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ABOLITION OF EXEQUATUR: PROBLEMS AND SOLUTIONS.
MUTUAL RECOGNITION, MUTUAL TRUST AND RECOGNITION OF FOREIGN JUDGMENTS:
* **

TOO MANY WORDS IN THE SEA

Dr. Rafael Arenas García

SUMMARY: I. Introduction: A. First steps B. Regulation 44/2001 II. The exequatur as
a procedure. III. Exequatur and grounds for the refusal of recognition: A. The mutual
recognition of judgments: 1. Mutual recognition and mutual trust. 2. The principle of
mutual recognition 3. The grounds for the refusal of recognition: a) Introduction. b)
Examination of the jurisdiction of the court which delivered the judgment. c) Conflict
with another decision. d) Inappropriate service. e) Public policy. B. The quest for
mutual trust. IV. Conclusion.

I. Introduction

A. First steps

The abolition of exequatur is one of the objectives laid down by the European Union
(EU) in order to strengthen the European Area of Justice. The Stockholm Programme
establishes that “the process of abolishing all intermediate measures (the exequatur),
should be continued”1. This represents the last formulation of an idea that had already
been introduced in the European Policy by the Tampere Programme. Point 34 of the
latter urges the Commission to make proposals for further reducing the intermediate
measures required to enable the recognition and enforcement of decisions or judgments
in the requested State2. As a consequence of this mandate, the Commission drew up
some Proposals that later became Regulations. Regulation 2201/2003 concerning
*

This contribution has been elaborated in the framework of the Research Project “Interacción entre la
autonomía de la voluntad y la protección de los intereses generales en la regulación de la actividad
internacional de las sociedades”, financed by the Subdirección General de Proyectos de Investigación del
Ministerio de Ciencia e Innovación. Reference: DER2009-09039 (subprograma JURI). Main investigator:
Dr. Rafael Arenas García.
**
The author thanks Dr. Crístian Oró Martínez, postdoctoral researcher at the Universitat Autònoma de
Barcelona, for the revision of the English text and for his comments and suggestions. The author is fully
responsible for all mistakes.
1
See
point
3.1.2;
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010XG0504(01):EN:NOT
2
“In civil matters the European Council calls upon the Commission to make a proposal for further
reduction of the intermediate measures which are still required to enable the recognition and enforcement
of a decision or judgment in the requested State. As a first step these intermediate procedure should be
abolished for the tittles in respect of small consumer or commercial claims and for certain judgments in
the field of family litigation (e.g. on maintenance claims and visiting rights). Such decision would be
automatically recognised throughout the Union without any intermediate proceedings or grounds for
refusal of enforcement. This could be accompanied by the setting of minimum standards on specific
aspects of civil procedural law.”; http://www.europarl.europa.eu/summits/tam_en.htm.

1

jurisdiction and the recognition and enforcement of judgments in matrimonial matters
and the matters of parental responsibility, repealing Regulation 1347/20003, establishes
that certain judgments concerning rights of access and certain judgments which require
the return of a child are enforceable in a Member State, other than the Member State
were the judgment was given, without the need for a declaration of enforceability and
without any possibility of opposing its recognition. The condition for this “automatic”
enforceability is that the judgment be certified in the Member State of origin in
accordance with the provisions of the Regulation4. The road to an unconditional
recognition and enforcement of judgments given in other Member States had been
opened, and Regulation 805/2004 creating a European Enforcement Order for
uncontested claims became the next step forward.
Regulation 805/2004 determined that judgments given or public documents drawn up in
a Member State and certified as a European Enforcement Order would be enforceable in
another Member State without any possibility of opposing its recognition. This means
that a European Enforcement Order certified in a Member State should be enforced
under the same conditions as a judgment handed down in the Member State of
enforcement5.
Quite understandably, the direct enforcement of a foreign judgment, without the
possibility of opposing its recognition, was new and, to a certain extent, shocking. The
European Enforcement Order was conceived as a kind of experiment aimed at testing
the possibilities of further reductions of the exequatur6. As we have seen, Point 34 of the
Tampere Programme urges the Commission to adopt initiatives in order to reduce
intermediate measures required for the recognition in a Member State of decisions
adopted in another Member State. Thus, in only five years the Commission managed to
draw up two Proposals that became Regulations by means of which the exequatur was
eliminated for certain types of judgments.
In November 2004 the European Council adopted a multiannual plan for the area of
freedom, security and justice (the Hague Programme), which was aimed at building on
the achievements already reached, as well as meeting new challenges. The Programme
3

OJ L 338, 23.12.2003.
See Art. 41(1) and 42(1) of Regulation 2201/2003.
5
See Art. 20(1) of Regulation 805/2004.
6
Cf. GARCIMARTÍN ALFÉREZ F.J., El título ejecutivo europeo, Cizur Menor (Navarra) 2006, p. 35. See
also MIGUEL ASENSIO P.A. DE, ‘Espacio Europeo de Justicia: evolución y perspectivas en el sector del
reconocimiento y ejecución de resoluciones’, Anuario Español de Derecho internacional privado 2006,
pp. 441-466, p. 450.
4

2

of the Council did not include a specific call for the abolition of intermediate measures7,
but the Commission assumed that the suppression of exequatur had to be evaluated.
Point 4.3 of the Annex to the Communication from the Commission to the Council and
the European Parliament on the Hague Programme8 considers “the evaluation of the
possibility of the suppression of exequatur” as one of the tasks that should be done in
order to strengthen the efficiency of justice and improve mutual recognition and
effective access to justice in civil matters. The timetable scheduled by the Commission
establishes that this evaluation should be done in the period 2008-2010. Similarly, the
Council and Commission Action Plan implementing the Hague Programme on
strengthening freedom, security and justice in the European Union9 includes the
“evaluation of the possibility of completing the abolition of exequatur (2006 to 2010),
and legislative proposals if appropriate”10.
As we have just seen, the abolition of exequatur became a specific goal for the period
2006-2010 as a consequence of a subtle evolution from the Council plan of November
2004 to the Council and Commission Action Plan of August 2005. The evaluation of
the existing instruments, which was required by the November Plan, was substituted by
an evaluation of the possibilities of abolishing the exequatur. The result of this change is
that no evaluation of the existing instruments (Regulation 2201/2003 and Regulation
805/2004) was made11. In spite of this fact, in the last years some new Regulations have
carried on with the task of suppressing exequatur. These Regulations are Regulation

7

See the Presidency Conclusions of the Brussels European Council of 4-5 November 2004
(http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/82534.pdf). Point 3.4.2 (mutual
recognition of decisions in civil matters) established the continuation of the implementation of the
programme of measures on mutual recognition, but without any specific request of abolishing the
exequatur. On the contrary, the Council recommended “a careful review of the operation of instruments
that have recently been adopted”. Moreover, it seems that in the absence of such previous review the
adoption of new measures would not be advisable: see point 3.4.2 in fine, according to which “The
outcome of such reviews should provide the necessary input for the preparation of new measures”.
8
Communication from the Commission to the Council and the European Parliament – The Hague
Programme: Ten priorities for the next five years. The Partnership for European renewal in the field of
Freedom, Security and Justice, COM(2005) 184 final.
9
OJ, C 198 of 12.8.2005.
10
Point 4.3(l).
11
See the contribution of the French Government to the Green Paper on the review of Regulation 44/2001
(http://ec.europa.eu/justice/news/consulting_public/news_consulting_0002_en.htm). This contribution
points out that it would be advisable to test how the existing Regulations are working before eliminating
exequatur in Regulation 44/2001. See also the contribution of the United Kingdom (ibid.), which
indicates that “we would be interested to hear whether the Commission considers the experience that is
currently available as to the practical operation of these instruments [Regulations 805/2004, 1896/2006
and 861/2007] is sufficiently positive to justify placing reliance on them as satisfactory models in the
current exercise”. In a similar sense, see also the contributions of Poland (p. 1) and of the Zentralverband
des deutschen Handwerks (p. 1).

3

1896/2006 creating a European order for payment procedure12, Regulation 861/2007
establishing a European Small Claims Procedure13 and Regulation 4/2009 on
jurisdiction, applicable law, recognition and enforcement of decisions and cooperation
in matters relating to maintenance obligations14. All these instruments provide that, in
certain conditions, decisions given in a Member State can be recognised and enforced in
another Member State without the adoption of an enforceability decision in the Member
State where recognition or enforcement is sought. In these cases, no grounds for the
refusal of recognition are admitted. This means that the foreign judgment or document
has to be recognised and enforced under the same conditions as judgments or
documents given in the Member State where recognition is sought. A refusal of
recognition is therefore not possible15.

B. Regulation 44/2001

After the “limited” experiments that we have just mentioned, the Commission started to
work towards a most significant achievement: the transformation of the core instrument
of European Judicial Cooperation in civil matters, Regulation 44/2001, into an
“exequatur-free Regulation”. A Green Paper on the review of this Regulation was
presented in 200916. In this paper, the Commission launched a discussion on the
possibility of abolishing exequatur in all civil and commercial matters. The reason put
forward to justify this abolition has to do with the expenses that must be paid when

12

Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006
creating a European order for payment procedure, OJ L 399, 30.12.2006.
13
Regulation (EC) 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing
a European Small Claims Procedure OJ, L 199, 31.7.2007.
14
Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7,
10.1.2009.
15
See Regulation 4/2009, Art. 17: “Abolition of exequatur.- 1. A decision given in a Member State bound
by the 2007 Hague Protocol shall be recognised in another Member State without any special procedure
being required and without any possibility of opposing its recognition. 2. A decision given in a Member
State bound by the 2007 Hague Protocol which is enforceable in that State shall be enforceable in another
Member State without the need for a declaration of enforceability”; Regulation 861/2007, Art. 20.1: “A
judgment given in a Member State in the European Small Claims Procedure shall be recognised and
enforced in another Member State without the need for a declaration of enforceability and without any
possibility of opposing its recognition”; Regulation 1896/2006, Art. 19: “Abolition of exequatur.- A
European order for payment which has become enforceable in the Member State of origin shall be
recognised and enforced in the other Member States without the need for a declaration of enforceability
and without any possibility of opposing its recognition.”
16
Green Paper on the review of Council Regulation (EC) nº 44/2001 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters, COM(2009) 175 final, Brussels,
21.4.2009.

4

recognition or enforcement of a decision given in a Member State is sought in another
Member State17. The Stockholm Programme, as we have pointed out, confirms this line
of action. From the Commission and the European Council point of view, the internal
market and the European Area of Justice require the abolition of exequatur. The existing
intermediate measures are not compatible with an effective and true area of justice in
civil matters. On 14 December 2010, the Commission published its proposal for a
revision of Regulation 44/200118. The proposal does abolish exequatur, but it
establishes exceptions for judgments in defamation cases and in compensatory
collective redress cases19. However, these exceptions are only transitional, as they could
be removed after 201620. More importantly, the proposal lays down some safeguards in
order to protect the defendant’s right to a fair trial21. Some of these safeguards have the
same effects as some of the current grounds for refusal of recognition of foreign
judgments22.
Of course, it is highly likely that the final result of the review will differ from the
Commission’s proposal, and the purpose of this article is not to comment the proposal;
but we will nevertheless take it into consideration when necessary in order to analyse
some general problems related to the abolition of exequatur. Specifically, we will
discuss the advantages and disadvantages of such abolition, bearing in mind that the
abolition of exequatur can have two different meanings. First, we will consider the
advantages and disadvantages of the abolition of the procedure of exequatur in a
scenario where the grounds for the refusal of recognition of foreign judgments are
maintained; that is to say, the advantages and disadvantages of the abolition of the
formal procedure of exequatur, even in the case that in some circumstances the refusal

17

See Green Paper, first question: “The existing exequatur procedure in the Regulation simplified the
procedure for recognition and enforcement of judgments compared to the previous system under the 1968
Brussels Convention. Nevertheless, it is difficult to justify, in an internal market without frontiers, that
citizens and businesses have to undergo the expenses in terms of costs and time to assert their rights
abroad. If applications for declarations of enforceability are almost always successful and recognition and
enforcement of foreign judgments is very rarely refused, aiming for the objective of abolishing the
exequatur procedure in all civil and commercial matters should be realistic. In practice, this would apply
principally to contested claims. The abolition of exequatur should, however, be accompanied by the
necessary safeguards”.
18
COM(2010)748/3. See MIGUEL ASENSIO P.A. DE, “La propuesta de revisión del Reglamento Bruselas
I”, Pedro de Miguel Asensio, pedrodemiguelasensio.blogspot.com; ARENAS GARCÍA R./ORÓ MARTÍNEZ
C., “La propuesta de revisión del Reglamento 44/2001: algunos pasos en la dirección correcta”, Àrea de
Dret Internacional Privat, blogs.uab.cat/adipr/
19
See Art. 37(3) and Arts. 40 to 44.
20
See Art. 37(4).
21
See Arts. 45 and 46.
22
See infra III.3.

5

of the recognition would still be possible23. Second, we will deal with the possibility of
completely eliminating the grounds for the refusal of recognition of foreign judgments
given in another Member State of the EU.
Of course, both meanings of the abolition of exequatur are connected: if the grounds for
the refusal of recognition are removed, then there is no justification for maintaining a
formal procedure of exequatur. But even if these grounds are maintained, there are some
reasons in favour of abolishing the procedure of exequatur. We will consider this
question in the next section.

II. The exequatur as a procedure

As we have just pointed out, exequatur is a procedure; a particular procedure whose
purpose is to make a foreign decision enforceable in the forum. The sole goal of this
procedure is to verify that there are no grounds for refusing the recognition of the
foreign decision. The decision issued in the exequatur procedure establishes whether the
foreign decision can be accepted in the forum. When the procedure ends with a positive
resolution, the foreign decision becomes effective in the forum. Usually both decisions,
the foreign decision and the decision issued in the exequatur procedure, are required
when a party seeks the effectiveness of the foreign decision in the forum. Without the
decision adopted in the exequatur procedure, the foreign decision lacks any effect24.

23

See MIGUEL ASENSIO P.A. DE (note 6), pp. 457-458; the Contributions to the Green Paper on the
review
of
Council
Regulation
(EC)
44/2001
(http://ec.europa.eu/justice/news/consulting_public/news_consulting_0002_en.htm) of the United
Kingdom House of Lords (number 30), of the Associació d’Estudis Jurídics Internacionals (AEJI) (p. 1),
of Clifford Chance (p. 2), of the Financial Markets Law Committee (pp. 1-2), of Herber Smith LLP (p. 2),
and of Prof. Magnus and Prof. Mankowski of the University of Hamburg (p. 2-3); see also ORÓ
MARTÍNEZ C., ‘Control del orden público y supresión del exequatur en el espacio de libertad, seguridad y
justicia: perspectivas de futuro’, Anuario Español de Derecho internacional privado 2009, pp. 201-224,
p. 204; OBERHAMMER P., ‘The Abolition of Exequatur’, IPRax 2010, number 3, pp. 198-203, p. 200;
CUNIBERTI G./ RUEDA I., ‘Abolition of Exequatur. Addressing the Commission’s Concerns’, Université
du Luxemborug. Law Working Paper, 2010-03 (also published in RabelsZ, 2011), p. 14. This is also the
opinion of the European Parliament: see the 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,
(http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-20100304&language=EN&ring=A7-2010-0219), point 2.
24
See e.g. Arts. 951-958 of the Spanish Ley de Enjuiciamiento Civil (1881); these articles are still in force
because the “new” Ley de Enjuiciamiento Civil (2000) does not cover the matter of the recognition of
foreign judgments in Spain. See FERNÁNDEZ ROZAS J.C./ SÁNCHEZ LORENZO S., Derecho internacional
privado, Cizur Menor (Navarra) 2009, p. 185.

6

Exequatur is, obviously, an “intermediate measure” in the sense of the Stockholm
Programme25. Moreover, it is a procedure broadly used to make effective in the forum
judgments issued abroad26. But by no means is exequatur the only way to achieve the
extraterritorial effectiveness of judgments. In many cases, exequatur is only required if
a party seeks one of the possible extraterritorial effects of foreign judgments, namely
the possibility of opening an enforcement procedure. In such cases, the purpose of
exequatur is to obtain a declaration of enforceability. But if a party does not seek to
enforce the foreign judgment, then exequatur is not necessary. Regulation 44/2001
follows this model: only the enforcement of foreign judgments requires a declaration of
enforceability, whereas no specific procedure is required for the recognition of such
decisions. This implies that foreign judgments can be used to raise actions or defences
based on res judicata without previously obtaining their exequatur. Similarly, records in
public registers can be updated on the basis of a foreign decision without the need of a
prior exequatur of the decision.
Recognition without exequatur (automatic recognition) does not mean that foreign
judgments are always recognised, because automatic recognition is not the same as
unconditional recognition27. The authority before which recognition is sought should
(must) verify whether the foreign judgment meets the conditions required to become
effective in the forum. Thus the abolition of exequatur does not necessarily mean that
the grounds for non-recognition should also be abolished. If the procedure of exequatur
is removed from Regulation 44/2001, the authority entitled to enforce a foreign
judgment in the forum should control (ex officio or upon the request of the party against
whom enforcement is sought) the conditions for recognition and enforcement of the
foreign decision. Should this be the case, the abolition of the procedure of exequatur
would imply that the recognition of a foreign judgment for the purpose of opening an
enforcement procedure would follow the same regime as the other extraterritorial
effects of this judgment: the automatic recognition established in Art. 33 of Regulation
44/2001 would also apply to the enforcement of the foreign decision, or, more

25

See supra footnote n. 1.
See e.g. GRUBBS S.R. (ed.), International Civil Procedure, The Hague/London/New York 2003,
passim. See also RIGAUX F./ FALLON M., Droit international privé, Bruxelles 2005, pp. 429-430;
LOUSSOUARN Y./ BOUREL P./VAREILLES-SOMMIERS P. DE, Droit international privé, Paris 2004, p. 706;
FERNANDEZ ROZAS J.C./SANCHEZ LORENZO S. (note 24), p. 208.
27
See FERNÁNDEZ ROZAS J.C./ SÁNCHEZ LORENZO S. (note 24), p. 205.
26

7

accurately, the recognition of the foreign decision would be an incidental question in the
enforcement procedure28.
Incidental recognition of foreign decisions in the framework of the procedure of
enforcement would be something new in Brussels I. Neither the Brussels Convention,
nor Regulation 44/2001, allow the enforcement of foreign decisions without a previous
decision on their enforceability. However, incidental recognition of the enforceability of
foreign decisions is compatible with the general structure of the Regulation. It could
even be more accurate than the current procedure. Taking into account that the general
principle of the Regulation is the automatic recognition of judgments given in another
Member State, the requirement of a specific decision on the enforceability of foreign
decisions should be carefully justified. In this sense, it is worth pointing out that when
the Brussels Convention of 27 September 1968 entered into force in Spain, some
Spanish Courts understood that judgments given in a State party to the Convention were
enforceable without a previous exequatur. This misinterpretation of the Convention
implied that in some cases a foreign decision was presented directly to the enforcement
court, and this court accepted the enforcement claim!29
Thus, if the formal procedure of exequatur is abolished, the grounds for the refusal of
recognition could be verified in the enforcement procedure. Delays and costs in crossborder recovery would be reduced since one single procedure, the procedure of
enforcement, would be necessary. The specific procedure aimed at controlling the
conditions for the recognition would disappear, but the grounds for the refusal of the
recognition would remain. From our point of view this is probably the best solution.
However, it must be pointed out that the abolition of the formal procedure of exequatur
would bring about some problems. In the absence of a specific procedure aimed at
controlling the conditions for recognition, the possibility now offered by Art. 33(2) of
28

See Art. 33(3) of Regulation 44/2001: “If the outcome of proceedings in a court of a Member State
depends on the determination of an incidental question of recognition that court shall have jurisdiction
over that question.”
29
See STS (Sala 1ª) of 12 November 1999, Aranzadi Westlaw, RJ 1999\8864. See ARENAS GARCÍA R.,
‘Primeros contactos del Tribunal Supremo con el Convenio de Bruselas de 1968. Una nueva esperanza.
Comentario a la sentencia del Tribunal Supremo (Sala 1ª) de 12 de noviembre de 1999’, La Ley. Unión
Europea 2000, number 4994, pp. 1-4. See also Auto of the Audiencia Provincial de Vizcaya (Sección 4ª)
of 19 June 1996 (Revista de la Corte Española de Arbitraje 1996, pp. 158-159; REDI 1996, pp. 281-282,
with a comment by ESTEBAN DE LA ROSA G, ibid., pp. 282-286; see also id., ‘El recuso de casación:
última vía procesal en el sistema del Convenio de Bruselas. Comentario al auto 235/1996 de 19 de junio
de la AP de Vizcaya’, La Ley. Unión Europea 1997, number 4239, pp. 1-5; FUENTES CAMACHO
V./MIGUEL ASENSIO P.A. DE, ‘El control de la competencia del Tribunal de origen en el Convenio de
Bruselas de 1968: litigios iniciados antes de su entrada en vigor (a propósito del Auto de la Aud. Prov. de
Vizcaya (Sección 4ª) de 19 de junio de 1996)’, Revista de la Corte Española de Arbitraje 1996, pp. 8388).

8

Regulation 44/2001 would disappear. It may be useful to preserve it. When a foreign
judgment is not recognised by the authority or person before whom it is presented, Art.
33(2) gives the claimant the possibility of obtaining a decision establishing in a
definitive way that the foreign judgment fulfils the conditions of recognition. In some
cases it would be preferable to open a proceeding in which recognition is the principal
issue, rather than relying on the decision of the authority before whom the judgment is
presented. Automatic recognition entails the impossibility of obtaining a definitive
answer to the question of the recognition of the decision: each authority can adopt its
own decision as regards the recognition of a specific decision, since authorities are not
bound by the decisions previously adopted by other authorities. A specific procedure of
exequatur eliminates the uncertainty of this situation. It is thus advisable to maintain the
procedure foreseen in Art. 33(2), although this procedure should in no case be
compulsory – not even for the enforcement of foreign judgments. When enforcement is
sought, the competent authority will verify the conditions for recognition. This
verification will take place in the procedure of enforcement; hence, the creditor who
seeks the enforcement of a foreign judgment will not face much more delay and costs
than in cases where the enforcement is based on a local judgment.
The proposal of the Commission on the review of Regulation 44/200130 partially
follows this approach. Indeed, it intends to abolish the procedure of exequatur, and thus
foreign judgments would be enforced without a previous declaration of enforceability,
although the competent authority of the State where enforcement is sought would be
able to refuse the enforcement in certain cases31. However, on the one hand, this refusal
of enforcement would not always imply an incidental recognition of the decision32, and
on the other hand, the proposal fails to establish a non-compulsory exequatur procedure
to be used by parties wishing to invoke in a Member State a judgment given in another
Member State. Still, we consider that an incidental recognition of foreign judgments in
the framework of the enforcement procedure, completed with a non-compulsory
exequatur procedure, would be a simpler and cheaper solution than the alternative
advanced by the Commission in its proposal, although in most cases the outcome of
each of these possibilities would not significantly differ.

30

See supra note 18.
See Arts. 44 and 45.
32
This matter will be analysed with more detail in section III.
31

9

III. Exequatur and grounds for the refusal of recognition

A. The mutual recognition of judgments

1. Mutual recognition and mutual trust

The principle of mutual recognition is often advanced as a nuclear argument in favour
of the abolition of intermediate measures in the recognition and enforcement of
judgments in Europe33. Sometimes it is also mentioned that “mutual trust” is a
cornerstone in the construction of a true European judicial area34. In this contribution
we will try to carefully delimit both concepts: on the one hand, mutual recognition, and
on the other hand, mutual trust. Our thesis is that it is better not to use them as
synonyms. Each one has a specific profile, and it is thus useful to consider them
separately.
Obviously both concepts are closely related, as the Stockholm Programme correctly
points out: e.g., point 3 (“Making People’s lives easier: a Europe of Law and Justice”)
states that “In the Hague Programme, adopted in 2004, the European Council noted that
in order for the principle of mutual recognition to become effective, mutual trust needed
to be strengthened by progressively developing a European judicial culture based on the
diversity of legal systems and unity through European law”. As the Stockholm
Programme also points out, the Hague Programme had previously linked the
implementation of European rules on jurisdiction, recognition and conflict of laws with
the adoption of measures aimed at building confidence and mutual trust among Member
States35.
33

See point B.VI of the Conclusions of the Tampere European Council in October 1999 (supra footnote
n. 2), point 3.4.1 of the Presidency Conclusions of the Brussels European Council of November 2004
(supra footnote n. 7), point 4.3 of the Annex to the Communication from the Commission to the Council
and the European Parliament on the Hague Programme (supra footnote n. 8) and point 3.1.2 of the
Stockholm Programme (supra footnote n. 1). The principle of mutual recognition is essential not only as
regards cooperation in civil matters, but also in criminal matters and, in general, for the strengthening of
the European area of freedom, security and justice.
34
See points 1.2.1 and 3 of the Stockholm Programme.
35
See point 2.3 (9) of the Hague Programme: “A European area of justice is more than an area where
judgements obtained in one Member State are recognised and enforced in other Member States, but rather
an area where effective access to justice is guaranteed in order to obtain and enforce judicial decisions. To
this end, the Union must envisage not only rules on jurisdiction, recognition and conflict of laws, but also
measures which build confidence and mutual trust among Member States, creating minimum procedural
standards and ensuring high standards of quality of justice systems, in particular as regards fairness and

10

This is an accurate approach: on the one hand, mutual trust is a factual and political
ground for the implementation of mutual recognition; and on the other hand, when
mutual trust exists, mutual recognition should be improved36. Both concepts are
interconnected, but must be carefully delimited. In the next section we will deal with
mutual trust, but we will previously examine the principle of mutual recognition and its
implications for the simplification of the recognition and enforcement of foreign
judgments in the European Union.

2. The principle of mutual recognition

Firstly, mutual recognition of judgments is a goal, an objective. Every obstacle or limit
to the extraterritorial effectiveness of judgments given in a Member State weakens the
European Area of Justice; the easier the movement of judgments is, the stronger the
European Judicial Area becomes. However, this does not mean that the goal justifies
any measure adopted in order to achieve the free movement of judgments. This result,
the free movement of decisions, must be compatible with the respect of other principles
and rights. It is obvious that the goal (mutual recognition) is not per se an argument that
justifies every measure adopted in order to facilitate the recognition and enforcement of
judgments37.
Therefore, mutual recognition of decisions is one of the objectives of the European Area
of Freedom, Security and Justice. This objective must be achieved in criminal and in
civil matters, and in this sense it inspires the new Regulations and the revision of the
existing instruments. However, mutual recognition is also used in another sense: indeed,

respect for the rights of defence. Mutual understanding can be further pursued through the progressive
creation of a ‘European judicial culture’ that the Hague Programme calls for, based on training and
networking. A coherent strategy in the EU’s relations with third countries and international organisations
is also needed.”
36
See GARDEÑES SANTIAGO M., La aplicación de la regla de reconocimiento mutuo y su incidencia en el
comercia de mercancías y servicios en el ámbito comunitario e internacional, Madrid 1999, pp. 59-60.
The author explains the relationship between mutual trust and mutual recognition in the framework of the
free movement of goods.
37
However, it must be pointed out that the Court of Justice of the European Union has already used this
argument. See Judgment of 6 October 2009, C-123/08, Dominic Wolzenburg, especially number 58 of the
Judgment. The Court’s argument is nothing but an example of “the goal justifies the means” and must be
criticised. See ARENAS GARCÍA R./GARDEÑES SANTIAGO M., “La discriminación por razón de
nacionalidad es compatible con el Derecho comunitario”, Àrea de Dret Internacional Privat
(blogs.uab.cat/adipr), http://blogs.uab.cat/adipr/2009/11/05/la-discriminacion-por-razon-de-nacionalidades-compatible-con-el-derecho-comunitario/.

11

sometimes mutual recognition is conceived as a principle which imposes certain
restrictions to the possibility of limiting the free movement of judgments in the EU38.
It is true that the distinction between mutual recognition as a goal and mutual
recognition as a principle is not always clear enough; but we consider that it is
important to delimitate both meanings of mutual recognition. The principle of mutual
recognition is a consolidated element in EU law, and it could play some role in the free
movement of judgments. But in order to do so, we must rigorously examine this
principle: not as a rhetorical argument, but taking into account its limits and
consequences39. This task is nowadays absolutely necessary, since Art. 67(4) of the
Treaty on the Functioning of the European Union provides that the principle of mutual
recognition of judgments must be the basis of judicial cooperation in civil matters in the
EU40.

The principle of mutual recognition was “discovered” by the European Commission in
its Communication of 3 October 1980, following the Cassis de Dijon decision of the
Luxembourg Court41. According to this principle, the products lawfully produced and
marketed in one Member State (A) may be sold in another Member State (B), “even if
the product is produced according to technical or quality requirements which differ
from those imposed on its domestic products” [products produced in Member State
(B)]. “The importing country cannot justify prohibiting its sale in its territory by
claiming that the way it fulfils the objective is different from that imposed on domestic
products”42. The technical or quality requirements of the country of origin must be
“recognised” in the importing country. This principle was soon adopted in the field of

38

See, e.g. point 3.1 of the Stockholm Programme (supra footnote n. 1)
MÖSTL M. (‘Preconditions and limits of mutual recognition’, Common Market Law Review 2010,
number 2, pp. 405-436) establishes a clear distinction between, on the one hand, the principle of mutual
recognition in the internal market and, on the other hand, the principle of mutual recognition in the Area
of Freedom, Security and Justice (pp. 408-409). It is obvious that mutual recognition in the context of the
internal market and in the context of the recognition of foreign judgments must be considered separately,
and this is precisely our starting point, but, at the same time, we think that it is not impossible to consider
the principle of mutual recognition (understood as a defined and mandatory principle of European Law)
in the context of the Area of Freedom, Security and Justice.
40
“The Union shall facilitate access to justice, in particular through the principle of mutual recognition of
judicial and extrajudicial decisions in civil matters.”
41
Judgment of the CJEU of 20 February 1979, C-120/78, Rewe-Zentral AG v. Bundesmopolverwaltung
für Branntwein. The Communication was published in OJ, C 256, 3.10.1980. See GARDEÑES SANTIAGO
M. (note 28), p. 59.
42
See Communication from the Commission, loc. cit., p. 3.
39

12

technical analyses or certificates43 and as regards the freedom to provide services44.
Nowadays there is no doubt that mutual recognition is a cornerstone in the internal
market.
The question is how to transfer the concept of mutual recognition from the internal
market (free movement of goods and freedom to provide services) to the extraterritorial
effectiveness of judgments. It is true that the word “recognition” is used both in the
concept “principle of mutual recognition” and in the field of “recognition of
judgments”, but it is far from evident how recognition must be understood in each of
these fields. We will first consider the principle of mutual recognition, and we will
afterwards deal with its transposition to the recognition and enforcement of judgments.

Mutual recognition implies –in its original meaning– that it is not justified, and thus
forbidden, to impose controls or verifications in a Member State when they have
already been carried out in another Member State. The controls that have been made in
the State of origin cannot be ordered again in the State of destination. The rationale
behind this prohibition is that the authorities of the latter State must recognise the
certificates and permissions obtained in the State of origin. Of course, this prohibition
of repeating controls is only justified when the control carried out in the State of origin
is equivalent to the control required in the State of destination. The rules of the State of
origin must be equivalent to the rules of the State of destination. Without this
equivalence, mutual recognition does not work45. In this sense, we must distinguish
between the cases in which mutual recognition applies to products or services which are
subject to harmonization measures at the EU level, and the rest of cases, i.e., where such
harmonization does not exist. In the second scenario, the authorities of the State of
destination are allowed to verify if the level of protection in the State of origin is
equivalent to the level of protection in the State of destination46.
Therefore, equivalence is a key element for mutual recognition. Only when the rules in
force in the State of origin are equivalent to the rules of the State of destination does the
principle of mutual recognition apply.

43

See GARDEÑES SANTIAGO M. (note 36), pp. 61-65; see Judgment of the CJEU of 17 December 1981,
C- 272/80, Frans-Nederlandese Maatschappij voor Biologische Producten BV.
44
See GARDEÑES SANTIAGO M. (note 36), pp. 65-68.
45
Cf. GARDEÑES SANTIAGO M. (note 36), p. 86.
46
Cf. GARDEÑES SANTIAGO M. (note 36), p. 87.

13

Taking into account the importance of equivalence for the principle of mutual
recognition, it is rather doubtful that this principle could lead to a simplification of the
intermediate measures currently in force. Not only Regulations 44/2001, 2201/2003, or
even the Brussels Convention of 1968, but also the internal laws of many countries go
far beyond the requirements of the principle of mutual recognition. Since a review as to
the substance of the foreign judgment is not admitted47, it is possible to recognise a
judgment that applies legal rules which are not equivalent to the rules in force in the
State of destination.
Therefore, a strict consideration of the principle of mutual recognition in the field of
recognition and enforcement of foreign judgments would entail the need to control that
the law applied in the State of origin is equivalent to the law of the State of destination,
at least in matters which are not subject to harmonization. Of course this is not the goal
pursued by the Council, the Commission and the European Parliament. As we have seen
in section I, the aim is to eliminate all grounds for the refusal of recognition, not to
introduce new ones; and even though a complete harmonization of law could be a longterm objective, such harmonization is not considered a pre-requirement for the abolition
of exequatur and elimination of the conditions for the recognition and enforcement of
judgments given in another Member State.
Does this mean that the principle of mutual recognition is not useful for the revision of
Regulation 44/2001? I do not think so. Indeed, it is possible to examine whether the
existing grounds for the refusal of recognition are (or are not) coherent with the
principle of mutual recognition. In the next section we will deal with this problem. We
are going to examine whether the present grounds for the refusal of recognition in
Regulation 44/2001 are consistent or not with mutual recognition, so as to determine
which of these grounds must be removed in order to adjust Regulation 44/2001 to this
principle.

3. The grounds for the refusal of recognition

a) Introduction

47

See REMIRO BROTONS A., Ejecución de sentencias extranjeras en España. La jurisprudencia del
Tribunal Supremo, Madrid 1974, pp. 191-192; VIRGÓS SORIANO M./ GARCIMARTÍN ALFÉREZ F.J.,
Derecho procesal civil internacional. Litigación internacional, Cizur Menor (Navarra) 2007, pp. 635636.

14

As we have seen in the precedent section, the principle of mutual recognition bans the
repetition of controls or verifications already carried out in a Member State. When a
verification has already been made in a Member State it is not possible to require a new
verification in another Member State. Taking this into account, we are going to examine
the different grounds for the refusal of recognition. It must be highlighted that we will
not follow the order of Articles 34 and 35 of Regulation 44/2001: the last ground to be
considered will be the public policy of the Member State in which recognition is sought,
and the first condition to be analysed will be the examination of the jurisdiction of the
court which delivered the judgment. The reason which justifies this option is that,
among all the grounds for the refusal of recognition, contrariety with public policy is the
most difficult to connect with the principle of mutual recognition. As we will
immediately see, the relationship between the remaining grounds for the refusal of
recognition or enforcement and the principle of mutual recognition is much simpler.

b) Examination of the jurisdiction of the court which delivered the judgment

Article 35 of Regulation 44/2001 establishes that a judgment shall not be recognised if
it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.
The Regulation provides here two different grounds for the refusal of recognition. The
first one is related to the compliance with the jurisdiction rules on insurance contracts,
consumer contracts and the grounds of exclusive jurisdiction. The second one regards
the situation in which a Member State has agreed with a non-Member State that, in
certain circumstances, it will not recognise judgments given in other Member States
against defendants domiciled or resident in that non-Member State. The principle of
mutual recognition affects each of these cases in a very different way, and thus they
must be considered separately.

We will first deal with the ground for refusal of recognition based on the lack of
compliance with the jurisdiction rules of Sections 3, 4 and 6. It is clear that the
examination of the jurisdiction taken in relation to cases of exclusive jurisdiction,
insurance contracts and consumer contracts is not compatible with the principle of
mutual recognition48. With such a review, the authority of the State of destination would
48

See the Contribution of Herber Smith LLP to the Green Paper on the review of Regulation 44/2001
(http://ec.europa.eu/justice/news/consulting_public/news_consulting_0002_en.htm) p. 2: “There is an

15

merely repeat a control that was already carried out in the State of origin. The principle
of mutual recognition does not allow this result, and therefore the control must be
eliminated in order to make the Regulation coherent with mutual recognition.
It is worth pointing out that the control must be abolished even when the court of the
State of origin applied its own internal law49. In such case, the authority which must
decide on the recognition or enforcement should take into account the internal law of
the court that was seised of the matter, rather than the law that the courts of the State of
destination would have applied if they had been seised. Let us examine a case in which
an action is filed in Germany requesting the dissolution of a company registered in
England and whose real seat is located in Germany. German courts will consider –
applying their own rules of private international law– that the company has its seat in
Germany. The judgment on the dissolution of the company given in Germany should be
recognised in England, notwithstanding the fact that English courts would have
considered that the company had its seat in England. In the proceeding of recognition,
English authorities should only verify whether German courts correctly took
jurisdiction. And in this hypothesis, German courts correctly considered, under Article
22(2) of Regulation 44/2001, that the seat of the company was in Germany, since this is
the solution that results from applying the rules of private international law of the courts
that have been seised of the matter.

As we have just seen, the examination of the jurisdiction of the court of origin in cases
of exclusive jurisdiction, insurance contracts and consumer contracts is not compatible
with the principle of mutual recognition, and therefore this control should be
abolished50. On the contrary, the analysis of the second possibility of control of the
jurisdiction taken by the court which has given the judgment51 leads us to a very
different result.
These cases arise when the Member State of destination has agreed with a non-Member
State to refuse recognition of decisions coming from another State, provided that, on the
one hand, the defendant is domiciled or resides in this non-Member State and, on the
argument for deletion of Article 35 which allows for limited review of jurisdiction as it should be
assumed, based upon the principles of mutual trust, that the original Member State courts will have
applied the Regulation’s jurisdiction rules correctly”.
49
For example, in order to determine the domicile of a party (Article 59) or the domicile of a company
(Article 22(2)).
50
The proposal of the Commission eliminates this control even in those cases in which the declaration of
enforceability is required on a transitional basis; Art. 35 of the Regulation is removed.
51
Which, as we have seen, is regulated in Article 72.

16

other hand, the court of origin took jurisdiction on the basis of an exorbitant ground of
jurisdiction. When this is the case, the control carried out in the State of destination is
not a repetition of a control already done in the State of origin. The international
agreement that must be applied by the authorities of the State where recognition is
sought is not binding in the State were the judgment was given, and thus the courts of
the latter State decided over their jurisdiction without considering such agreement. The
control established by Article 35 in connection with Article 72 is, therefore, compatible
with the principle of mutual recognition.
In any case, it would certainly be possible to eliminate the obstacle to recognition
established by Articles 35 and 72; but I am not sure that this would be advisable.
Considering that agreements between Member States and non-Member States cannot be
revoked by EU Regulations, Member States are bound by these agreements regardless
of the obligations imposed by those Regulations. Therefore, it would be advisable to
maintain the ground for the refusal of recognition based on the existence of an
agreement between the Member State where recognition is sought and a non-Member
State. The proposal of the Commission on the review of Regulation 44/200152
eliminates Art. 35, but it maintains Art. 72 (now Art. 83). This provision would suffice
to justify the refusal of recognition of judgments given in a Member State when such
recognition would be contrary to agreements concluded between the requested Member
State and the non-Member State where the defendant is domiciled or resides.

c) Conflict with another decision

Paragraphs 3 and 4 of Article 34 establish that a judgment shall not be recognised if it is
irreconcilable with another judgment. The proposal of the Commission on the review of
Regulation 44/2001 maintains this control even in those cases where exequatur is
abolished53. The analysis of this ground for non-recognition must be made taking into
account different factors: on the one hand, whether the irreconcilable judgment was
handed down in the State where recognition is sought, in another Member State, or in a
52

See note 18.
See Art. 43: “The competent authority in the Member State of enforcement shall, on application by the
defendant, refuse, either wholly or in part, the enforcement of the judgment if (a) it is irreconcilable with
a judgment given in a dispute between the same parties in the Member State of enforcement; (b) it is
irreconcilable with an earlier judgment given in another Member State or in a third State involving the
same cause of action and between the same parties provides that the earlier judgment fulfils the
conditions necessary for its recognition in the Member State of enforcement.” This control also applies in
those cases where exequatur is maintained on a transitional basis. See Art. 48, paragraphs 3 and 4.
53

17

non-Member State; and on the other hand, whether the irreconcilable judgment was
given before or after the judgment whose recognition is sought. Each of these
possibilities deserves a particular consideration in relation with the principle of mutual
recognition.

We will first examine the relevance of the moment in which the irreconcilable judgment
was given, distinguishing between judgments given before the judgment whose
recognition or enforcement is sought, and judgments given after the decision whose
recognition or enforcement is requested. In the present state of law, when the
irreconcilable judgment was handed down later than the judgment whose recognition is
sought, recognition will only be rejected when the irreconcilable judgment was given in
the requested State. In such case (i.e., irreconcilable judgment given in the State where
recognition is sought after the decision which is intended to be recognised was given),
the control carried out in the State of destination is obviously not a repetition of a
control already done in the State of origin. Since the irreconcilable decision is
subsequent to the decision whose recognition is sought, it was impossible for the court
of the State of origin to control this ground of non-recognition. Therefore, denying
recognition on the basis of an irreconcilable decision given in the requested State is
coherent with the principle of mutual recognition when the latter decision is subsequent
to the decision of the State of origin.

When the irreconcilable decision was handed down previously to the judgment whose
recognition is sought, it is necessary to distinguish between cases in which the decision
was given in a Member State (including the State where recognition or enforcement is
sought) and cases in which the decision was given in a non-Member State. As we will
immediately see, when the decision was handed down in a Member State, controlling
the irreconcilability of the decisions is not coherent with the principle of mutual
recognition if the irreconcilable judgment was given before the judgment whose
recognition is sought.
When refusal of recognition is based on the irreconcilability of a decision given in a
Member State (either the requested Member State or another one) prior to the decision
whose recognition is sought, the incompatibility with the principle of mutual
recognition derives from the fact that the courts of the State of origin were able to take
into consideration the existence of this previous judgment in order to avoid the
18

irreconcilability of decisions. Right from the moment when the first judgment was
handed down, it was possible to submit it in any proceeding before a court of a Member
State. The second court had to take into account the prior decision, and was therefore
not allowed to hand down a decision incompatible with it. Hence, the control of the
irreconcilability of decisions had to be carried out in the second court, i. e., in the State
of origin of the judgment whose recognition is sought. Denying recognition (or
enforcement) on the basis of such irreconcilability would entail a repetition of a control
that should have been carried out in the State of origin.
However, in a few cases the control in the requested State will be compatible with the
principle of mutual recognition: namely when the prior judgment could not be
recognised in the State where the second judgment was given. But of course, the fewer
the grounds for non-recognition, the fewer the cases in which it will be justified to
control in the requested State the irreconcilability of the judgment whose recognition is
sought with a previous decision given in a Member State.

When the previous irreconcilable decision was handed down in a third State, control by
the authorities of the requested State is compatible with the principle of mutual
recognition, since the verifications carried out in the State of origin and in the State of
destination are different. Since the irreconcilable decision was given in a non-Member
State, its recognition in the Member States will be governed by the internal rules of each
of them. This entails that the conditions for the recognition in the State of origin of a
decision given in a non-Member State are not the same as the conditions for the
recognition of the same decision in the State of destination. It is therefore possible for a
judgment given in a non-Member State not to be recognised in the State of origin, but to
be recognised in the State of destination.
Of course, if the scope of Regulation 44/2001 is extended so as to include recognition
and enforcement of judgments given in third States54, the ground for non-recognition
based on the irreconcilability with a decision given in a non-Member State would
become incompatible with the principle of mutual recognition. Indeed, in this case the
rules applied by the authorities of the State of origin and the rules applied by the
authorities in the State of destination would be the same. However, such an extension of
the scope of the Regulation is currently not likely, since the proposal of the Commission
54

See MIGUEL ASENSIO P.A. DE (note 6), pp. 460-466. See also Question 2.3 of the Green Paper on the
review of Regulation 44/2001.

19

on the review of Regulation 44/200155 does not apply to recognition and enforcement of
judgments given in third States.

As we have seen, the grounds for the refusal of recognition established by Articles 34(3)
and 34(4) are only partially compatible with the principle of mutual recognition. To be
sure, it is coherent with mutual recognition to refuse recognition when the irreconcilable
judgment is either subsequent to the judgment whose recognition is sought, or when it
was handed down in a non-Member State, as well as in cases where the irreconcilable
judgment was given in a Member State and its recognition was impossible in the State
of origin. But aside from these cases, this ground for non-recognition is not compatible
with the principle of mutual recognition.

d) Inappropriate service

Article 34(2) of Regulation 44/2001 provides a defence against recognition and
enforcement based on inappropriate service to the defendant. This ground for the refusal
of recognition is coherent with the principle of mutual recognition, since, as we will see,
the control carried out in the requested State is not a mere repetition of the controls
already done in the State of origin.
As it is widely known, in Regulation 44/2001 the ground for non-recognition based on
defective service to the defendant requires, firstly, that the judgment was given in
default of appearance; secondly, that the defendant was not served with the document
which instituted the proceedings (or equivalent document) in sufficient time and in such
a way as to enable him to arrange for his defence; and thirdly, that the defendant did not
fail to commence proceedings to challenge the judgment in the State of origin when it
was possible for him to do so. If any one of these requirements is not fulfilled,
recognition must be granted. But none of these conditions can be properly controlled in
the State of origin: indeed, usually the proceedings can go on even if the defendant fails
to appear56, and effective service is not always a necessary condition in order to give a
judgment57.
55

Supra note 18.
See RODRÍGUEZ VÁZQUEZ MªA., Denegación de la eficacia de sentencias europeas por indefensión del
demandado, Barcelona 2001, pp. 35-40.
57
See Articles 26(3) and 26(4) of Regulation 44/2001. These provisions establishes that Article 19 of
Council Regulation 1348/2000 of 20 May 2000 [now Article 19 of Council Regulation 1393/2007; see
56

20

As the ground for the refusal of recognition is not a repetition of a control already
carried out in the State of origin, this obstacle to recognition is compatible with the
principle of mutual recognition. However, the situation would change if Article 26 of
Regulation 44/2001 was reviewed so as to eliminate the possibility of giving a judgment
when the defendant was not served in sufficient time and in such a way as to enable him
to arrange for his defence. Should this be the case, then the ground for the refusal of
recognition based on defective service would be contrary to the principle of mutual
recognition.
Although the control of the service is –as we have just seen– compatible with the
principle of mutual recognition, the proposal of the Commission on the review of
Regulation 44/200158 eliminates this control59. The defendant who did not enter an
appearance in the Member State of origin would nevertheless have the right to apply for
a review of the judgment before the competent court of the State of origin60. The basis
of this application would be that the defendant “was not served with the document
instituting the proceedings or an equivalent document in sufficient time and in such a
way as to enable him to arrange for his defence” or that “he was prevented from
contesting the claim by reason of force majeure or due to extraordinary circumstances
without any fault on his part”. The application would not be accepted if the defendant
failed to challenge the judgment when it was possible for him to do so.

e) Public policy

As we have previously pointed out, public policy is the ground for non-recognition that
requires more attention when examining the way in which the principle of mutual
recognition affects the recognition and enforcement of foreign decisions. Nonrecognition based on contrariety with the public policy of the requested State fulfils

Annex III of the latter Regulation] and Article 15 of the Hague Convention of 15 November 1965 on the
Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters apply when the
document instituting the proceeding or an equivalent document had to be transmitted to a Member State
or to a State party in to the Hague Convention. According to Article 19 of Regulation 1393/2007 and
Article 15 of the Hague Convention, is it possible to give a judgment even if no certificate of service or
delivery has been received.
58
See supra note 18.
59
With the exception of judgments concerning defamation cases and compensatory collective redress
cases. See supra note 19.
60
See Art. 45.

21

different objectives, all of which are highly relevant. On the one hand, this control
enables States to make sure that foreign judgments are not recognised when this
recognition would be contrary to human rights law61; and on the other hand, this ground
for the refusal or recognition prevents a collision between EU law and national
constitutions62. We will not directly consider public policy from this point of view,
since the purpose of this article is to confront the grounds for non-recognition with the
principle of mutual recognition; however, it will be inevitable to take into consideration
these implications of the public policy exception to recognition.

Controlling whether the recognition of a decision is contrary to the public policy of the
requested State will be compatible with the principle of mutual recognition if this
verification is not a mere repetition of a control already done in the State of origin.
Thus, if a control is a mere reconsideration of a previous control, the principle of mutual
recognition requires its abolition, i.e., the elimination of the second control.
In the case of the recognition in a Member State of a judgment given in another
Member State, we must take into account that an important part of public policy will be
common to both the State of origin and the requested State. Indeed, the protection of
human rights, which constitutes the core of public policy nowadays in Europe, is based
in all State Members on the same rules, particularly on the European Convention of
Human Rights63. As we have already seen, the principle of mutual recognition forbids
the reiteration in the requested State of the controls that have already been carried out in
the State of origin. Therefore, it would be incompatible with mutual recognition to deny
recognition on the basis that a foreign judgment is contrary to public policy if the
ground for such contrariety is a rule that should have been applied in the State where the
judgment was given.
This result does not change even if the authorities of the State of origin made a “bad”
application of the rule64. The principle of mutual recognition relies on mutual trust, i.e.
on the assumption that the authorities of the State of origin and the authorities of the
State of destination both legitimately apply the rule. If the rule is the same in the State
61

See e.g. the contribution of the United Kingdom to the Green Paper on the review of Regulation
44/2001 (http://ec.europa.eu/justice/news/consulting_public/news_consulting_0002_en.htm). The United
Kingdom makes clear that it is necessary to ensure that Member States are able to comply with their
obligations under the European Convention on Human Rights (number 6 of the contribution).
62
Cf. ORÓ MARTÍNEZ C. (note 23), p. 219.
63
See, e.g., CUNIBERTI G./ RUEDA I. (note 23), p. 9.
64
For a different approach see CUNIBERTI G./RUEDA I. (note 23), p. 9 and references in footnote 42. See
also ORÓ MARTÍNEZ C. (note 23), p. 216.

22

where the judgment was given and in the State where recognition is sought, there is no
reason to think that the authorities of the requested State are better placed than the
authorities of the State of origin to make a “correct” application of the rule.

Nevertheless, what we have just said does not entail that the principle of mutual
recognition requires the abolition of the ground for non-recognition based on the
contrariety of the recognition (or enforcement) of the foreign judgment with the public
policy of the requested State. Public policy is more than the international regulation of
human rights: to be sure, it also covers other matters and, more importantly, in all
countries the regulation of human rights is not limited to international rules65. There are
also national regulations that affect this matter, and these national rules on human rights
are usually also considered as a part of public policy. Hence, the control of public policy
will be compatible with the principle of mutual recognition when the refusal of
recognition relies on the part of public policy of the requested State which differs from
the rules of the State of origin. The public policy ground for non-recognition or nonenforcement of foreign decision will therefore only be compatible with the principle of
mutual recognition provided that this control is limited to the particularities of the
public policy of the requested State, and thus as long as the control of the part of public
policy that is common to the State of the origin and the State of destination is forbidden.
The proposal of the Commission on the review of Regulation 44/200166 fully maintains
this control, on a transitional basis, for judgments concerning privacy and rights relating
to personality and in collective redress cases67, and it partially maintains it in the
remaining matters. Art. 46 allows a party “to apply for a refusal of recognition or
enforcement when such recognition or enforcement would not be permitted by the
fundamental principles underlying the right to a fair trial”. Of course, public policy is
more than the right to a fair trial, but so far procedural rights have been the most
relevant issue in the operation of Regulation 44/2001. Therefore, the provision of Art.
46 should suffice to solve most of the cases where recognition or enforcement in a
Member State of a judgment given in another Member State would violate the public
policy of the former. The question, however, is what should be done if, in a single case,
65

See ORÓ MARTÍNEZ C. (note 23), pp. 220-221. The author shows how at present it is still not possible
to rely on a European public policy, common to all Member States.
66
See note 18.
67
See supra note 19.

23

the recognition or enforcement of a judgment given in a Member State is contrary to the
public policy of the requested Member State, and Art. 46 does not apply. According to
the Regulation and to EU law, the recognition or enforcement has to be granted. On its
part, the national Constitution requires to refuse the recognition or enforcement. What
will the competent authority of the requested Member State do? It should be noted that,
in our view the answer to this question constitutes the key to a correct understanding of
the functioning of the European legal system as a whole, i.e., the sum of the legal
systems of all the Member States plus the legal system of the EU.

B. The quest for mutual trust

We have already pointed out the differences between the principle of mutual
recognition and mutual trust. From our point of view, both concepts must be carefully
distinguished. The principle of mutual recognition is a legal principle of EU law, a
cornerstone of the internal market and also a fundamental principle in the judicial
cooperation in civil matters68. Mutual trust is of a different nature. In one sense, mutual
trust can be understood as the obligation of all the authorities of a Member State to trust
the authorities of the other Member States, and therefore, to assume their decisions. In
this sense, mutual trust and mutual recognition are equivalent.
This being so, mutual trust is a legal obligation, but it can also be seen as a fact. In other
words: the authorities of one Member State must trust the authorities of the other
Member States; but do they really trust them? We must point out that the answer to this
question has no legal consequences. If the authorities of a Member State assume the
decisions given by the authorities of another Member State, it is irrelevant whether the
authorities of the requested State actually trust the authorities of the State of origin.
Thus, the existence of genuine trust between the authorities of the Member States is not
a legal requirement for the effectiveness of the principle of mutual recognition.
Nevertheless, it is of course very relevant from a political point of view, and it must be
taken into consideration in order to orientate the legislator. The question is then how to
make mutual trust become real, i.e., how to achieve actual mutual trust.

68

See supra footnote 36.

24

One of the measures that it could be advisable to adopt would be to carefully review the
existing instruments. We have already seen that the Council recommended this review
in 200469, something which is nowadays even more necessary. Of course, this review
should not consist in merely confirming that decisions given in a Member State are
usually recognised and enforced in other Member States without problems. In the case
of the European Enforcement Order (EEO), the problem is that even when an EEO has
been inappropriately granted in the State of origin, its recognition and enforcement in
another Member States is mandatory. Therefore, the review we call for must consist of a
thorough examination of the whole proceeding: that it so say, also examining, e.g.,
whether decisions were correctly certified as a EEOs or, on the contrary, whether
certifications were granted in relation to judgments that did not fulfil the requirements
to become an EEO70.
This verification is important, because –although it may be nothing but an “urban
(legal) legend”– it is sometimes said that there have been cases of judgments that did
not arise from uncontested claims but which were nevertheless certified as EEOs. And
once the judgment has been certified as an EEO, there is no possibility of contesting the
correctness of the certification in the requested State71. Of course, it is possible to
contest the EEO in the State of origin72, but this possibility must be used only very
exceptionally. The abolition of the grounds for non-recognition is only advisable when
the authorities of the State of origin actually act correctly; simply establishing that all
authorities of the Member States must trust the authorities of the rest of Member States
is not enough. Mutual trust should be real. Otherwise, the system could collapse at any
moment.

69

See supra footnote 7.
This was already proposed by the AEJI in its contribution to the Green Paper on the review of
Regulation 44/2001 (see supra footnote 23), p. 1.
71
However, the European Parliament considers that an exceptional proceeding in the State where the
enforcement is sought must be possible. See the 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 (supra footnote 23), point 2:
“Calls for the requirement for exequatur to be abolished, but considers that this must be balanced by
appropriate safeguards designed to protect rights of the party against whom enforcement is sought, takes
the view that provision must be made for an exceptional procedure available in the Member State in
which enforcement is sought.” This was also suggested by the contribution of the Council of Bars and
Law Societies of Europe to the Green Paper on the review of Regulation 44/2001
(http://ec.europa.eu/justice/news/consulting_public/news_consulting_0002_en.htm). See point 1.4 of the
contribution.
72
See Article 10 of Regulation 805/2004.
70

25

How would it be possible to achieve real mutual trust? The review of the present
situation would be a good start. But obviously, once the picture is clear enough, it
would be necessary to implement some measures – measures that would not be directly
linked to the rules on recognition and enforcement of decisions. Indeed, these measures
should be related with the integration of the judicial structures of the Member States.
Without a certain degree of integration, mutual trust will only be a mere rhetorical
argument73.
The integration of the judicial structures of the Member States is not an objective of the
European Union at the present stage; but I think that it would be advisable to begin to
consider this possibility. For example, it could be possible to establish that the
certification that must be granted to the judgment in the State of origin74 should be made
by an EU authority, rather than by the authorities of the State of origin75.
Another possibility would be to establish that issues such as the nullity of the foreign
judgment or the defectiveness of the certification should be raised before an EU
authority in the State of destination, in order to avoid the problems and expenses
derived from the obligation to litigate in the State of origin.
The proposal of the Commission on the review of Regulation 44/200176 explores
another way of integrating the judicial structures of the Member States. The proposal
establishes an obligation of communication between courts in different States. In this
sense, Art. 45 is particularly relevant. According to Art. 45(3), the application for a
review of a judgment in default (either on the basis of an inappropriate service of the
document instituting the proceedings, or when the defendant was prevented from
contesting the claim by reason of force majeure or due to extraordinary circumstances)
may be submitted to the competent court of the Member State of enforcement. This
court shall transfer the application to the competent court in the Member State of

73

See the contribution of the AEJI to the Green Paper on the revision of Regulation 44/2001 (note 23), p.
2. The link between the reduction of the grounds for the refusal of recognition and the integration of
judicial structures was already advanced by ARENAS GARCÍA R., ‘La litispendencia internacional. El
artículo 21 del Convenio de Bruselas de 1968 y el control de competencia del Tribunal de origen.
Comentario a la STJCE de 27 de junio de 1991’, Noticias/C.E.E. 1992, number 91/92, pp. 103-109, p.
108.
74
E.g., Annex V of Regulation 44/2001, or Annex I of Regulation 805/2004.
75
See the contribution of the AEJI to the Green Paper on the review of Regulation 44/2001 (note 23), p.
2.
76
See note 18.

26

origin77, which will be competent for deciding on the review of the judgment. As we
have just seen, the obligation to contest the judgment in the State of origin could
become an excessive burden for the party against whom recognition or enforcement is
intended; but if this party has the possibility to submit an application in the State of
enforcement, it will be easier to admit that the competence to decide over the
application remains with the authorities of the State of origin.
In the proposal we can find more examples of direct communication between courts of
different States78, but we will not consider them here. Our intention is simply to point
out that the proposal shows an initial, yet still weak, integration between the judicial
structures of the Member States. This integration is limited to the communication
between competent authorities, but if we consider it as a first step, we can assume that
this is a step in the right direction.

To conclude, we would like to stress that the possibilities of integration of judicial
structures that we have previously advanced are nothing but initial approaches. The aim
of this article is not to analyse mutual trust, but to distinguish it from mutual recognition
and to underline the different nature of both concepts. Since the latter (mutual
recognition) is more useful for lawyers than for politicians, and the former (mutual
trust) is more interesting for politicians than for lawyers, this is the point in which this
piece of work, which is intended to be an article about law, must be concluded.

IV. Conclusion

The abolition of exequatur can be understood in two different ways: on the one hand,
we can consider the abolition of the exequatur as a procedure (formal exequatur); on the
other hand, we can see it as the abolition of all the grounds for the refusal of
recognition.
The abolition of exequatur as a procedure does not raise particular problems. The
grounds for non-recognition can be controlled in the enforcement procedure, and thus
the abolition of the exequatur procedure does not imply a change in the essence of the
77

Art. 87 establishes that the Member States shall communicate to the Commission “the means of
communications accepted in the Member State of origin for receiving applications for the review pursuant
to Article 45”.
78
See Arts. 29(2) or 31.

27

system of enforcement. However, it would be advisable –if the exequatur as a procedure
were to be abolished– to maintain the possibility for interested parties to apply for a
decision on recognition in a procedure where the question of the recognition of the
judgment would be the principal issue.
The abolition of the grounds for the refusal of recognition poses more problems than the
mere abolition of the proceeding of exequatur. The principle of mutual recognition is
often invoked in order to justify the free movement of judgments in Europe. In this
article we have tried to show how the principle of mutual recognition affects the
recognition and enforcement of judgments in the EU. We have reached the conclusion
that some grounds for non-recognition are not compatible with the principle of mutual
recognition. The examination of the jurisdiction taken by the court of the State of origin
is not compatible with the principle of mutual recognition, with the exception of the
case established in Article 72; the ground for the refusal of recognition based on the
conflict with another decision is only compatible with the principle of mutual
recognition in two cases: when the conflicting decision was given after the decision
whose recognition is sought, and when the conflicting decision was given in a nonMember State. The ground of non-recognition based on the inappropriate service to the
defendant is compatible with the principle of mutual recognition if a judgment could be
given in the State of origin even in the absence of service. Finally, the refusal of
recognition based on public policy grounds is compatible with the principle of mutual
recognition only as long as there is a difference between the public policy in the State of
origin and the public policy in the requested State.
Mutual trust between the authorities of the Member States is an obligation, but it is also
a fact. The abolition of all the grounds for non-recognition in the absence of genuine
mutual trust between these authorities is possible, but probably not advisable.
Strengthening mutual trust requires a careful review of the operation of the existing
instruments, and also a certain degree of connection between the judicial systems of the
Member States.

Dr. Rafael Arenas García is Professor (Catedrático) of Private International Law at the
Universitat Autònoma de Barcelona (Barcelona, Spain).

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