EU Law and Practice Contributed by: Nathalie Colin, Maria-Clara Van den Bossche, Kevin Xhebexhia and Florence Frühling, Freshfields LLP
3.3 Categories of Foreign Judgments Not Enforced Judgments may of course only qualify for recognition and enforcement under the European and international enforcement regimes if they fall within the substantive scope of application. The instruments applicable in civil and commercial matters (which typically exclude, for instance, tax matters or administrative matters) are discussed herein. The European and international instruments include grounds allowing member states to refuse recognition and enforcement of a foreign judgment (see 3.6 Challenging Enforcement of For- eign Judgments ). Furthermore, some types of foreign judgments do not qualify for recognition and enforceability under the European and international regimes. Notably, under the Brussels I Recast Regulation, the regime for interim measures is stricter than for final judgments, as the regime for the recognition of interim measures requires that the court issuing interim relief also has jurisdiction for the main proceedings on the merits. Interim measures will not benefit from the Brussels I Recast Regulation’s recognition regime if they were ordered without the defendant being summoned to appear, unless the judgment containing the order is served on the defendant prior to enforcement. 3.4 Process of Enforcing Foreign Judgments The actual enforcement of foreign judgments will be governed by the law of the member state involved, so domestic law applies in this regard. As for the recognition and enforceability that precede actual enforcement, the main element to verify is whether a party seeking enforcement is required to initiate specific proceedings to obtain the recognition and enforcement of a foreign judgment. This differs depending on the European or international instru - ments, as follows: • under the Brussels I Recast Regulation, a foreign judgment is automatically recognised and consid - ered enforceable; • under the Lugano Convention, even though recog - nition is automatic, a party will still have to obtain a prior declaration of enforceability to be able to proceed to actual enforcement; and
• under the Hague Choice of Court Convention and the Hague Judgments Convention, there is no automatic recognition or enforcement. If there is no applicable regulation or convention, the domestic laws of each country where enforcement is sought will govern the question of recognition and enforceability. They will typically provide a requirement to initiate specific proceedings to obtain recognition and/or enforceability. 3.5 Costs and Time Taken to Enforce Foreign Judgments Like domestic judgments (see 2.3 Costs and Time Taken to Enforce Domestic Judgments ), the costs and time required for the enforcement of foreign judgments will depend significantly on the national jurisdiction in which the judgment is being enforced – primarily depending on the specific legal procedures and the court system in general. Please refer to the national enforcement options and procedures set out in the other chapters of this Global Practice Guide. Where recognition or enforceability is granted auto - matically under a European regulation or international instrument, this naturally reduces the costs and time required. Instruments such as the European Payment Order Regulation (Regulation (EC) No 1896/2006) and the EAPO Regulation aid further in reducing the bur - den of enforcement. 3.6 Challenging Enforcement of Foreign Judgments Where European and international instruments such as the Brussels I Recast Regulation, the Lugano Con - vention, the Hague Choice of Court Convention and the Hague Judgments Convention facilitate enforce - ment, they each provide a limited list of grounds on which the jurisdiction where enforcement is sought may refuse recognition and enforcement. Under the Brussels I Recast Regulation, recognition may be denied if: • such recognition is manifestly contrary to public policy in the member state where enforcement is sought;
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