Commentary of Articles 46-57

Abstract

Comprehensive commentary of Arts 46-57 of the Brussels I bis Regulation. The commentary on Arts 46-51 deals with ‘refusal of enforcement’. It is argued that Art 46 allows any judgment debtor or any judgment creditor to apply for and to obtain a decision on whether there are Article-45 grounds impeding enforcement, no matter if enforcement proceedings have actually been initiated. It is also argued that, in Articles 47-51, the expression ‘refusal of enforcement’ includes all applications relating to the existence of Article-45 grounds in the context of a future or an on-going recognition or enforcement of a foreign judgment in a particular EU Member State. In addition, the rules on jurisdiction and procedure that are applicable to such applications are explained. Further commentary explores the consequences of the need that a decision on ‘refusal of enforcement’ is given ‘without delay’, the appeals that may follow that decision and the possibility of a stay of the proceedings on ‘refusal of enforcement’ when the foreign judgment may be appealed or has been appealed at the State of origin. The commentary on Arts 52-57 tackles the ‘common provisions’ on recognition and enforcement. First, it is concluded that, despite Article 52, the Brussels I bis Regulation does allow for a review in the State addressed of the substance of the judgment, or of the procedure leading to the judgment, but only to the extent to which other provisions of the Regulation expressly permit such review. Second, commentary is provided on several aspects relating to the certificate for recognition or enforcement, such as its contents, its issuance, its interpretation and the potential challenges against it. Third, it is argued that Art 54 establishes a general rule whereby EU Member States may not refuse recognition or enforcement on the basis that the foreign judgment contains a measure or order which is ‘unknown’ to the legal system of the Member State addressed. In such cases, the court or authorities at the Member State addressed should proceed to an adaptation of the unknown measure or order – or even a series of adaptations – to make the recognition or enforcement possible. Fourth, due attention is paid to the enforcement of penalty orders given in the State of origin, normally in the context of the enforcement of judgments containing injunctive relief. Fifth, the prohibition of requiring security to the applicant who is a foreign national or is not domiciled or resident in the Member State addressed is analyzed. Finally, the general rules that are applicable to the translations and transliterations are explained.