Droit Fiscalité belge

As from 21^st 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 October 1999.

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.

Its 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.

From 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.

The 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 is sought.

EU 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.

In 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).

And 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 State.

The 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.

This 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 Regulation?

On 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.

To 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.

From 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).

The 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.

We think 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.

A 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 decision.