Select Committee on European Scrutiny Thirty-Fifth Report





COM(02) 159

Draft Council Regulation creating a European enforcement order for uncontested claims.

Legal base:

Articles 61 (c) and 65 EC; consultation; unanimity


Document originated:

18 April 2002

Deposited in Parliament:

17 May 2002


Lord Chancellor's Department; Scottish Executive Justice Department

Basis of consideration:

EM of 27 May 2002

Previous Committee Report:


To be discussed in Council:

No date fixed

Committee's assessment:

Politically and legally important

Committee's decision:

Not cleared; further information requested




    1. Articles 61(c) and 65 EC empower the Community to adopt measures in the field of judicial co-operation in civil matters having cross-border implications and in so far as this is necessary for the proper functioning of the internal market. The European Council meeting in Tampere in October 1999 endorsed a programme of work on mutual recognition of decisions in civil and commercial matters, envisaging in particular a further reduction of the intermediate measures required to enable the recognition and enforcement in one Member State of a judgment delivered in another Member State. The draft Council Regulation introduces a common European Enforcement Order for uncontested claims.
    2. At present the recognition and enforcement of judgments in civil and commercial matters, including judgments in uncontested claims, are governed by Council Regulation 44/2001 ("the Brussels Regulation"), which replaced the Brussels Convention and came into force on 1 March 2002. Three features of the existing regime deserve mention. First, the Brussels Regulation did not abolish the intermediate measures (exequatur) required under the Convention to convert judgments delivered in one Member State into an enforceable order in another Member State. Under the provisions relating to the United Kingdom such a judgment can only be enforced when, on the application of an interested party, it has been registered for enforcement in that part of the United Kingdom (Article 38(2)). An application for registration has to be supported by relevant evidence in the form of a witness statement or an affidavit. Secondly, the Regulation provides for an exception on the grounds of public policy under which a judgment is not recognised or enforced if it is manifestly contrary to public policy in the Member State in which recognition is sought. Thirdly, under the Regulation the debtor has the right to challenge the declaration of enforceability in the Member State in which enforcement is sought.
    3. The proposed Regulation

    4. Article 1 states the objective of the draft Regulation:
    5. "The purpose of this Regulation is to create a European Enforcement Order for uncontested claims to permit the free circulation of judgments, court settlements and authentic instruments throughout all Member States by laying down minimum standards whose observance renders unnecessary any intermediate proceedings to be taken in the Member State of enforcement prior to recognition and enforcement."

    6. To achieve this end for uncontested claims in civil and commercial matters the draft Regulation envisages changes to the existing enforcement regime under the Brussels Regulation in all three respects identified above.
    7. Article 2 makes clear that the material scope of the draft Regulation is to be like that of the Brussels Regulation, so that it does not apply to revenue, customs or administrative matters nor to bankruptcy, social security or arbitration proceedings. Article 3 defines the circumstances in which a claim is to be regarded as 'uncontested'. These include the case where the debtor expressly agrees to the claim by way of admission or conclusion of a settlement, where the debtor has not objected to the claim in the course of proceedings and where the debtor no longer appears or is represented, having initially contested the claim[34].
    8. Article 4 sets out the concept of a European Enforcement Order for uncontested claims which, once certified by the court of origin, is to be recognised and enforced without any special procedure in the Member State of enforcement and, in particular, without the registration procedure required under the Brussels Regulation. Article 5 lists the requirements which, if met, oblige the court of origin to certify a judgment as a European Enforcement Order (EEO) upon application of the creditor. Once certified, the EEO will be enforceable throughout the EU without any further involvement of the judicial authorities in the Member State of enforcement. The most important of the requirements is that the judgment must have acquired the authority of a final decision in the Member State of origin.
    9. Article 8 of the draft Regulation removes the right of the debtor under the Brussels Regulation to appeal in the Member State of enforcement against the declaration of enforceability granted by the court there. If the debtor wishes to prevent a judgment from being certified as a European Enforcement Order he must contest the claim and thereby seek to exclude it from the ambit of the draft Regulation. An appeal against the Order itself is excluded.
    10. Articles 10 to 20 outline various minimum procedural requirements for the certification of an EEO. Article 11 sets out the various methods of service required for certification of an EEO, with Article 12 listing permissible methods of substitute service if none of the methods under Article 11 proves reasonably practicable. The provisions regarding service are subject to Article 15 which lays down minimum periods that must be allowed to the Defendant to arrange for the defence of the claim. Article 19 provides for the 'cure' of non-compliance with the minimum service standard if the judgment in the proceedings has been served in compliance with the requirements for service and provided that the debtor had the right to challenge the judgment by means of an ordinary appeal.
    11. Article 22 reaffirms the principle already contained in the Brussels Convention and the Brussels Regulation that under no circumstances may a foreign judgment be reviewed as to its substance in the country of enforcement. Article 22 extends this prohibition to the judgment's certification as an EEO, which is a corollary of the exclusion of an appeal against certification under Article 8.
    12. Finally, Article 30 (1) states that the provisions of the draft Regulation do not prevent the creditor from seeking enforcement of a judgment on an uncontested claim under the Brussels Regulation. The EEO is intended as an alternative and not as a substitute for the existing enforcement regime for uncontested claims.
    13. The Government's view

    14. In their joint Explanatory Memorandum of 27 May 2002 the Parliamentary Secretary at the Lord Chancellor's Department (Baroness Scotland) and the Minister of Justice for Scotland (Mr Jim Wallace), state that the proposed measure complies with the subsidiarity principle, that it has no major financial implications and would only require relatively minor amendments to rules of court. On this basis, the Parliamentary Secretary expresses the Government's general support for the draft Regulation as a welcome simplification of the procedure for recognition and enforcement of judgments on uncontested claims which may serve as a first step towards the progressive abolition of exequatur.[35]
    15. The Ministers do, however, express some concern about certain aspects of the proposal. In particular, they question the absence in the draft Regulation of any equivalent of the public policy exception in the Brussels Regulation, as follows:
    16. "The Government has raised the question whether a public policy exception ("ordre public") — as provided for in the Brussels regulation — needs to be retained as a safeguard against requiring automatic recognition of decisions in one Member State which are considered incompatible with fundamental legal principles in another Member State. The proposed Regulation does not, however, presently incorporate a public policy exception."

    17. The Ministers also note a degree of divergence between the methods of service required for the purpose of the Regulation and those required under domestic law to institute proceedings:
    18. "The purpose of the minimum standards proposed by the Commission in this Regulation would be to qualify a judgment for certification as a European enforcement order. There is no requirement to introduce them for purely domestic cases. With one exception, the minimum standards could be accommodated by the different legal systems in the UK without much difficulty. The exception is the proposed methods of service under Article 11, which do not appear to be consistent with service by first-class post. This may be a similar problem in Scotland where recorded delivery post is the normal method of service. The Government is considering the extent to which this difficulty could be overcome by the provisions in Article 19 allowing failure to meet the standard to be 'corrected' by serving the judgment to the required standard."

    19. The Ministers likewise note that the scope of the draft Regulation may be broader than the case where no response at all is elicited from the debtor; and that it would include those cases where the debtor responds admitting the claim, or fails to appear or be represented at the hearing, having initially disputed the claim.
    20. The Ministers further state that the proposed measure may serve as a useful confidence-building measure and as a first step towards the progressive abolition of exequatur within the EU. The Government would be seeking the views of those most directly affected by this proposal, such as members of the judiciary and the legal profession, process servers and court officers. They conclude by drawing attention to the fact that the Government has to indicate by 14 August 2002 whether the United Kingdom intends to opt in to the proposed Regulation.
    21. Conclusion

    22. In addition to asking if the Government intends to opt into this proposal, we have a number of concerns of detail.
    23. First, we ask the Ministers whether the Government will press for the inclusion of a public policy exception in the case of the proposed Regulation.
    24. Secondly, we note that the requirement in Article 11(1)(a) of the proposed Regulation, that receipt of documents served by post must be attested by a signed acknowledgement from the debtor, may prove to be more onerous than service by first-class or recorded delivery post, which are customary in the United Kingdom. We ask the Ministers whether they consider that the proposed methods of service may prove to be impracticable, and if so, whether this may not unduly restrict the effectiveness of the proposed legislation. We also ask if they consider that the provisions for the "curing" of non-compliance with minimum standards are too vague and open-ended to ensure the effectiveness of the proposed Regulation.
    25. Thirdly, we ask the Ministers if they agree that the term "uncontested claim" under the Regulation is too broad and if they consider it to include cases which are "uncontested" solely by reason of the fact that the debtor has failed to appear or be represented in proceedings subsequent to his initial defence of the claim.
    26. We shall hold the document under scrutiny pending the Ministers' reply.


34  This would seem also to apply to the case where a stay is lifted on proceedings without the debtor being informed. In the recent case of Maronier v Larmer (judgment of 29 May 2002) the Court of Appeal refused recognition to a judgment under the Brussels Convention on public policy grounds where the defendant was not informed of the lifting of the stay, but the present proposal would prevent recognition from being refused. Back

35  The procedure whereby a foreign judgement is approved for enforcement. Back

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Prepared 19 July 2002