Towards an ‘Emergency Brake’ in EU Instruments on Free Movement of Civil Judgments

Abstract

This chapter proposes that European Union (EU) regulations on recognition and enforcement should retain an ‘emergency brake’ of the kind provided by the public policy exception: a ground for refusal of recognition or enforcement, capable of remedying fundamental rights violations, that can be applied by the Member State where recognition or enforcement is sought (the Member State addressed). An emergency brake is necessary because, in some cases, parties affected by the violations are unable to invoke a remedy in the Member State of origin, but also because Member States may not be able to critically assess and disqualify their own legal system and judicial culture. An important example of such a situation is where the judgment was obtained through corruption of the judiciary. This chapter discusses what such an emergency brake should look like. It concludes that it is preferable, with a view to protecting the right to a fair trial, to retain a public policy exception, instead of replacing this with an explicit reference to fair trial, The chapter also provides guidelines for the application of such an emergency brake. It then discusses the need for other more specific refusal grounds, such as the protection for the defaulting defendant provided by Article 45(1)(b) of the Brussels I bis Regulation. Finally, it discusses the specific context of judgments ordering the return of the child or access to a child.