissis zum 65. Geburtstag (Munich, De Gruyter, 2012), 23, 27; Althammer, supra n
45, Art 38 BRI para 22; Bundesrat reponse, ibid; Dickinson, supra n 23, 267; J Fitchen, in
Dickinson and Lein, supra n 2, para 13.487; XE Kramer, “Cross-Border Enforcement and
the Brussels I-Bis Regulation: Towards A New Balance Between Mutual Trust and National
Control over Fundamental Rights” (2013) 60 Netherlands International Law Review 343,
356; Schramm, supra n 54, 64; LJE Timmer, “Abolition of Exequatur under the Brussels I
Regulation: Ill Conceived and Premature?” (2013) 9 Journal of Private International Law
129, 137; Wagner and Beckmann, ibid; see further A Stadler, “Kollektiver Rechtsschutz
und Revision der Brüssel I-Verordnung”, in Geimer and Schütze, ibid, 951, 953–54, on
the same qualification issues in the context of identifying conflicting judgments under the
Commission proposal.
75
Recital 17 BRI.
76
Geimer and Schütze, supra n 73, Art 54 BRI para 4; Hofmann and Kunz, supra n 44, Art
41 LC para 22; Rassi, supra n 43, Art 40 BRI para 11; D Staehelin and L Bopp, in Dasser
and Oberhammer, supra n 44, Art 38 LC para 30.
77
Hofmann and Kunz, supra n 44, Art 41 LC para 28.
78
Geimer and Schütze, supra n 73, Art 54 BRI para 3; P Gottwald, in W Krüger and T
Rauscher (eds), Münchener Kommentar zur Zivilprozessordnung: mit Gerichtsverfassungs-
gesetz und Nebengesetzen (Munich, Beck, 4th edn, 2013), Art 53 BRI para 1; Hofmann and
Kunz, supra n 44, Art 41 LC para 29; G Naegeli, in Dasser and Oberhammer, supra n 44,
Art 54 LC para 11; H Tschauner, in Geimer and Schütze, supra n 45, Art 54 BRI para 6.
79
See eg Case C-619/10 Trade Agency Ltd v Seramico Investments Ltd [2012] ECR I-(6
September), paras 34–38, freeing the appeal court, in its review of the grounds for
refusal, from any binding effect created by the certificate as to a point of fact it contained.
224 P. Hovaguimian
first-instance exequatur.80 The question thus arises: which exequatur conditions
is the certificate meant to certify? Which element benefits from such a binding
presumption until overturned in the appeal procedure?
The judgment’s enforceability in its state of origin was an explicit content of
the certificate pursuant to Annex V BRI: a binding effect on the exequatur court
was thus acknowledged in this context.81 The Recast’s more complex certificate82
remains equally binding with regard to the judgment’s enforceability in the state of
origin,83 thereby exempting the enforcement authority from further investigation.
The next exequatur condition, the Regulation’s very applicability to the foreign
judgment (ratione materiae), can sometimes prove complex and is subject to exten-
sive case law: this is where an enforcement authority’s unfamiliarity with the matter
or lack of legal training has been considered a potential obstacle.84
In this context, some argue that the Brussels I certificate implicitly indicated, as
a necessary precondition for its issuance, that the court of origin deemed the
matter a valid judgment falling within the scope of the Regulation for the
purpose of recognition and enforcement in another Member State.85 That this
fact created a binding presumption of Brussels I’s application for the exequatur
On the application of Trade Agency in the Recast’s appeal procedure, see Fitchen, supra
n 74, para 13.481.
80
Explicitly mentioning the conditions for exequatur as an appeal-only examination:
Naegeli, supra n 78, introduction to Arts 53–56 LC para 6; Oberhammer, supra n 38,
Art 54 BRI para 14; more generally referring to the facts contained in the certificate:
Geimer and Schütze, supra n 73, Art 54 BRI para 4; Rassi, supra n 43, Art 54 BRI para 12.
81
Althammer, supra n 45, Art 38 BRI para 24; Hofmann and Kunz, supra n 44, Art 41 LC
para 33; W Jennissen, in W Schuschke and W Walker (eds), Vollstreckung und vorläufiger
Rechtsschutz: nach dem achten und elften Buch der ZPO einschliesslich der europarechtli-
chen Regelungen: Kommentar (Köln, Heymann, 5th edn, 2011), Art 38 BRI para 2a; Kro-
pholler and von Hein, supra n 73, Art 38 BRI para 9; Mankowski, supra n 45, Art 38 BRI
para 19.
82
Providing for eg partial enforceability (Annex I Pt 4.4.2.–4.4.3. BRI-bis).
83
B Hess, “The Brussels I Regulation: Recent case law of the Court of Justice and the Com-
mission’s proposed recast” (2012) 49 Common Market Law Review 1075, 1102; Pohl, supra
n 2, 113 fn 64 in fine; see also U Magnus and P Mankowski, “Brussels I on the Verge of
Reform – A Response to the Green Paper on the Review of the Brussels I Regulation”
(2010) 109 Zeitschrift für Vergleichende Rechtswissenschaft 1, 3.
84
Althammer, supra n 45, introduction to Arts 38–52 BRI para 7, Art 38 BRI para 14;
Timmer, supra n 74, 140; Wagner and Beckmann, supra n 74, 48; Weller, supra n 74, 36.
85
F Pocar, “Explanatory Report on the Convention on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October
2007”, [2009] OJ C319/1, Pt 149: “The fact that the court of origin has issued the certificate
provided for in Annex V certifies that the judgment does fall within the scope of the
[Lugano] Convention. To verify the correctness of the certificate would be contrary to
the principle that the first stage of the procedure should be confined to a formal examination.
Verifying the correctness of the certificate would require a legal assessment of the judgment,
and should be reserved for the second stage of the proceedings”; supportive: A Bucher, Loi
sur le droit international privé, Convention de Lugano (Basel, Helbing Lichtenhahn,
1st edn, 2011), Art 41 LC para 2.
court is however questionable: arguably, such a presumption should only pertain
to the material contents of the certificate and not to the very prerequisites for its
consideration. This is why the scope of application of Brussels I is generally
considered freely reviewable by the first-instance exequatur court, without
binding effect through the original court’s determination on the matter.86
Transposing this cognition into the new regime, most agree that the revised
Regulation also allows the competent enforcement authority to review its applica-
bility.87 A minority88 still regards the new certificate as a sufficient attestation that
the judgment falls within the Regulation’s scope, which should accordingly not be
examined any further.89 Amongst the reasons invoked is the fact that most authors
view the similar EEO certification as preventing the state of enforcement from
reviewing the scope of application of the EEO Regulation.90 The similarity
86
Specifically addressing the cognition of the exequatur court: Althammer, supra n 45, Art
38 BRI para 14, Art 41 BRI para 2; Jennissen, supra n 81, Art 32 BRI para 5; P Stone, EU
Private International Law (Cheltenham, Edward Elgar, 3rd edn, 2014), 251 (“probably”); R
Wagner, “Vom Brüsseler Übereinkommen über die Brüssel I-VO zum Europäischen Voll-
streckungstitel” [2002] Praxis des Internationalen Verfahrensrechts (IPRax) 75, 83; in the
more general context of recognition and enforcement: Geimer and Schütze, supra n 73, Art
32 BRI paras 9–14; Hofmann and Kunz, supra n 44, Art 32 LC para 8; GE Kodek, in D
Czernich, S Tiefenthaler and GE Kodek (eds), Europäisches Gerichtsstands- und Voll-
streckungsrecht: EuGVVO, Lugano Übereinkommen, VO Zuständigkeit in Ehesachen
(“Brüssel IIa-VO”): Kurzkommentar (Vienna, LexisNexis, 3rd edn, 2009), Art 32 BRI
para 1; Kropholler and von Hein, supra n 73, Art 32 BRI para 3; Oberhammer, supra n
38, introduction to Arts 32–56 BRI para 7; F Walther, in Dasser and Oberhammer, supra
n 44, Art 32 LC para 2; P Wautelet, in U Magnus and P Mankowski (eds), Brussels I Regu-
lation (Munich, Sellier European Law, 2nd edn, 2012), Art 32 BRI para 6. It should be noted
that the majority opinion, in earlier times, did view the court of origin’s application of the
Brussels Regulation as binding for the enforcement state (Kropholler and von Hein, ibid).
87
Pohl, supra n 2, 113 fn 62; implied when voicing their concerns over the enforcement
organ’s ability to conduct such a review: Althammer, supra n 45, introduction to Arts
38–52 BRI para 7, Art 38 BRI para 14; Timmer, supra n 74, 140; Wagner and Beckmann,
supra n 74, 48; Weller, supra n 74, 36.
88
D Müller, “Die Abschaffung des Exequaturverfahrens nach dem EuGVVO-Reforment-
wurf – Wegfall überflüssiger Gläubigerblockaden oder Abschied vom effektiven
Rechtsschutz für den Schuldner?” (2012) 15 Zeitschrift für Europarechtliche Studien
329, 344–45, invoking inter alia the need to apply the mutual trust principle, if not to
the content of the judgment itself, at least to the certificate attesting the applicability of
the Regulation; Schramm, supra n 54, 67–68.
89
The Heidelberg Report, paras 634–35, also envisioned as a future legislative improvement
the binding force of the certificate with regard to the applicability of the Regulation –
specifically mentioning the corresponding advantage of delegating the judgment import
review to a non-judicial authority.
90
Müller, supra n 88, 345; supporting this limited review under the EEO Reg: Geimer and
Schütze, supra n 73, Art 20 EEO Reg para 5; Kropholler and von Hein, supra n 73, Art 21
EEO Reg para 8; T Rauscher and S Pabst, in Rauscher, supra n 45, Art 20 EEO Reg paras
20–21; R Wagner, “Die neue EG Verordnung zum Europäischen Vollstreckungstitel” [2005]
Praxis des Internationalen Verfahrensrechts (IPRax) 189, 199; K Hilbig, in Geimer and
Schütze, supra n 45, Art 5 EEO Reg paras 14–19, with extensive arguments; contra WH
226 P. Hovaguimian
appears however unconvincing, as the EEO certification itself is a formal
decision explicitly excluded from review by the enforcement state under
Article 21(2) EEO Regulation, unlike the merely informational issuance of
the Brussels certificate.91 The Maintenance Regulation, arguably the more
closely related instrument to the Brussels Recast, requires the enforcement
authorities to examine ex officio the applicability of the Regulation, unbound
by the court of origin’s determination on the matter.92 The more compelling
view thus suggests that the competent enforcement authority can examine the
Recast’s scope of application, just as the first-instance authority did in the
previous regime.
Finally, one must turn to the exequatur requirement of a foreign decision
qualifying as a valid “judgment” under the Regulation. This condition’s
complexity mainly arose in cases of judgments ordering interim measures, as
the CJEU had developed different criteria to determine whether such
measures fall within the Regulation’s recognition and enforcement regime:
the Denilauler ruling excluded ex parte interim measures when such measures
are intended to be enforced without prior service on the debtor.93 The Mietz
ruling laid out special conditions for the enforcement of interim measures
ordered by a court that did not have jurisdiction over the substance of the
Rechberger, in Fasching and Konecny, supra n 43, Art 21 EEO Reg para 9; M Stürner, in
Kindl, Meller-Hannich and Wolf, supra n 45, Art 21 EEO Reg para 9.
91
On that differentiation: I Bach, “Drei Entwicklungsschritte im europäischen Zivilprozess-
recht” [2011] Zeitschrift für Rechtspolitik 97, 98. An extrapolation of the Small Claims Reg
onto the Brussels framework would be unfruitful as well: since the debtor is fully aware that
the proceedings in the state of origin are subjected to the Small Claims procedure, he or she
is free to contest therein the Regulation’s applicability, which should therefore not be
reviewed subsequently in the state of enforcement (U Scheuer, in Fasching and Konecny,
supra n 43, Art 22 Small Claims Reg para 5; also supporting this limited review: I
Varga, in Rauscher, supra n 45, Art 22 Small Claims Reg para 10; PF Schlosser, EU-Zivil-
prozessrecht, EuGVVO, MahnVO, BagatellVO, EuZVO, EuBVO, Kommentar (Munich,
Beck, 3rd edn, 2009), Art 20 Small Claims Reg para 8). This consideration cannot be
extended to Brussels I since the Regulation does not provide a special procedure for the
state of origin: a judgment enforceable under Brussels I may have been rendered without
any involvement of the Brussels Regulation in original proceedings – and thus without
any earlier occasion for the debtor to contend the inapplicability of Brussels I on the dispute.
92
M Andrae and M Schimrick, in Rauscher, supra n 45, Art 16 Maintenance Reg paras 9–
10; R Fucik, in Fasching and Konecny, supra n 43, Art 16 Maintenance Reg para 3; T
Garber, in Kindl, Meller-Hannich and Wolf, supra n 45, Art 16 Maintenance Reg para
11; more restrictive: V Lipp, in Krüger and Rauscher, supra n 78, Art 16 Maintenance
Reg para 5, positing that the enforcement authorities may only carry out a limited review
akin to that of the EEO Reg, and thus refuse enforcement only if the documents alone
show the obvious inapplicability of the Regulation – whereas a subsequent appeal may
freely overturn the presumption of its correct application; also requiring obvious inapplic-
ability: Hilbig, supra n 90, Art 17 Maintenance Reg para 44.
93
Case 125/79 Bernard Denilauler v SNC Couchet Frères [1980] ECR 1553, para 17.
matter.94 In both cases, a judgment that did not comply with the CJEU criteria
could not be subject to the Regulation’s recognition and enforcement regime to
begin with.
Whether a judgment fulfils said criteria could not be established through the
documents submitted under Brussels I, hence the necessity for the exequatur
court to determine their observance despite the restricted review of Article 41
BRI.95 Accordingly, some initially feared that the corresponding review under the
Recast – eg establishing whether the special conditions of Mietz are fulfilled, or
ensuring that an ex parte measure has been served on the debtor pursuant to Deni-
lauler – would burden the enforcement authorities there as well.96 However, this
concern is now essentially moot: Article 2(a) BRI-bis has codified both CJEU
cases by limiting97 the scope of recognition and enforcement to interim measures
“ordered by a court or tribunal which by virtue of this Regulation has jurisdiction
as to the substance of the matter”98 and explicitly excluding ex parte interim
measures “unless the judgment containing the measure is served on the defendant
prior to enforcement”.99 Accordingly, the Recast explicitly requires that a creditor
seeking to enforce interim measures provide certification that the measure was
ordered by a court having jurisdiction over the substance of the matter100 and,
should the measure have been ordered ex parte, the proof of service.101
94
Case C-99/96 Hans-Hermann Mietz v Intership Yachting Sneek BV [1999] ECR 2277,
paras 53, 56.
95
See eg the Swiss cantonal judgment in Journal des Tribunaux [2012] III 71, 74, explicitly
entrusting the first-instance court with the review of the Denilauler criteria, superseding the
pure formality of the review under Art 41 LC: “Cette ordonnance [ex parte] ne saurait donc
bénéficier de la procédure du titre III . . . ce qui exclut l’application de la règle de l’art. 41
CLrév, prévoyant un examen restreint des conditions de l’exequatur . . . Cet élément . . . doit
donc être examiné par le juge de l’exécution saisi d’un requête selon les art. 39 ss CLrév”.
96
Wagner and Beckmann, supra n 74, 48; Weller, supra n 74, 36; contra for the reasons
cited above: Müller, supra n 88, 345.
97
The limiting effect of the article comes from its interpretation e contrario (T Domej,
“Rechtshängigkeit und in Zusammenhang stehende Verfahren, Gerichtsstandsvereinbarun-
gen, einstweilige Massnahmen”, in Bonomi and Schmid, supra n 54, 105, 127; see similarly
Markus, supra n 2, 813).
98
The Mietz criteria thus do not come into question since measures ordered by a court not
having substantial jurisdiction are excluded altogether.
99
Member States remain free to recognise and enforce either type of excluded measure by
applying the recognition regime of their national laws (Recital 33 BRI-bis). It should be
noted that, as a possibly unintended consequence, the general exclusion of the entire
Chapter III (and thereby Art 53 BRI-bis) for non-compliant ex parte measures would inci-
dentally prevent the court of origin from even issuing a certificate until the judgment has
been served upon the debtor; this arguably overshoots the CJEU’s original ruling, which
predates the issuance of harmonised certificates under Brussels I. See as a further overshoot
issue the incidentally excluded recognition of measures infringing on Mietz, noted by
Domej, supra n 97, 128.
100
Art 42(2)(b)(i) BRI-bis, referring to Annex I Pt 4.6.2.2., a yes-only tick box.
101
Ibid, Art 42(2)(c).
228 P. Hovaguimian
Thus while the certificate submitted under Brussels I failed to provide any
indication on the judgment’s compliance with the CJEU criteria – and prompted
a review by the exequatur court accordingly – this information is now either
provided in the certificate or submitted by the creditor. Like the judgment’s enfor-
ceability in the state of origin (and unlike the Regulation’s applicability ratione
materiae), the criteria to qualify as a “judgment” under CJEU case law can now
be directly ascertained through the documents submitted, removing the need for
a corresponding investigation by the enforcement organs.102 Nonetheless, the
authority still has to identify whether an interim measure was ordered ex parte
at all,103 so as to ascertain the necessity to require proof of service under Article
42(2)(c) BRI-bis.
Save for this minor clarification in the context of ex parte measures, it seems
therefore that the extent of the enforcement authority’s cognition on judgment
import requirements essentially consists in the question of the Recast’s applica-
bility ratione materiae. The next section examines whether this duty of review
presents an actual challenge for (non-judicial) enforcement authorities in the
new regime.
(d) Assessing the potential issues of judgment import

Overall, one can appreciate to some extent the concerns over enforcement auth-
orities being confronted with a foreign judgment and thereby unknown issues
of international procedure. Nonetheless, these concerns may have been overstated
given both the scarcity of cases where questions of scope would actually warrant a
review,104 and the freedom of Member States to implement better-trained centra-
lised organs which the enforcement authorities can promptly turn to whenever the
complexity of such questions requires it.105
More importantly, the enforcement authorities’ purported lack of legal
qualifications, which would delay the procedure and cause additional costs, is a
woefully German-centric concern: the bailiff-oriented systems mentioned above
102
Nuyts, supra n 2, 123, even considers that the certification of the original court’s com-
petence as to the substance of the matter would not only bind the enforcement authorities,
but also the court addressed with the application for refusal – neither of which would then be
allowed to call the attestation into question; it seems however somewhat excessive to bar the
very court reviewing the grounds for refusal from freely assessing whether a foreign
decision even qualifies as a valid judgment under the Regulation.
103
Since there is no such indication in the certificate, as opposed to judgments ordered in
default of a duly summoned defendant.
104
Not to mention the added safeguard of having the (arguably more informed) court of
origin itself, rather than a potentially secondary authority, issue the certificate under the
new regime (see Mankowski, supra n 45, Art 41 BRI para 2).
105
Weller, supra n 74, 36, mentioning the bailiff’s duty under German law to stay the enfor-
cement and await further instructions by the superior authority in cases of eg potential
exemptions from German jurisdiction.
(like France and the Netherlands) benefit from highly qualified, university-
educated enforcement agents with a status akin to that of notaries and judges.106
In administrative systems, most enforcement agents are specialised lawyers
with university degrees.107 This should immediately alleviate the apprehensions
over enforcement authorities being confronted with legal issues beyond their qua-
lifications, at least for a major part of the EU.108 Issues of private international law
at the outset of the judgment import phase are examined in court-oriented systems
by a court, and in bailiff-oriented and administrative systems by a highly qualified,
university-educated agent or even a specialised lawyer. There is thus little reason
to assume that the amended procedure defeats the purpose of the Recast by sys-
tematically causing additional delays – at least in this regard.
A valid concern remains, namely the vulnerability to fraud: beyond the
material import requirements discussed in detail above, the competent enforce-
ment authority must examine the documents submitted and their authenticity.
The lack of judicial scrutiny could increase the risk of fraud and forgeries,109
which non-judicial authorities may be ill-equipped to detect.110 In that regard,
some have rightly criticised the abolition of exequatur for authentic
instruments,111 which are even more vulnerable than judicial rulings.112 Nonethe-
less, the right of the debtor to contest inaccurately certified claims in the state of
enforcement – as opposed to eg certified judgments under Article 21(2) EEO
Reg113 – should help to mitigate these risks.
106
Hess, supra n 64, 37.
107
Ibid.
108
Wagner and Beckmann, supra n 74, 48, do admit to basing their argument solely on the
German system; see also MC Peiffer, Grenzüberschreitende Titelgeltung in der Euro-
päischen Union: die Wirkungen der Anerkennung, Vollstreckbarerklärung und Vollstreck-
barkeit ausländischer Entscheidungen und gemeinschaftsweiter Titel (Berlin, Duncker &
Humblot, 2012), 327–28 fn 23, stating that the exequatur procedure is only essential
from a German perspective, but not in the French and English systems which benefit
from highly qualified enforcement agents.
109
Dickinson, supra n 23, 267–68.
110
Timmer, supra n 74, 140.
111
Adopted in Art 58 BRI-bis.
112
Dickinson, supra n 23, 268; Kramer, supra n 74, 356; Timmer, supra n 74, 140; see PF
Schlosser, “The Abolition of Exequatur Proceedings – Including Public Policy Review?”
[2010] Praxis des Internationalen Verfahrensrechts (IPRax) 101, 104, on a further issue
exacerbated by the free circulation of authentic instruments, namely the “abstract authentic
instruments” (nicht valutierte Notarurkunden) issued in Germany, where the debtor
acknowledges an amount much higher than the actual debt while German enforcement
law provides a “very sophisticated system of rules” to balance the interests of both
parties: the free circulation of such instruments would render the debtor more easily
liable to undue amounts abroad.
113
Arenas García, supra n 60, 372, mentions cases (though possibly “an urban (legal)
legend”) of contested claims being falsely certified as EEO and shielded from opposition
in the state of enforcement.
230 P. Hovaguimian
2. Judgment adaptation and concretisation
If the judgment import stage establishes whether authorities in the enforcement
state should act on the basis of the foreign judgment, the phase of judgment adap-
tation and concretisation may be necessary to determine how the enforcement
authorities should act.114 As with the review of judgment import requirements,
this duty fell within the purview of the exequatur court under Brussels I and
would now be carried out by potentially non-judicial authorities – whose pur-
ported lack of training in the context of judgment adaptation and concretisation
also prompted concern.115
Judgment adaptation occurs when the foreign judgment contains measures or
orders unknown to the law of the enforcement state, particularly in non-monetary
cases.116 The need for judgment concretisation arises when the judgment as such –
or rather its operative part – fails to provide sufficient information for its enforce-
ment, eg when lacking indication on an applicable statutory interest rate.117
As the Heidelberg Report noted, the issue of concretisation in Brussels I can be
alleviated through the provision of harmonised certificates,118 supplementing a
fragmentary judgment with additional information. However, breaking down the
operative part of a judgment into harmonised certificate segments119 does not
entirely remove the need for judgment concretisation, especially for non-monetary
judgments.120 Even in monetary cases, certificates have their limitations.121
The Recast’s refined certificate should however solve a number of judgment
concretisation issues.122 Any remaining need for judgment concretisation
114
See Schramm, supra n 54, 63.
115
Althammer, supra n 74, 27; Althammer, supra n 45, introduction to Arts 38–52 BRI para
7, Art 38 BRI para 22; Bundesrat response, para 4; Dickinson, supra n 23, 267; Fitchen,
supra n 74, para 13.487; Kramer, supra n 74, 356; Schramm, supra n 54, 64; Timmer,
supra n 74, 137; Wagner and Beckmann, supra n 74, 49; contra Oberhammer, supra n
54, 198, who suggests that the certificate of Brussels I already provides sufficient guidance
for national enforcement authorities in that context.
116
Examples cited are specific search orders (Schramm, supra n 54, 64), or measures to
gather evidence for expert reports (Wagner and Beckmann, ibid, fn 77).
117
See eg Oberhammer, supra n 38, Art 41 BRI para 19, with extensive case law.
118
119
As suggested by B Hess, Europäisches Zivilprozessrecht (Heidelberg, Müller, 2010), § 3
para 25.
120
Wagner and Beckmann, supra n 74, 49; see also S Seidl, Ausländische Vollstreckungsti-
tel und inländischer Bestimmtheitsgrundsatz: eine Untersuchung zum autonomen und euro-
päischen Exequaturrecht und zur Abschaffung des Exequaturverfahrens (Jena, JWV, 2010),
252.
121
For instance, some sections of the current EEO certificate are ambiguously formulated,
fail to mention key points such as the capitalisation of interest, or allow the certificate to
refer to undefined factors like the “statutory interest rate” (see Seidl, ibid, 239–40).
122
Its detailed sections avoid most of the weaknesses mentioned supra in n 121: the capi-
talisation of interest may be indicated (Annex I Pt 4.6.1.5.3. BRI-bis); interest may not be set
according to external factors like the European Central Bank’s rate; it may still generally
despite the harmonised certificate could be solved through judgment adap-
tation,123 examined hereafter.
The Recast provides that unknown measures or orders be adapted to their
closest equivalent.124 The questions of how and by whom125 the judgment adap-
tation should be carried out are explicitly left to national law,126 though the adap-
tation must be subject to challenge before a court:127 Member States are therefore
free to entrust the adaptation to a court in the first place128 or to a non-judicial
enforcement organ with the subsequent safeguard of judicial review upon
request. In the former case, enforcement authorities would initiate the enforcement
as usual and, when unable to apply domestic law, request the adaptation by the
court.129 Compared with the adaptation by the exequatur court under Brussels I,
this entails the potential drawback of an enforcement authority inaccurately asses-
sing the need for judicial adaptation.130 Whichever system is elected by the
Member States, however, the concerns over delays caused by judgment adaptation
must be placed in context here as well: complex issues of adaptation remain a rare
occurrence131 and non-judicial enforcement organs are highly qualified in vir-
tually all Member States.132
3. Judgment enforcement and inspection

Under Brussels I bis, once the judgment is in the hands of the enforcement auth-
orities and, when necessary, adapted or concretised, the enforcement is initiated
against the debtor using the ordinary enforcement procedure governed by national
refer to the country of origin’s statutory interest (Annex I Pt 4.6.1.5.2. BRI-bis), in which
case the relevant statute must nonetheless be specified, arguably simplifying the task of
the enforcement authorities; while the certificate does not provide for a differentiated inter-
est rate per period (although the multiple periods definable in Annex I Pt 4.6.1.5.1.2.3. BRI-
bis could be used for this purpose), the Recast does address the issue of payment in multiple
instalments (Annex I Pt 4.6.1.4.2. BRI-bis; compare Heidelberg Report, para 509).
123
Von Hein, supra n 2, 110; Markus, supra n 2, 815; Müller, supra n 88, 345–46; more
reluctant: R Geimer, “Bemerkungen zur Brüssel I-Reform”, in R Geimer, RA Schütze
and T Garber (eds), Europäische und internationale Dimension des Rechts: Festschrift
für Daphne-Ariane Simotta (Vienna, LexisNexis, 2012), 163, 179.
124
Art 54(1) BRI-bis.
125
And presumably on whose request.
126
Recital 28 BRI-bis.
127
Art 54(2) BRI-bis.
128
Seemingly contra Kramer, supra n 74, 356.
129
Müller, supra n 88, 345–6; contra Timmer, supra n 74, 138, who assumes that the
creditor will be burdened with finding out whether the measure is known to domestic
law, and subsequently submit an application to the competent court under Art 54(1) BRI-bis.
130
Either by making needless requests for judicial adaptations or by overlooking the need
for such an adaptation,
131
Schramm, supra n 54, 64; contra Wagner and Beckmann, supra n 74, 49.
132
Supra nn 106–7.
232 P. Hovaguimian
law.133 The rules of domestic enforcement are individually complemented or
superseded by the Regulation, which integrates the review of the grounds for
refusal in a special remedy available during the enforcement procedure itself.134
(a) Application for refusal: additional grounds and designated courts

The harmonised remedy provided in Articles 46–51 BRI-bis allows a court to
review whether the enforcement should be denied on one of the grounds for
refusal. Recital 30 prescribes that the debtor should be allowed to invoke any
ground for refusal of enforcement available under national law during that
same procedure,135 to the extent permitted by the Member State’s legal system
and within the time limits to invoke such grounds under national law.136 These
grounds for refusal under national law may only be invoked to contest enforce-
ment (not recognition)137 and are limited by the Recast insofar as they are incom-
patible with the harmonised grounds of Article 45 BRI-bis138 or infringe on the
general exclusion of judgment review as to its substance.139 The Regulation
misses the opportunity to identify such grounds140 or harmonise the way they
can be invoked.141
133
Art 41(1) BRI-bis.
134
Arts 46–51 BRI-bis.
135
This amendment incidentally overturns the Prism Investments ruling: the CJEU deemed
the concentration of pleas within the Regulation’s appeal procedure, combining both the
grounds for refusal under Brussels I and under national law (such as the debtor’s compli-
ance with the judgment by the time of the appeal), to be irreconcilable with the “objectives
of efficiency and rapidity” pursued by the Regulation (Case C-139/10 Prism Investments BV
v Jaap Anne van der Meer [2011] ECR I-9511, para 42). These objectives are however argu-
ably uncompromised by the Recast’s concentration of pleas, given both the immediate
availability of protective measures and the lack of (automatic) enforcement limitation
pending an appeal as was provided under Art 47(3) BRI (see however infra section (c)
on the potential obstructions to enforcement).
136
Compare infra text to nn 180–81 on the time limits to invoke the grounds for refusal of
the Regulation.
137
Recital 30 in fine BRI-bis.
138
Ibid, Art 41(2); ie should they overlap with the subject matter of these grounds (XE
Kramer, in Dickinson and Lein, supra n 2, para 13.216; von Hein, supra n 2, 110);
Domej, supra n 2, 514, more generally excludes the applicability of grounds for refusal
under national law – whether overlapping with the Recast or not – should they be confined
to the refusal of foreign judgments only.
139
Art 52 BRI-bis. An actual delineation between substantive and procedural grounds would
have been welcome (Hay, supra n 2, 6).
140
As per eg Recital 30 Maintenance Reg, listing “the debtor’s discharge of his debt at the
time of enforcement or the unattachable nature of certain assets”.
141
As per eg Art 21 Maintenance Reg, allowing for a refusal of enforcement if the action is
time-barred “either under the law of the Member State of origin or under the law of the
Member State of enforcement, whichever provides for the longer limitation period”;
compare Magnus and Mankowski, supra n 83, 3–4.
The procedure for the refusal application is otherwise governed by national
law.142 Member States had the obligation to designate the competent court
under Article 75(a) BRI-bis by 10 January 2014,143 and predominantly opted
for entrusting the review of the Regulation’s grounds for refusal to first-
instance courts which ordinarily address actions against enforcement under
national law. This solution was advocated by parts of the literature,144
suggesting that the functional and temporal proximity of such courts to the
enforcement procedure would provide for a more efficient remedy.145 The argu-
ment of proximity to enforcement is however not particularly supported by the
Recast, which provides that the procedure of the application for refusal of
enforcement be also used for the refusal of recognition146 or, with reversed
pleas, for the standalone recognition of a judgment,147 both of which may
very well involve judgments that have no enforceable content or for which
no enforcement is (yet) sought.148 This is why, despite the recognition pro-
visions generally referring to the procedure for refusal of enforcement, some
Member States have allocated separate jurisdictions for the purpose of standa-
lone recognition or refusal thereof on the one hand, and refusal of enforcement
on the other.149
An alternative solution would have been to lodge the application at the higher
court that ruled on an exequatur appeal under Article 43 BRI150 and thereby partly
maintain the system established under Brussels I: proponents of this
option invoked the expertise and case law quality of higher courts in issues of
142
Art 47(2) BRI-bis.
143
The designated courts can be found in the European Judicial Atlas in civil matters:
https://e-justice.europa.eu/content_brussels_i_regulation_recast-350-en.do (accessed on
18 June 2015).
144
Cuniberti and Rueda, ibid, 309–10; C Kessedjian, “Le Règlement « Bruxelles I révisé »:
Much ado about . . . what?” (2013) 23(3) Europe 5, 9 para 32; Markus, supra n 60, 766;
Nuyts, supra n 2, 89.
145
Markus, supra n 60, 762–63, 766–67, who advocates the competence of lower courts for
all available grounds for refusal, though in the context of the Commission proposal, where
more delicate grounds like public policy were not yet reintegrated.
146
Art 45(4) BRI-bis.
147
Ibid, Art 36(2).
148
See Geimer and Schütze, supra n 73, Art 33 BRI para 101, and Geimer, supra n 123, 179
on the inadequacy of the “place of enforcement” as local jurisdiction for recognition
matters.
149
Eg in England (infra n 174), Finland, France, Greece, Latvia, and Poland. However, both
applications on recognition (standalone recognition under Art 45(4) BRI-bis and refusal of
recognition under Art 36(2) BRI-bis) must be lodged at the same court due to the identity
of the matter in dispute (R Geimer, “Das Anerkennungsregime der neuen Brüssel I-Verord-
nung (EU) Nr 1215/2012”, in H Fitz and others (eds), Festschrift für Hellwig Torggler
(Vienna, Österreich, 2013), 311, 322).
150
The Commission proposal specifically granted jurisdiction to these higher courts for the
remedy against enforcement pursuant to Art 46 CP (Annex III CP).
234 P. Hovaguimian
international law.151 While this solution was in principle compatible with the
Recast,152 the possibility to invoke national grounds for refusal both at the
higher and lower courts153 would have created, compared with the challenge of
a purely domestic judgment, an additional jurisdiction to invoke such grounds,
and thus potentially infringe on the EU’s principle of equivalence.154
(b) Changes in the debtor’s rights

In the context of the debtor’s right of defence and asset protection, some amend-
ments are directly set out by the Recast. This includes the new requirement that a
debtor domiciled outside the state of origin be additionally provided a translation
of the judgment – upon request and if not already served – into either a language he
or she understands or an official language of his or her domicile, pending which no
enforcement measures beyond protective measures may be taken.155 The Recast
also accelerates the enforcement procedure by making the (unconditionally
151
Domej, supra n 2, 513–14; Hess, supra n 119, § 3 para 30 fn 148; id, “Die Reform der
EuGVVO und die Zukunft des Europäischen Zivilprozessrechts” [2011] Praxis des Inter-
nationalen Verfahrensrechts (IPRax) 125, 129; Schlosser, supra n 112, 104; generally sup-
portive: von Hein, supra n 2, 110 fn 237; contra Markus, supra n 60, 765. It should be noted
that the review of grounds for refusal is not an exclusive competence of higher courts: any
court can do so within a procedure of incidental recognition.
152
Albeit depriving Art 47(3)(2) BRI-bis of its practical meaning, since the (higher) court
addressed by the application could then never be the court that, as the case may be,
initiated enforcement and thereby dispenses with providing the documents it already
possessed.
153
Assuming that ordinary actions against the enforcement of a foreign judgment (eg on the
grounds of prior compliance or unattachable assets) may still be submitted to lower courts,
since (a) the higher courts would otherwise become congested with all the actions formerly
handled at the lower level, and (b) should the creditor have already successfully applied for
standalone recognition, the debtor would be otherwise barred from using the refusal appli-
cation again, precluding any procedure to contest eg a subsequent compliance with the
judgment.
154
Hess, supra n 119, § 6 para 231; id, “Die Zulässigkeit materiellrechtlicher Einwendun-
gen im Vollstreckbarerklärungsverfahren nach Art. 43 ff. EuGVO” [2008] Praxis des Inter-
nationalen Verfahrensrechts (IPRax) 25, 28.
155
Art 43(2) BRI-bis, a provision inspired by Art 8 of the Small Claims Reg. Noting that this
will likely lead to dilatory tactics by the debtor: M Ángeles Rodríguez Vázquez, “Una
nueva fórmula para la supresión del exequátur en la reforma del reglamento Bruselas I”
(2014) 6 Cuadernos de Derecho Transnacional 330, 345; J Fitchen, “Enforcement of
Civil and Commercial Judgments under the New Brussels Ia Regulation (Regulation
1215/2012)” (2015) 26(4) International Company and Commercial Law Review 145,
148 (also emphasising the lack of clarity as to which of the debtor or creditor is required
to arrange and pay for such translation, with unsatisfactory results in either case);
Nielsen, supra n 2, 526. Also critical: Kramer, supra n 138, para 13.241, on the lack of
debtor’s right to request the translation of the certificate. The question of whether the
debtor understands the language in question should be appreciable by the competent enfor-
cement authority itself (Nuyts, supra n 2, 87).
guaranteed156) measures of Article 40 BRI-bis much sooner available than under
Brussels I.157
On the other hand, the Recast now refers to national law or to the court’s dis-
cretion on matters previously set in the Regulation itself, decreasing the uniformity
of cross-border enforcement conditions between Member States. The Recast
namely fails to mention how long prior to the first enforcement measure the
court of origin’s certificate should be served on the debtor, ie how long the
grace period between service and (definitive) enforcement pursuant to Article
43(1) BRI-bis should be.158 Recital 32 refers to “a reasonable time before the
first enforcement measure” without further elaboration.159 Incidentally, the root
of Article 43(1) BRI-bis can be traced to Professor Dickinson’s review of the Com-
mission draft, where he suggested adding the requirement of prior service 7 or 14
days before enforcement160 – an amendment that was integrated verbatim in the
parliamentary Draft Report161 but ultimately reduced to its current wording.
The grace period thus reverts to national enforcement provisions on prior
notice, which may initiate enforcement proceedings too early for the debtor to
prepare an adequate defence and prevent irreversible enforcement measures
being taken against his or her property.162 And where Brussels I required
service of the exequatur decision, which typically indicated the available remedies
156
Art 40 BRI-bis even reinforces the wording of Art 47(2) BRI by adding that the creditor’s
power of direct access arises “by operation of law”. The idea that the Recast “retains the
essence” of Art 47 (Pålsson, in Magnus and Mankowski, supra n 86, Art 47 BRI para 3)
is thus accurate, but only with regard to said Art 47(2): the essence of Art 47(3), on the
other hand, is not necessarily maintained (see infra text to nn 159–66).
157
A reasonable trade-off given the reversibility of protective measures and the necessity to
ensure that the debtor does not take actions to frustrate the effects of protective measures
after being warned.
158
See also the lack of such indication in eg the English CPR 74.9(1), which merely refers
back to Art 43 BRI-bis.
159
Nuyts, supra n 2, 85, considers that this period depends on both the type of measures
requested and the “circumstances” in question.
160
Dickinson, supra n 23, 268, later fleshed out as follows: “no measures of enforcement shall
be taken unless either: (a) the applicant has, not less than [7 or 14] days before the date upon
which the enforcement measure is sought, served on the party against whom the enforcement
measures is sought a copy of the certificate referred to in Article 42(1) or (2) in accordance
with the requirements of Regulation (EC) No 1393/2007, where applicable; or (b) it is
impracticable to serve judicial documents on the party against whom enforcement measures
are sought, and the applicant has taken reasonable steps to notify the contents of the judgment
to the party against whom enforcement measures are sought”, available at http://papers.ssrn.
com/sol3/papers.cfm?abstract_id=1930712 (accessed 18 June 2015).
161
European Parliament Committee on Legal Affairs, “Draft Report on the proposal for a
regulation of the European Parliament and of the Council on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (recast)” (2010/0383
(COD)), amendment 114.
162
See Kramer, supra n 138, para 13.238, noting that domestic provisions on prior notice
may be ill-suited in a cross-border context, especially in case of eg default judgments.
236 P. Hovaguimian
and time limits under domestic law, the Recast merely requires the creditor to
evidence the (one-time) service of the court of origin’s certificate: Article 43(1)
BRI-bis therefore still leaves the debtor unaware of where in the EU the creditor
will seek enforcement,163 let alone how to object.164
Moreover, even if the debtor does contest the enforcement before the end of
such grace period, the mandatory limitation to protective measures by law under
Article 47(3) BRI has been replaced by a discretionary stay or limitation of
enforcement proceedings by the court addressed with the refusal application
or the subsequent appeals.165 This further lack of uniformity leaves the
debtor’s assets in different levels of vulnerability depending on each state’s judi-
cial practice. Overall, an unacceptable judgment would be able to trigger irre-
versible enforcement measures against a debtor’s property mere days after
service of the certificate in some states – and only at the end of a third-instance
appeal in others.166
The debtor’s inability to obtain a stay of enforcement (or a decision on the
grounds for refusal) early enough due to a short grace period could be partly alle-
viated if the debtor is able to file an application for refusal preventively, ie before
the creditor starts to seek enforcement and trigger the service of the certificate.
The wording of Article 46 BRI-bis does not appear to support such an option
prima facie. The Commission proposal mentioned a remedy to lodge at the
“court of the Member State of enforcement”,167 which could have included an
abstract, prospective Member State where enforcement will be sought, thereby
allowing preventive applications.168 The final wording of Article 46 BRI-bis
however designates as legitimated party the “person against whom enforcement is
sought”,169 supporting the requirement of current enforcement. Nevertheless, appli-
cations for refusal of recognition,170 while referring to the procedure of Articles
46–51 BRI-bis,171 designate “any interested party” as legitimated:172 this would
163
Ibid.
164
Kramer, supra n 74, 369.
165
Art 44(1) and Recital 31 BRI-bis; a departure from the 2010 parliamentary resolution
(European Parliament, “Resolution of 7 September 2010 on the implementation and
review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (2009/2140(INI))”, [2011] OJ
C308E/06, Pt 4), calling upon the Commission to ensure that no irreversible enforcement
step may be taken “until the time-limit for applying for the exceptional procedure has
expired or the exceptional procedure has been concluded”.
166
Infra text to nn 176–79.
167
Art 46(2) CP.
168
Schramm, supra n 54, 86.
169
With equivalent wording in virtually all other languages (usually “the person against
whom enforcement is requested”). Only the German wording confines itself to “the debtor”.
170
Art 45(1) BRI-bis.
171
Ibid, Art 45(4).
172
See Fitchen, supra n 74, paras 13.259–67, on the potentially broad meaning of “any
interested party”.
allow the debtor to fend off an impending enforcement procedure through the (vir-
tually equivalent) preventive application for refusal of recognition under Article 45
BRI-bis.173 However, the Regulation thereby enables an overzealous debtor to file
such applications in every state where assets are at risk, even where the creditor
never intended to enforce his or her claims.174 Such needless proceedings were
less likely to be initiated under the previous regime, as the admissibility of a preven-
tive negative declaratory action under Brussels I was starkly disputed – namely as to
whether such action could be lodged using the procedure of Articles 38–52 BRI or, if
at all, under the conditions set out by national law.175
(c) Changes in the creditor’s rights

The divergences in debtor protection across Member States entail corresponding
divergences in enforcement efficiency: depending on the state addressed, the credi-
tor may be burdened by particularly long grace periods under Article 43 BRI-bis176
(besides those extended by dilatory translation requests177) and limitations of enfor-
cement proceedings by any court addressed with the refusal application.178 While
173
Cadet, supra n 2, 222.
174
See eg the English CPR 74.7A(1)(b), providing that an application for refusal of recog-
nition or enforcement be submitted “to the court in which the judgment is being enforced or,
if the judgment debtor is not aware of any proceedings relating to enforcement, the High
Court” (emphasis added).
175
Supporting an action under the Brussels Regulation: H Dörner, in I Saenger (ed), Zivil-
prozessordnung: FamFG, Europäisches Verfahrensrecht: Handkommentar (Baden-Baden,
Nomos, 5th edn, 2013), Art 33 BRI para 12; Geimer and Schütze, supra n 73, Art 38 BRI
para 34, Art 33 BRI para 85; Mäsch, supra n 45, Art 33 BRI para 17; Schlosser, supra n 91,
Art 33 BRI para 4; supporting an action only under national law: Bucher, supra n 85, Art 33
LC para 4; Gottwald, supra n 78, Art 33 BRI para 13; Jennissen, supra n 81, Art 33 BRI para
3; Kodek, supra n 86, Art 33 BRI paras 11–13; Kropholler and von Hein, supra n 73, Art 33
BRI para 7; S Leible, in Rauscher, supra n 45, Art 33 BRI para 13; Staehelin and Bopp,
supra n 76, Art 38 LC para 43; Tschauner, supra n 78, Art 33 BRI para 18; Walther,
supra n 86, Art 33 LC para 17; rejecting all such actions: Oberhammer, supra n 38, Art
33 BRI para 6. If allowed under national law only, the action would be more constrained,
since it may in principle only be lodged at the creditor’s domicile pursuant to Art 2 BRI
(Mankowski, supra n 45, Art 38 BRI para 35; less restrictive: Hofmann and Kunz, supra
n 44, Art 38 LC para 399) and may be subject to stricter requirements of legitimated interest
than under Brussels I (see eg Gottwald, supra n 78, Art 33 BRI para 12).
176
Such grace periods preclude all enforcement measures except protective ones (Art 43(3)
BRI-bis). Thus provisional non-protective enforcement measures (eg the French référé-pro-
vision), previously foreseen under Art 47(1) BRI and available regardless of the grace
period (Staehelin, supra n 44, Art 47 LC para 14; contra Hofmann and Kunz, supra n
44, Art 47 LC para 31), would appear now to be precluded as well.
177
See supra n 155.
178
In the absence of additional guidance, some are concerned that individual states will use
such stay of proceedings almost automatically (Cuniberti and Rueda, supra n 66, 315) or
even impose a suspension of enforcement de lege (Timmer, supra n 74, 140). The
238 P. Hovaguimian
some Member States already (controversially179) allowed their second appeal courts
to limit enforcement proceedings under Brussels I, this discretion is now explicitly
granted to all courts addressed – a limitation that may even stretch for the length of
three contradictory proceedings, should a Member State designate a court for the
purpose of Article 50 BRI-bis. Any combination of such obstacles may postpone
the satisfaction of the creditor’s claim well beyond the ordinary delay that was
inherent to the debtor’s protection under Brussels I.
Beyond the limitation or stay of enforcement, the Recast also leaves out any
indication on the time limit to invoke the grounds for refusal provided in the Regu-
lation – unlike grounds for refusal under national law, which may only be invoked
within the time limits laid down in that law.180 Brussels I was straightforward in that
context, as the debtor simply cannot file his or her appeal past the one or two-month
time period set out in Article 43(5) BRI. The time limit for the refusal application
in Brussels I bis is thus determined by national law,181 leaving the ultimate fate
of a claim undetermined for potentially much longer than the previous regime
allowed.
Finally, the abrogation of Article 47(3) BRI, may have unintended conse-
quences for the creditor’s right to protective measures under the Recast. Article
47(3) BRI prescribes a limitation of enforcement proceedings during the time
period allotted to file an appeal under Article 43(5) BRI or until such appeal has
been determined. As mentioned,182 the CJEU stated in its Capelloni ruling that
national law must not frustrate the “power to proceed to any protective measures”
prescribed in Article 47(2) BRI,183 thus prohibiting any post-exequatur require-
ment of judicial authorisation for protective measures. Interestingly, the CJEU
further stated that the time period specified to file an appeal, during which “no
measures of enforcement may be taken other than protective measures”,184
entailed not only the limitation of enforcement to such measures, but also the
availability of such measures during that time, thus superseding any provision
of national law setting shorter time limits for the creditor to enforce protective
former authors consider that the Recast should have removed any such discretion altogether
and subject limitations of enforcement to a strict test for the debtor to show eg unsustainable
harm if the enforcement was maintained – akin to the exceptional suspension of provisional
enforceability under Art 524 French Code of Civil Procedure. Fitchen, supra n 155, 150,
suggests that the Recast’s pro-enforcement policy will nonetheless lead enforcement auth-
orities to require particularly compelling arguments before granting a stay.
179
Supra text to nn 43–45.
180
Recital 30 BRI-bis.
181
Art 47(2) BRI-bis. Critical on the resulting lack of transparency for the debtor: Domej,
supra n 2, 518.
182
Supra n 39.
183
Or rather in its predecessor, Art 39(2) Brussels Convention 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters, [1972] OJ L299/32.
184
Ibid, Art 39(1), transferred to Art 47(3) BRI.
measures.185 In other words, the exclusion of national law to guarantee the avail-
ability of protective measures during a certain time hinges on the wording of
Article 47(3) BRI, not Article 47(2).186 Article 40 BRI-bis only inherited the
content of Article 47(2), while Article 47(3) finds no equivalent provision. It
appears therefore that, as the guarantee of protective measures during a specified
period has no more legal basis in the Recast, Member States may now freely
impose shorter time limits for a creditor to enforce protective measures than
was ensured under Brussels I.
D. Mission accomplished? A look back on the reform’s objectives

Proposals to reform the Brussels regime have been regarded critically given the
success of its well-functioning system and an unparalleled influence on the legal
practice.187 As the exequatur procedure was presented as the main shortcoming
of the Brussels I Regulation in the context of recognition and enforcement,188 the
following sections review the different rationales invoked in support of its abolition
– sometimes based on questionable premises – and whether these objectives are ulti-
mately fulfilled by the Recast.
1. Costs and efficiency in the EU single market

(a) Basis
The abolition of exequatur was first based on an economic rationale: the
Commission stated that “it is difficult to justify, in an internal market without
frontiers, that citizens and businesses have to undergo the expenses in terms of
185
Case 119/84, supra n 39, paras 27–28: “It must be stated . . . that the reply to that question
is to be inferred from the very wording of the first paragraph of Article 39. Since the Con-
vention provides that ‘during the time specified for an appeal pursuant to Article 36 and
until any such appeal has been determined, no measures of enforcement may be taken
other than protective measures’, the right to proceed with the measures in question
cannot be restricted in time by the application of national measures prescribing a shorter
period.”
186
Also referring to Art 47(3) as superseding shorter availability under national law:
Althammer, supra n 45, Art 47 BRI para 13; Kropholler and von Hein, supra n 73, Art
47 BRI para 11; Plutschow, supra n 73, Art 47 LC para 10; Mankowski, supra n 45, Art
47 BRI para 17; Pörnbacher, supra n 45, Art 47 BRI para 18; citing Capelloni but referring
to 47(2) rather than 47(3) in that context: Gottwald, supra n 78, Art 47 BRI para 6; Mäsch,
supra n 45, Art 47 BRI para 8.
187
Dickinson, supra n 23, 248; P Mankowski, “Die Brüssel I-VO vor der Reform” (2010) 1
Interdisziplinäre Studien zur Komparatistik und zum Kollisionsrecht 31; Magnus and
Mankowski, supra n 83, 2. Its influence should however be put into perspective, as an esti-
mated 50% of formerly Brussels I cases now fall under the 2009 Maintenance Regulation
(Hess, supra n 151, 127 fn 36).
188
CP, 3.
240 P. Hovaguimian
costs and time to assert their rights abroad”.189 Those expenses appear
particularly burdensome considering how “applications for declarations of enfor-
ceability are almost always successful and recognition and enforcement
of foreign judgments is very rarely refused”.190 Indeed, the Commission
proposal relied inter alia on two studies pertaining to the costs, duration and
success rate of exequatur proceedings:191 the CSES Report192 and the Heidelberg
Report.
According to the Heidelberg Report, while exequatur proceedings across
Member States last two weeks on average (excluding the preparation time to
collect the necessary documents), their maximum duration may span from mere
days or even hours (Luxembourg, Hungary) to as long as six or seven months
(Estonia, Greece).193 Further, the study found that declarations of enforceability
are appealed in only 1% to 5% of the cases.194
The CSES Report documented 9,922 exequatur cases across Member States in
2009, of which 93% were ultimately successful.195 The CSES then estimated the
average total costs of a straightforward exequatur case – ie without appeal – at
€2,208 (for eg court fees, legal fees, service and translation expenses)196 and
€12,791 in the complex, appealed cases.197 Setting the ratio of simple-to-complex
cases at 75%, the CSES thus estimated a total cost for all exequatur proceedings of
nearly €48 million.198
The CSES Report further surveyed business and consumer organisations on
the impact of an abolition of exequatur. It found that a total of 66.1% of respon-
dents were generally more inclined199 to engage in (more) cross-border activities if
the enforcement of a judgment from one Member State to the other did not require
additional procedures.200
189
European Commission, “Green Paper on the Review of Council Regulation (EC) No 44/
2001 on jurisdiction and the recognition and enforcement of judgments in civil and com-
mercial matters”, COM(2009) 175 final, 2.
190
Ibid.
191
European Commission, “Impact Assessment accompanying the Commission Proposal”
(SEC(2010) 1547 final), 6–7.
192
Centre for Strategy & Evaluation Services (CSES), Data Collection and Impact Analysis
– Certain Aspects of a Possible Revision of Council Regulation No 44/2001 on Jurisdiction
and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Final
Report (December 2010), available at http://ec.europa.eu/justice/civil/files/study_cses_
brussels_i_final_17_12_10_en.pdf (accessed 18 June 2015), hereinafter “CSES Report”.
193
194
Ibid, para 506.
195
CSES Report, 37.
196
Ibid, 43.
197
Ibid, 45.
198
Ibid.
199
39.4% are “a lot more inclined” and 26.7% “slightly more inclined”.
200
CSES Report, 63.
High costs and long waits associated with exequatur proceedings are likely to
deter creditors from cross-border enforcement.201 Some even see it as a “contra-
diction in itself if in an internal market and in a single area of law judgments
could not circulate freely as within one member state”.202 Yet the reasoning of
abolishing exequatur to encourage a more cost-efficient circulation of judgments
in the EU’s single market, as proposed by the Commission, was nonetheless
subject to criticism, for two reasons.
First, invoking the EU’s single market to justify the free circulation of judg-
ments was rightly questioned in light of other jurisdictions benefiting from argu-
ably more integrated markets – such as the US or Canada – whose laws provide no
such unconditional recognition of judgments between sister states.203 Besides, the
EU could hardly justify abrogating controls to guarantee the free movement of
judgments within its single market when even the circulation of goods, persons,
services and capital are all potentially subject to unilateral controls and limitations
by the Member States.204
The second and more important reservation pertains to the interpretation and
methodology of the material invoked in support of the reform, and the conclusions
drawn from it by the Commission.
Indeed, some rightly called into question the numbers resulting from the evalu-
ation of exequatur cases and costs in the CSES Report,205 in part due to the study’s
extrapolation of the data collected in eight Member States onto the remaining 19 –
since the CSES was unable to access exequatur records in most surveyed
countries.206 The determination of costs, in particular, was subject to criticism
for its arbitrary parameters or the substantial number of estimates based on
201
Müller, supra n 88, 341; somewhat contra Schlosser, supra n 112, 104, and Wagner and
Beckmann, supra n 74, 46, who suggest that the exequatur costs, at least in Germany, were
no deterrent for a creditor seeking relief in matters worth €50,000 on average.
202
Magnus and Mankowski, supra n 83, 2.
203
Schlosser, supra n 112, 102–3; Schramm, supra n 54, 65; see also M De Cristofaro, “The
Abolition of Exequatur Proceedings: Speeding up the Free Movement of Judgments while
Preserving the Rights of the Defense”, in F Pocar, I Viarengo and F Villata (eds), Recasting
Brussels I: proceedings of the conference held at the University of Milan on November 25–
26 2011 (Padua, CEDAM, 2012), 353, 355.
204
Dickinson, supra n 23, 264, and H Gaudemet-Tallon, “La refonte du règlement Bruxelles
I”, in M Douchy-Oudot and E Guinchard (eds), La justice civile européenne en marche
(Paris, Dalloz, 2012), 21, 28, both mentioning public policy exceptions under the TFEU.
205
Dickinson, supra n 23, 254 fn 52; XE Kramer, “Cross-border Enforcement in the EU:
Mutual Trust versus Fair Trial? Towards Principles of European Civil Procedure” (2011)
2 International Journal of Procedural Law 202, 216; Stadler, supra n 74, 952 fn 5.
206
CSES Report, 145–6; critical on said extrapolation: Dickinson, supra n 23, 254 fn 52;
Schramm, supra n 54, 62. On a similar note, the Heidelberg Report is treated with
caution for its lack of data from new Member States (XE Kramer, “Harmonisation of
Civil Procedure and the Interaction with Private International Law”, in XE Kramer and
CH van Rhee (eds), Civil Litigation in a Globalising World (The Hague, Asser, 2012),
121, 135 fn 69 in fine).
242 P. Hovaguimian
arguably vague data samples, if any.207 As for the inclination of business and con-
sumer organisations to engage in more cross-border activities, it hardly constituted
a meaningful endorsement for the abolition of exequatur given both the small
amount of businesses surveyed208 and the fact that these organisations answered
even more favourably to the option of using written or online procedures that
would dispense with litigating abroad in the first place.209
Beyond the interpretation and methodology of the studies that supported the
Commission’s impact assessment, many voiced their reservations on choosing
the abolition of exequatur as the most appropriate measure to solve the problems
invoked by the Commission. Given that the Heidelberg Report itself considers
exequatur proceedings across the EU to show “a considerable efficiency”
overall210 – with overlong waits being exceptional – one wonders whether the
residual issues of expenses and delays could not have been remedied by other
measures. Long delays could have been solved by EU-wide exequatur dead-
lines,211 and high expenses for the creditor through harmonised caps on costs212
or a loser-pays rule.213
(b) Implementation in Brussels I bis

As shown above, the Recast opens the door to increased divergences across the EU
with regard to the balance between the party’s opposing interests.214 The appre-
hension215 that the abolition of exequatur would lead to 27 enforcement pro-
cedures instead of a (partly) harmonised one is thus reasonably grounded,
though it should be noted that in practice, the previous regime already showed
stark divergences across Member States despite – and to some extent against
the wording of – the Regulation’s harmonised requirements, eg the reported prac-
tice of some exequatur courts to serve the creditor’s application upon the debtor
207
Timmer, supra n 74, 143, who further cites cases where, even when data were available,
the CSES used the highest rate in a spectrum of fees rather than the average (although Dick-
inson, supra n 23, 254 fn 52, suggests that the fee estimates were already conservative).
208
Timmer, supra n 74, 144–45.
209
Dickinson, supra n 23, 255 fn 53, referring to the results in the CSES Report, Appendix
E Pt 10.
210
211
Kramer, supra n 205, 216; Timmer, supra n 74, 145; Wagner and Beckmann, supra n 74,
46, who also cite the more flexible solution of Art 11(3) Council Regulation (EC) No 2201/
2003, [2003] OJ L338/1.
212
Kramer, ibid; Wagner and Beckmann, ibid.
213
As was laid down in Art 46(8) CP, although ultimately discarded. The rule was wel-
comed by Cuniberti and Rueda, supra n 66, 314–15; more reserved: De Cristofaro,
supra n 203, 380 fn 71, who considers that the rule should have been suspended when
the (losing) debtor gave the opportunity for a serious issue to be tried and clarified by
case law.
214
Supra, sections C.3.(b)–(c).
215
before rendering its judgment,216 or the legislative extension of the protection
under Article 47(3) BRI beyond the first appeal.217
More generally, the new Regulation allows Member States to hinder enforce-
ment past the maximum protection afforded to the debtor in the previous
regime.218 This does not uphold the increase in efficiency advanced in support
of the reform. On the other hand, the concerns over additional delays at the
stage of judgment import or adaptation due to untrained enforcement agents are
now largely moot.219
Finally, the estimated impact on costs previously associated with exequatur
proceedings must be considered in light of the amendments examined above.
For the sake of the argument, this section uses the CSES estimations, flawed as
they may be.220 The CSES sets the ratio of simple-to-complex cases at 75%.
Therefore, of the €48 million of total exequatur costs in the EU, only a third
(€16 million) accounts for the costs of simple cases.221 The remaining €32
million are caused by the complex, appealed cases.222
According to the CSES,223 the average €2,208 costs of simple cases consist in
€53 in court fees, €1,205 in lawyer fees, and €850 in translation fees. The new
Brussels regime would eliminate the (exequatur) court fees, which merely
account for €53 out of €2,208. Regarding the translation fees, while the courts
can now only require a translation of the judgment in absolute necessity, the
debtor must nonetheless have been served – in some circumstances – a translated
version before proper enforcement can proceed.224 The lack of domicile or repre-
sentative ad litem in the enforcement state is no longer an obstacle for the creditor,
who may then dispense with legal counsel and directly submit his or her claim.
While this would potentially decrease legal fees, most creditors are hardly
willing to renounce legal services in order to carry out by themselves the investi-
gation of competent authorities, appropriate documents to submit, and intricacies
of procedural law in a state they are not domiciled in.225 Overall, one could argu-
ably expect at least half of the total costs of simple cases to remain in place in the
new regime – amounting, for this section’s purpose, to €1,104.
216
Oberhammer, supra n 54, 198.
217
As it can result from eg § 84a(2) Austrian Enforcement Regulation (Exekutionsordnung).
See supra n 43 on the surrounding controversy. The limitation of enforcement upon request
by the second appeal court is also disputed (supra text to nn 44–45).
218
219
Supra text to nn 104–8 and 131–32.
220
221
0.75 × 9,922 × € 2,208.
222
0.25 × 9,922 × € 12,791.
223
CSES Report, 147.
224
See supra n 155 on the potential for dilatory tactics.
225
244 P. Hovaguimian
As for the complex cases, the CSES Report226 breaks down its €12,791 costs
into €3,000 in translation costs, and the remaining €9,791 in court and legal fees.
The complex cases account for an appeal by the debtor – corresponding to an
application for refusal of enforcement and its subsequent appeals under the
Recast – which would then require the very same expenses in court fees, legal
fees, and possibly translation of the judgment – either for the court to review
the grounds for refusal or, even in uncontested cases, for the debtor to be
served with. The average costs of complex cases would thus hardly change.227
Using the CSES methodology – and even disregarding additional costs caused
by the Recast’s amendments228 – the new Brussels regime would therefore appear
to entail a total “exequatur cost” of nearly €40 million.229 This is an improvement
over the estimated €48 million of the previous regime. However, it stands to reason
that the Commission’s original forecast, stating that the abolition of exequatur
would “[allow] EU companies and citizens to save a major part of the current
costs of almost €48 Mio/year”,230 has hardly been fulfilled by the reform of the
Brussels regime.
2. The “mutual trust” rationale

(a) Basis
The second incentive for the abolition of exequatur was political: the Commis-
sion’s explanatory memorandum stated231 that “[t]oday, judicial cooperation and
the level of trust among Member States has reached a degree of maturity which
permits the move towards a simpler, less costly, and more automatic system of cir-
culation of judgments, removing the existing formalities among Member States.”
The Recast itself further provides that “[m]utual trust in the administration of
justice in the Union justifies the principle that judgments given in a Member
State should be recognised in all Member States without the need for any
226
CSES Report, 147.
227
Cuniberti and Rueda, supra n 66, 311; Kramer, supra n 205, 216.
228
Eg higher fees imposed by the court of origin for the issuance of the more complex cer-
tificate (Kessedjian, supra n 144, 8 para 21; see also Beraudo, supra n 2, 758, on the
increased workload of the court’s staff) or increased fees of enforcement authorities
caused by the additional work previously carried out by the exequatur court (Kramer,
supra n 74, 368; Timmer, supra n 74, 145), for example in reviewing and authenticating
the judgment as well as its complex certificate, examining whether the judgment falls
within the scope of the Regulation, adapting measures if necessary, etc.
229
0.75×9, 922 x €1, 104 + 0.25×9, 922 x €12, 791.
230
European Commission, “Summary of the Impact Assessment accompanying the Com-
mission Proposal” (SEC(2010) 1548 final), Pt 2.1.4. (emphasis added). The CSES
Report, 61, even predicted that abolishing exequatur would create potential savings of
“€22m to €126m”, on the somewhat dubious assumption that all possible costs of both
straightforward and complex cases would then simply vanish in their entirety.
231
CP, 6.
special procedure”.232 Indeed, the legislator even refrains from designating such
judgments as “foreign” throughout the Recast.
It should be noted that the case for mutual trust was partly undermined in the
original Commission proposal, which upheld the entire exequatur procedure,
along with all grounds for refusal, for cases of personality rights or violation of
privacy233 and for collective redress cases.234 The Commission justified both
exceptions stating that “[t]hese cases are particularly sensitive and Member
States have adopted diverging approaches on how to ensure compliance with the
various fundamental rights affected”.235 Not only were those justifications hardly
reconcilable with the Commission’s pleading of mutual trust,236 but having the pro-
posal draw the line only at defamation, privacy and collective redress issues also
seemed highly arbitrary,237 considering the many other cases where sensitive
policy considerations or diverging national approaches could equally support main-
taining the exequatur and its grounds for refusal in such matters.238
More broadly, the “mutual trust” rationale was heavily criticised during
the early drafts of the new regime, as many considered that further
harmonisation and safeguards in civil law and procedure within the EU were necess-
ary for the premise of mutual trust to become a reality.239 The EU’s continuous
emphasis on trusting the administration of justice in other Member States was
especially challenged in light of cases showing judicial corruption240 and other
232
Recital 26 BRI-bis.
233
Art 37(3)(a) CP.
234
Ibid, Art 37(3)(b).
235
Ibid, 6–7.
236
U Magnus and P Mankowski, “The Proposal for the Reform of Brussels I – Brussels Ibis
ante portas” (2011) 110 Zeitschrift für Vergleichende Rechtswissenschaft 252, 295.
237
Cuniberti and Rueda, supra n 66, 313–4; Dickinson, supra n 23, 261–4; XE Kramer,
“Abolition of exequatur under the Brussels I Regulation: effecting and protecting rights
in the European judicial area” (2011) 4 Nederlands Internationaal Privaatrecht 633, 636.
238
The defamation and privacy cases could thus have been supplemented by the equally
sensitive matters of eg medical ethics or punitive damages (Dickinson, ibid, 261–2)
while the collective redress cases could have been supplemented by virtually all aspects
of civil procedure, which are just as divergent in their national approaches (ibid, 263–64).
239
Arenas García, supra n 60, 373; Gaudemet-Tallon, supra n 204, 29; Kramer, supra n
205, 230; Oberhammer, supra n 54, 201; noting the lack of EU harmonisation but more
optimistic: B Hess, “Mutual Recognition in the European Law of Civil Procedure”
(2012) 111 Zeitschrift für Vergleichende Rechtswissenschaft 21, 30. See also further the
reservations of C Althammer and M Löhnig, “Zwischen Realität und Utopie: Der Ver-
trauensgrundsatz in der Rechtsprechung des EuGH zum europäischen Zivilprozessrecht”
[2004] Zeitschrift für Zivilprozess International 23, 35–36, in the context of earlier CJEU
decisions grounded in the alleged mutual trust between Member States.
240
Magnus and Mankowski, supra n 83, 3; Mankowski, supra n 187, 34–35; H Schack,
“Die Entwicklung des europäischen internationalen Zivilverfahrensrechts – aktuelle Bes-
tandsaufnahme und Kritik”, in R Stürner and others (eds), Festschrift für Dieter Leipold
zum 70. Geburtstag (Tübingen, Mohr Siebeck, 2009), 317, 333. See especially the
figures published in the Commission’s EU Justice Scoreboard on perceived judicial
246 P. Hovaguimian
gross infringements of fundamental rights across those very states.241 Indeed, the
numerous violations of human rights within the EU should indicate that the sub-
scription to the European Convention on Human Rights by Member States does
not render a review of their administration of justice redundant.242 If the creditor’s
right to judicial enforcement can derive from Article 6 of said Convention,243 it is
generally accepted that such right is not immune to restrictions through other fun-
damental rights, particularly the debtor’s right of defence.244 Abrogating all con-
trols of a foreign judgment can even amount to a violation of the Convention.245
One quickly notices that the scepticism towards the mutual trust principle
does not pertain to the procedure of exequatur itself as much as to the
grounds for refusal available to the debtor. Indeed, the Commission proposal
originally threatened to abolish not only the procedure of exequatur, but
also some of the grounds for refusal, including (substantive246) public
policy.247 This prompted many to address the public policy issue248 by condemning
independence across Member States (COM(2013) 160 final; COM(2014) 155 final; COM
(2015) 116 final).
241
Cuniberti and Rueda, supra n 66, 296; Magnus and Mankowski, ibid; Schack, ibid;
Schlosser, supra n 112, 104; Timmer, supra n 74, 136; Wagner and Beckmann, supra n
74, 46, further citing cum grano salis the 2,400 violations of Art 6 of the European Con-
vention on Human Rights filed from 2006 to 2008.
242
Cuniberti and Rueda, ibid; De Cristofaro, supra n 203, 375–76
243
ECHR, Hornsby v Greece, Application No 18357/91, 19 March 1997, para 45. That this
ruling implicitly protects the free circulation of judgments across States is however far from
self-evident (see in particular the critical analysis of M López de Tejada, La disparition de
l’exequatur dans l’espace judiciaire européen (Paris, LGDJ, 2013), 125–41).
244
Cuniberti and Rueda, supra n 66, 294, with further references.
245
Dickinson, supra n 23, 260, on the basis of ECHR, Bosphorus Hava Yolları Turizm ve
Ticaret Anonim Şirketi v Ireland, Application No 45036/98, 30 June 2005, which prescribes
that the presumption of compliance with the Convention within an international organis-
ation can (and must) “be rebutted if . . . the protection of Convention rights was manifestly
deficient” since “the interest of international cooperation would be outweighed by the Con-
vention” (para 156). Schack, supra n 240, 333, deems the Convention violated even when
such controls are effected by the court of origin; see however Case C-491/10 PPU Joseba
Andoni Aguirre Zarraga v Simone Pelz [2010] ECR I-14247 paras 69–70, 74, where mutual
trust allows for an abrogation of controls of fundamental rights in the state of enforcement if
remedies are available in the state of origin. Such state-of-origin-only remedies let the
Bosphorus assumption of compliance with the Convention stand unchallenged (T Schilling,
“Das Exequatur und die EMRK” [2011] Praxis des Internationalen Verfahrensrechts
(IPRax) 31, 35). The Court ultimately confirmed, in the context of Council Reg (EC) No
2201/2003, the lack of Convention infringement by the enforcement state when remedies
are (only) available in the state of origin (ECHR, Povse v Austria, Application No 3890/
11, 18 June 2013, paras 86–87).
246
Whereas a form of “procedural” public policy was maintained through Art 46 CP.
247
An amendment that was already proposed by the Commission when drafting Brussels I
(Art 37a(1) of the Commission’s 1997 proposal, OJ C 33/20 of 31 January 1998).
248
For an overview of the critical literature on the abolition of this ground for refusal see eg
von Hein, supra n 2, 109 fn 218.
the “abolition of exequatur” in a somewhat sweeping sense, as if said ground of
refusal was inextricable from the exequatur procedure itself. However, as has
been shown in the new Regulation, the intermediate procedure of exequatur can
be abolished while allowing the debtor to invoke grounds for refusal in other reme-
dies, such as the application for refusal of enforcement provided in the Recast.249
(b) Implementation in Brussels I bis

Now that the grounds for refusal have all been fully maintained (if not strength-
ened250) in the Recast, concerns over a flawed premise of mutual trust may
seem groundless: critics of the abolition did conceive that very few unacceptable
judgments do not justify maintaining a general exequatur requirement as long as
the free circulation of such judgments can be hindered at the later stage of enfor-
cement.251 Since the enforcement state under the Recast is no less able to reject
judgments violating eg public policy than it was under Brussels I, the Recast
does not appear to relinquish essential controls for the sake of mutual trust.
However, the abolition of exequatur did shift the review of such grounds for
refusal further down the chain of events ultimately leading to definitive enforce-
ment. As mentioned above, an estimated 93% of 9,922 exequatur cases in 2009
were ultimately successful: since the main reasons cited for the 7% exequatur rejec-
tion rate all pertain to the existence of grounds for refusal252 it appears that at least
the major part of the nearly 700 rejected exequatur cases of 2009 were unacceptable
judgments pursuant to Brussels I. As such, the original apprehensions over a ques-
tionable presumption of trust overriding the barriers against unacceptable judg-
ments must now be framed in terms of how far into the enforcement procedure
such judgments should be allowed to circulate in the name of mutual trust.
The Commission stated that the abolition of the exequatur procedure “will be
accompanied by procedural safeguards which ensure that the defendant’s right to
a fair trial and his rights of defence . . . are adequately protected.”253 Yet contrary
to the view that the final Recast offers no noticeable change in debtor protec-
tion,254 this principle is only partly upheld by the revised Regulation: the issue
249
The general confusion around this differentiation also stemmed from the Commission
somewhat blurring the lines in its documents and consultations (Kramer, supra n 74,
346–47).
250
See supra n 30.
251
P Beaumont and E Johnston, “Can Exequatur be Abolished in Brussels I Whilst Retain-
ing a Public Policy Defence?” (2010) 6 Journal of Private International Law 249, 273;
Cuniberti and Rueda, supra n 66, 312; Magnus and Mankowski, supra n 83, 3.
252
CSES Report, 39–40.
253
CP, 6; compare similarly European Council, “The Stockholm Programme – An Open and
Secure Europe Serving and Protecting the Citizens”, [2010] OJ C115/13, Pt 3.1.2.
254
Held by eg Crawford and Carruthers, supra n 2, 94; d’Avout, supra n 2, 1016–7; U Ernst
“Brussels I bis & Co” (2012) 1 Journal of European Consumer and Market Law 189, 191;
von Hein, supra n 2, 111.
248 P. Hovaguimian
of uniformity described above has shown that in some cases, the debtor may
suffer irreversible enforcement measures against his or her assets mere days
after becoming aware of an impending enforcement procedure in that State.
The enforcement proceedings may even persist throughout the duration of the
remedies against enforcement or at least until the court addressed decides to
suspend or limit them. Even where there is potentially strong evidence that the
judgment should not be enforced, which should prompt at least a limitation of
enforcement, the debtor may have had his or her assets already seized and auc-
tioned by the time a court is finally able to review the contents of the translated
judgment and determine the likelihood of grounds for refusal.
Of course, an unacceptable judgment will eventually be declared without
effect in the enforcement state and the corresponding enforcement measures
thereby repealed, their damages compensated, or paid amounts reclaimed. The
question is whether several hundred unacceptable judgments per year should,
even with the safeguard of ultimate compensation, be allowed to circulate and
produce irreversible enforcement measures to an unprecedented extent across
Member States in the name of mutual trust.255 It is submitted here that until
additional harmonisation has reduced the occurrence of such judgments to a
truly negligible amount, the Recast should have guaranteed the suspension of
definitive enforcement measures until a court had at the very least the opportunity
to consider the likelihood of an unacceptable judgment.
E. Alternative models and proposed enhancements

The Commission and the legal literature proposed alternative or improved systems
for the cross-border circulation of judgments. This section reviews them shortly.
The Commission’s original plan consisted in providing the debtor with reme-
dies submitted to three different authorities, two of them in the state of enforce-
ment and one in the state of origin. The competent authority would review any
irreconcilability between judgments,256 the court of the enforcement state would
review infringements on the so-called “fundamental principles underlying the
right to a fair trial”,257 and the competent court in the state of origin would
review default judgments where the defendant could not appropriately arrange
his or her defence.258 This three-pronged system was almost universally criticised
255
See also Dickinson, supra n 23, 266: while the Member States’ national systems of prop-
erty ownership are unprejudiced by the EU Treaties (Art 345 TFEU), the newly automatic
enforcement of judgments on eg land titles situated in the enforcing state may already “cross
the line drawn by this Article”.
256
Art 43 CP; compare the similar Art 21 EEO Reg, Art 22 Small Claims Reg, Art 22
Payment Procedure Reg, and Art 21 Maintenance Reg.
257
Art 46 CP.
258
Ibid, Art 45; compare the similar Art 19 EEO Reg, Art 18 Small Claims Reg, Art 20
Payment Procedure Reg, and Art 19 Maintenance Reg.
for its needless complexity,259 and for shifting one of the remedies into a country
of origin unlikely to overturn its own ruling.260
The proposal’s exclusion of certain subjects from the abolition of exequatur
proved to be arbitrary, as the Commission’s rationale behind the specifically
excluded cases could equally be used to exclude many more.261 Professor von
Hein rather suggested a differential application of the exequatur abolition, not
for delicate subject matters, but for judgments originating from “watch-listed”
Member States known to provide a lower level of legal protection.262 While
tempting when considering the issues of irreversible enforcement measures
discussed above, the implementation of such a list seems, as its proponent
himself acknowledges, hardly realistic – if only for political reasons.
EU authorities could be involved at the stage of judgment certification263 –
which could, if anything, grant the foreign judgment the legitimacy it needs to dis-
pense with judgment import controls in the state of enforcement.264 With regard to
judgment inspection, the need to maintain controls in the state of enforcement,
especially for fundamental procedural guarantees, could be partly alleviated by
allowing an appellate review of such rights through a common, supranational
court at the EU level.265 This, along with other means of harmonisation of the
grounds for refusal, could pave the way to implement the suggestion266 that a
Member State’s final decision on the existence of (specific) grounds for refusal
should be able to circulate freely under the new regime and bind enforcement
259
Dickinson, supra n 23, 268; Gaudemet-Tallon, supra n 204, 33; K Kerameus, in Magnus
and Mankowski, supra n 86, introduction to Arts 38–52 BRI para 23; Kramer, supra n 74,
353; S Leutheusser-Schnarrenberger, “Europäisches Zivilrecht – die nächsten Etappen”
[2011] Zeitschrift für Europäisches Privatrecht 451, 457; Markus, supra n 60, 765–66;
id, supra n 2, 814; Pohl, supra n 2, 113; Schramm, supra n 54, 82; Staehelin and Bopp,
supra n 76, Art 38 LC para 49; Wagner and Beckmann, supra n 74, 53; contra Hess,
supra n 83, 1104.
260
Cuniberti and Rueda, supra n 66, 301; De Cristofaro, supra n 203, 376; Markus, supra n
60, 763–64; PA Nielsen, “The Recast of the Brussels I Regulation”, in MJ Bonell, ML Holle
and PA Nielsen (eds), Liber Amicorum Ole Lando (Copenhagen, Djøf Publishing, 2012),
257, 265; Schack, supra n 240, 333.
261
Supra n 238.
262
J von Hein, “Die Abschaffung des Exequaturverfahrens durch die Revision der Euro-
päischen Gerichtsstands- und Vollstreckungsverordnung: Eine Gefährdung des Verbrau-
cherschutzes?”, in Geimer, Schütze and Garber, supra n 123, 645, 657.
263
Arenas García, supra n 60, 373, also citing the Green Paper response of the Associació
d’Estudis Jurídics Internacionals, 2.
264
Compare the Heidelberg Report’s suggestion (supra n 89) to amend the Regulation so as
to establish a binding effect of the certificate ex lege as to the Regulation’s applicability.
265
Cuniberti and Rueda, supra n 66, 312; De Cristofaro, supra n 203, 377–78, who men-
tions a vertical control by the CJEU rather than the horizontal one effected by the state
of enforcement.
266
Advocated by Schramm, supra n 54, 86, for decisions on whether the judgment
respected the fundamental principle of a fair trial pursuant to Art 46 CP.
250 P. Hovaguimian
authorities in other Member States on the basis of mutual trust and harmonised
standards of review. The concept seems however premature in the new
system,267 and its flaws may be exacerbated by the debtor’s easier access to pre-
ventive applications against recognition.268 The free circulation of decisions on
grounds for refusal would tread on the long standing prohibition of “exequatur
sur exequatur”,269 whose rationale consists amongst others in the prevention of
forum shopping: should divergent standards still exist, the debtor would then be
able to bar enforcement across EU by applying preventively in a more stringent
Member State and thereby bind all others with a positive decision on the existence
of grounds for refusal.
As mentioned above,270 opponents to the abolition of exequatur had suggested
alternative measures to reduce the costs and delays associated with exequatur
under Brussels I – namely EU-wide exequatur deadlines, caps on costs and a
loser-pays rule. Costs and delays in the revised regime could further be avoided
by means of a “clearing system” through which the creditor may apply for the sim-
ultaneous delivery of the certificate in several Member States, either through the
court of origin or a centralised website.271 Timmer’s suggestion that such an
online system would allow for computer-translated judgments may be overly opti-
mistic, but one cannot deny that both the immediacy of electronic communication
and the availability of a rudimentarily translated judgment through such a system
would enable the enforcement authorities to discern the substance of its enforce-
able content,272 and, one can argue, allow the court addressed with an application
against enforcement to be made aware much sooner of the likely existence of
grounds for refusal than the Recast currently allows.
267
D’Avout, supra n 2, 1017 fn 14, and Geimer, supra n 149, 333, rightly reject such a
binding effect in the Recast, even for grounds for refusal reviewed identically across
Member States.
268
269
Although usually invoked to prevent the double exequatur of third state judgments, the
exequatur decision on a Member State judgment is equally excluded from cross-border rec-
ognition and enforcement (see eg Geimer, supra n 149, 329; Kodek, supra n 86, Art 32 BRI
para 9; Kropholler and von Hein, supra n 73, Art 32 BRI para 15; Leible, supra n 175, Art
32 BRI para 14; Rassi, supra n 43, Art 32 BRI para 30).
270
271
Dickinson, supra n 23, 266 fn 121; supportive: Timmer, supra n 74, 146. As Dickinson
notes, the Commission itself considered “a system of co-operation between courts . . . which
would allow EU claimants to introduce the application in their own Member State, after
which the courts of the Member State of origin would transmit it to the Member State
where enforcement is sought” (Impact Assessment, supra n 191, 14) as an alternative to
the abolition of exequatur, but failed to reintegrate the concept in its exequatur-free
proposal.
272
Timmer, supra n 74, 146.
F. Conclusion
The final Brussels I Recast settled for lesser amendments than the overly ambitious
reform proposed by the Commission. In the context of recognition and enforce-
ment, the new regime provides for small victories here and there, including a
minor decrease in costs within the EU. Some of its criticism, especially the
initial apprehension towards the new responsibilities of enforcement organs,
seems mostly inconclusive.
Nonetheless, one may wonder whether these modest results warranted the
reform of a well-established European instrument: the revised enforcement
system carries the risk of uneven domestic standards well beyond the minimum
and maximum requirements set out in the previous regime. Depending on its
implementation in the different Member States, Brussels I bis may defeat the
reform’s very purpose by worsening the creditor’s position through overlong
delays; it may conversely accelerate the procedure to allow irreversible enforce-
ment measures being taken against a debtor’s property long before any court
has had the chance to consider the existence of an unacceptable judgment.
Indeed, the Recast favours a challenge procedure governed by national law
and judicial discretion, discarding the rules that formerly harmonised critical
issues such as the debtor’s grace period, the time limits to challenge enforcement,
the time limits to proceed with protective measures, or the availability of definitive
enforcement measures after a failed first-instance challenge. Overall, both credi-
tors and debtors are subject to significant uncertainties as to the ultimate extent
of their respective rights in the enforcement procedure. Amidst those missed
opportunities, the Brussels regime may well end up taking one step forward but
two steps back.

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Journal of Private International Law

ISSN: 1744-1048 (Print) 1757-8418 (Online) Journal homepage: https://www.tandfonline.com/loi/rpil20

The enforcement of foreign judgments under

To link to this article: https://doi.org/10.1080/17441048.2015.1068001

Published online: 14 Aug 2015.

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The enforcement of foreign judgments under Brussels I bis: false

© 2015 Taylor & Francis

B. Recognition and enforcement under Brussels I bis: an overview

(c) The extent of the ﬁrst-instance review then and now

“execution clause” by a court (Vollstreckungsklausel) as the ﬁrst step towards enforcement.

(d) Assessing the potential issues of judgment import

3. Judgment enforcement and inspection

(a) Application for refusal: additional grounds and designated courts

(b) Changes in the debtor’s rights

(c) Changes in the creditor’s rights

D. Mission accomplished? A look back on the reform’s objectives

1. Costs and efﬁciency in the EU single market

(b) Implementation in Brussels I bis

2. The “mutual trust” rationale

(b) Implementation in Brussels I bis

E. Alternative models and proposed enhancements

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