Free Movement of Judgments and the European Convention on Human Rights

Abstract

This chapter discusses the difficult question whether the ECHR may oblige EU Member States to refuse enforcement to a judgment from another (EU or non-EU) state. The difficulty here is that while EU Member States must respect the rights contained in the ECHR, they may have little or no discretion when they implement EU legislation. This is especially true where grounds for refusal have been abolished. This raises the question how the fact that EU law governs Member States’ actions relates to their individual responsibility under the ECHR. An analysis of ECtHR case law shows that the frame of reference differs according to whether the Member State enjoys discretion in their decision to enforce a judgment from another Member State. If no discretion remains for the Member States, the ECtHR applies what is called the ‘Bosphorus doctrine’. In its Povse decision, the ECtHR clarified that this frame of reference also applies in the context of cross-border enforcement in the absence of refusal grounds. This chapter analyses the Povse decision against the background of the Bosphorus judgment and other rulings in which the doctrine was applied. This chapter concludes that while the Povse decision leaves a number of matters unclear, it nevertheless provides valuable guidance for future legislation which facilitates free movement. The chapter sums up the preconditions Povse imposes on free movement of civil judgments. It also concludes that where refusal grounds exist, and EU Member States enjoy discretionary power to refuse enforcement, Member States’ actions are subject to full scrutiny by the ECtHR.