As from 21st
October 2005 EU Regulation N. 805/2004 applies in
civil and commercial matters implementing the principle of mutual recognition
of judicial decisions as endorsed by European Council at the Tampere meeting on
The Regulation created for the first
time a European Enforcement Order (EEO), aimed at promoting the free
circulation of judgments, court settlements and authentic instruments
throughout all EU Member States, with the exception of Denmark.
application is limited to “uncontested claims”, that are the cases where the
defendant either has agreed to the debt in court proceedings or has not appeared
in court when the claim is heard.
then on a judgment concerning an uncontested claim delivered in a Member State
can be certified as a European Enforcement Order upon application to the court seized
of the proceedings, pursuant to the requirements set out in article 6 and the
compliance with the minimum standards laid down in chapter III of EU Regulation.
effect of such a certification is that the judicial decision shall be
automatically recognized and enforced in another EU Member State without any
checks and intermediary measures in the Member State in which the enforcement
Regulation N. 805/2004 is considered a milestone in going over the so called
“exequatur procedure”, because it enables creditors to obtain quick and
efficient enforcement within European Union and without involving the courts in
the Member State where enforcement is applied for.
fact, on one hand, the Regulation at issue provides clearly for the abolition
of the exequatur, especially where it establishes that recognition and
enforcement in the other Member State are admitted “without the need for a
declaration of enforceability and without any possibility of opposing its
recognition” (art. 5).
yet, on the other hand, the EU Regulation sets out that enforcement procedures
are governed by the law of the Member State of enforcement and, moreover, that
a judgment that has been certified as EEO by the court of origin should be
treated as if it had been delivered by a court in the member State in which
enforcement is sought (art. 20, § 1). Thereby, it has also to be enforced under the same conditions as any other
judgment handed down in that Member
implementation of the abovementioned provisions raises an issue in those EU
Member Countries where, to be enforceable by national law, judgments, orders
and other judicial decisions taken by courts must have a clause added to that
effect by the clerk of court.
requirement is needed, for instance, by Belgian, Italian and French civil
procedure code. Hence
the questions: is such a clause undue for enforcement
of a foreign judicial decision certified as EEO, having regard to the abolition
of exequatur set out in article 5 of EU Regulation? Or is it still to be added
pursuant to national law of enforcement and complying with article 20 of EU
this point legal consultants and law researchers are split. In fact,
there are experts that think that the clause due by
national law to give enforceability to a judicial decision must be added in any
case, and so when a decision certified as EEO has to be enforced as well (PEROZ,
Jour. Dr. intern., 2005, n° 71;
BASTIANON, Brevi note sul regolamento UE n. 805/2004 che istituisce il titolo
esecutivo europeo per i crediti non contestati,
Dir. Un. Eur., 2005, 03, p. 473). This opinion rests upon consideration
that EU Regulation N. 805/2004 has not provided for a European declaration of
enforceability; therefore the Regulation at issue does not delete any further
requirement that make a title enforceable by the law of the Member State where
enforcement is sought.
Another group of professionals
observes that the implementation of the principle of the mutual recognition of
decisions in civil and commercial matters entails in its first stage a complete
abolition of exequatur.
this end EU Regulation N. 805/2004 goes beyond the lack of unification of the
national rules on civil procedure and, as a consequence, a decision certified
as EEO does not need any further clause or measure to be enforceable in the
Member State of enforcement.
this of point of view it is stressed that European Enforcement Orders are
national judgments already qualified by the Regulation as able to circulate
freely and to be enforced within all European Union, without the need for any
requirement for enforceability that the national law of another Member States
provides for (VAN DROOGHENBROECK-BRIJS, Un
titre exécutoire européen, Le dossier du JT 2006, pp. 213-215; OLIVIERI,
Il titolo esecutivo europeo. Qualche considerazione sul Reg. CE 805/2004 del 21 aprile 2004, on [->www.iudicium.it]).
One of the first ruling on the
question at issue was delivered by the Court of Milan, which stated that a
judicial decision certified as European Enforcement Order does not need to be
supplied with a declaration of enforceability in the Member State of enforcement
(Milan Civil Court, 30/11/2007).
Italian judges highlighted that the compliance of the judicial decision with
the requirements and the minimum standards set out for issuing EEO certificate
is a guarantee as strong as to assure direct and automatic enforceability to
European Enforcement Order within European Union.
that, notwithstanding the
Milan Court took the “right way” to fulfill the main purpose of EU Regulation
N. 805/2004, a real abolition of exequatur and a deeper judicial cooperation in
civil matters shall be reached only through the adoption of European common rules
on civil procedure law.
step that could definitely allow a faster circulation and enforcement of
judgments within European Union, preventing at the same time a lot of
unexpected issues that can arise even from a standard clause due to enforce a judicial