Systemwechsel im Internationalen Anerkennungsrecht: Von der EuGVVO Zur Geplanten Abschaffung des Exequaturs

Abstract

The communitarisation of judicial cooperation in civil matters by the Treaty of Amsterdam marks a new epoch in the unification of law in Europe. The European law of conflict of jurisdictions is affected by this, too. On 1 March 2002 Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters entered into force, thus replacing the European Convention of 27 September 1968 (the so-called Brussels Convention). However, the “re-enactment” of the Brussels Convention as a Community regulation is only the first move towards a profound change in the European law system of recognition, a change aimed at the abolition of the exequatur. In accordance with the principle of mutual recognition the objective is to create “freedom of movement for judgments” between the EU Member States (I). First this paper presents the procedure of recognition and enforcement of foreign judgments under the Brussels Convention as well as the modifications introduced by the new regulation (II), focussing on the catalogue of defences to recognition in article 27 of the Brussels Convention, which until now have had to be controlled ex officio by the judge responsible for the recognition of proceedings. Under the new regulation the test of defences to recognition is no longer applied ex officio but shifts to the appellate procedure (articles 43 and 45; III). The paper concentrates on the consequences of the new regulation for the equity of the procedure. Therefore problems resulting from the intended abolition of the exequatur are discussed (IV). Central features of the analysis are the ensuing curtailment of judicial review (and thus of legal protection) and the abolition of the ordre public test. The concludes that the latter cannot be given up as ultima ratio as long as there remain differences between procedural (and hence constitutional) standards in the EU member states, i.e. as long as there is no truly European judicial area (cf. Article 61 EC Treaty; V).