2012 EU Parliament report

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With that in mind, the procedure for contesting the enforcement and recognition of judgements has not changed.[1] As disclosed by the 2012 EU Parliament report,[2] the party against whom the enforcement is sought may exercise an exceptional procedure wherein the enforcement may be contested.[3] This however raises another important issue that needs to be addressed, namely that the abolition of exequatur removes a safeguard that protects the fundamental right to a fair trial. The case in point here is Krombach,[4] which concerned a German national convicted of manslaughter of a French national, however the accused had not been present during the trial in France, and sought a declaration of unenforceability in Germany, based on the Convention[5], as it was against public policy in Germany. This is representative of a form of protection that is required where a breach of basic human rights occurs.[6] The case here represents the equality that is necessary for the free movement of judgements and the enforceability of those judgements with respect to upholding fundamental human rights. Therefore, the total abolition of exequatur may provide difficult when facing a human rights issue, even although it can often be incorporated under public policy matters.

The referendum[7] held on June 23rd 2016 in the United Kingdom concerning the withdrawal from the European Union resulted in the majority of the population choosing to leave the Union. With that in mind, considerations need to be made as to what effect this may have with respect to the changes in the legal system and what could happen after the state leaves, and what effect this could have in relation to the free circulation of judgements between the Union and the UK.

First and foremost, the question of jurisdiction needs to be resolved. To this there are options toward what that could be, for example the UK and the EU could enter into a bilateral arrangement covering the UK, as Denmark has done, opting into the Brussels I recast Regulation, or the UK can adopt the Lugano Convention[8] which contains some changes from the Brussels regime, or alternatively the UK can stipulate no terms towards an agreement in this area.

[1]Alavi, Hamed, Khamichonak, Tatsiana, “A STEP FORWARD IN THE HARMONIZATION OF EUROPEAN JURISDICTION: REGULATION BRUSSELS I RECAST”, Baltic Journal of Law & Politics 8:2 (2015): 159–181 <http://www.degruyter.com/view/j/bjlp> Accessed: 4 March 2017, DOI: 10.1515/bjlp-2015-0023

[2]European Parliament, Report [29 June 2012] 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)), doc. No. A7-0219/20, para. F

[3]Refusals of recognition and enforcement of judgements are disclosed in Chapter III Section 3 of the recast regulation.

[4]Case C-7/98 Krombach v Bamberski [2000] ECR I-1395 – abogados de accidentes reviews

[5]1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters Official Journal L 299 , 31/12/1972 P. 0032 – 0042 Article 27 (1)

[6]Paul Beaumont; Emma Johnston “Can Exequatur be Abolished in Brussels I Whilst Retaining a Public Policy Defence?”, Journal of Private International Law, (2010) 6:2, 249-279

[7]Archive – <https://www.gov.uk/government/topical-events/eu-referendum> Accessed: 5 March 2017

[8]Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter OJ L339/3