JT Law's Sydney team

Since March 1 2002, European Union Regulation Number 44/2001 is in effect for all member states. This regulation replaced the previous Treaty of Brussels (with the exception of Denmark), regarding international jurisdiction and the enforcement and recognition of judgments in civil and commercial matters. This Regulation replaced the numerous international treaties among the member states and aims to simplify the requirements for the fast and simple recognition and enforcement of the judgments of the member-states that are bound by it. It must be noted that Regulation 44/2001 expressly states that it does not apply in the cases of regulating property rights that are based on a will, inheritance or marital relationship, nor in cases that concern bankruptcies, or dissolution of corporations that are bankrupt nor matters pertaining to social security.

The European Union Regulation, contrary to the Greek laws, expressly allows each party to argue the recognition of the foreign judgment on the merits or as a procedural matter. The Regulation's fourth Chapter, referring to the conditions of recognition and enforcement of foreign judgments (Articles 57 and 58) sets the conditions under which public documents and Court settlements can be declared executable. Regulation 44/2001 defines as public documents, those bearing the following three characteristics: 1) there is participation, during their issuance, of a public or other authority from the country of issuance, which participation also constitutes a verification of their validity, 2) the documents are genuine not only as to the signature but also as to their content and 3) they are executable in the member-state where they were issued. In this sense, public documents according to the Regulation are documents in the issuance of which there is participation from public officers, court secretaries, notaries, etc.

The only reason of no recognition or enforcement of foreign judgments, according to the Regulation, is their contradiction to the public order of the member-state where they will be enforced. However, this reason can only be examined after the filing of a relevant motion and not sua sponte. It must be noted that the Regulation is stricted on this issue from the Greek Laqos, since it requires that the public order be contradicted “obviously” by the execution or recognition of the subject judgment.

Contrary to what Greek laws mandated, the Regulation for the recognition of foreign judgments allows judgments that are not or cannot be final, such as preliminary decisions or decisions of evidentiary nature. Furthermore, the judgment must be issued in the name of a member-state. Therefore, decisions of an arbitrator or a tax, customs or administrative authority cannot be enforced. Finally it is worth noting that according to the Regulation, the court of the country where the judgment is sought to be executed may even consider a decision that has not been properly served “unless the defendant omitted to file an appeal against the decision, when he could have done so in his home country”. The authors of the Regulation deemed that a formal discrepancy in service of process cannot lead to the rejection of the recognition or enforcement, if said discrepancy had not obstructed the debtor from securing his defense.

It is also worth considering that the Regulation does not allow the judge of the country where enforcement is sought to check the jurisdiction of the Courts of the country of origin of the foreign judgment, unlike what Geek laws mandate.

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