Skip to content

How will Brexit affect the enforcement of judgments in EU Member States?

To assist our clients and friends in other jurisdictions, we previously prepared a detailed note "Top FAQs: Enforcement of an EU Member State Judgment in England and Wales". These procedures currently remain in force. However, as matters come to a head following the outcome of the EU referendum in the UK, it is worthwhile considering what may replace the current regime.

The current regime

The law relating to civil jurisdiction and the enforcement of judgments in EU Member States has undergone substantial change in recent years, with the entry into force of the Brussels I Regulation (Recast) (‘the Recast Regulation’) on 10 January 2015. The enforcement provisions in the Recast Regulation are less time-consuming than the procedure provided for by the 2001 Brussels Regulation (albeit that regime is still applicable in respect of certain judgments).

In summary, the procedure for enforcing the judgment of an EU Member State in England and Wales, under the Recast Regulation, requires the creditor to obtain a certificate from the court of origin certifying that the judgment is enforceable and containing details of the judgment, plus information about interest and costs. The creditor must then serve the certificate and judgment on the judgment debtor, and a translation (if requested), before enforcing the judgment. The judgment creditor is then entitled to enforce the foreign judgment as if it were an English judgment. This makes for a very simple and straightforward procedure for enforcing civil judgments from other EU Member States across the EU.

Post-Brexit Options

The Recast Regulation is the latest in a line of European legislative instruments governing both the allocation of civil and commercial jurisdiction among EU Member State courts and the recognition and enforcement of their judgments. This regulatory regime, which has been in force in the UK in various guises since 1987, is likely to be significantly modified, if not entirely replaced, as a result of Brexit.

The current Brussels I Regime will remain in force until the UK formally leaves the EU. Following this, there are a number of alternatives to the Recast Regulation. For example, the UK could: (i) agree to continue to apply the Recast Regulation (with appropriate amendments), (ii) sign and ratify the Lugano Convention 1988 (which currently applies to Norway, Switzerland and Iceland), (iii) sign and ratify the Hague Convention in its own right (as oppose to as an EU Member State) or (iv) sign and ratify an entirely new treaty.

What happens if there is no deal?

As with many matters concerning Brexit, there remains considerable uncertainty as to what the position will be after 29 March 2019. However, as the risk of a "no-deal Brexit" has increased the UK Government has produced a number of technical notices to provide guidance to businesses and citizens in the event of a "no-deal" outcome. On 13 September 2018 the UK Government published a guidance notice entitled Handling civil legal cases that involve EU countries if there’s no Brexit deal. The note explains that most of the EU rules operate on the basis of reciprocity between EU countries and states that "because of this loss of reciprocity, in the event of a no deal scenario, we would repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries". Unfortunately this guidance does not provide a great deal more certainty. However, the notice does confirm that the UK Government will take the necessary steps for the UK to re-join the Hague Convention in its own right. This is anticipated to come into force on 1 April 2019, potentially leaving a two-day gap of coverage, should the UK exit the European Union on 29 March 2019. The UK Ministry of Justice has drafted regulations (The Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018) to address this issue, but the solution will only bind UK Courts.

It is notable that the Hague Convention, as compared to the Recast Regulation, is narrower in its scope regarding the judgments to which it applies, and the enforceability of the interim protective measures it provides. In such cases, where the judgment falls outside of the scope of the Hague Convention, enforceability of English judgments in EU Member States will depend on the domestic law of each EU Member State in which enforcement is being sought and enforcement of EU Member State judgments in England and Wales would be undertaken in accordance with common law rules, usually requiring new proceedings to be brought. The process is likely to be slower, more complex and more expensive than under the current regime.

Whilst it is clear is that the current rules will change post-Brexit, and this will have consequences for parties seeking to enforce their EU Member State judgments in England and Wales (or vice versa), it still remains unclear exactly what will replace the current regime and how the situation will develop thereafter. It is therefore highly advisable for those contracting parties to seek advice on the applicable rules from local lawyers in the jurisdiction where the judgment and/or enforcement is likely to be sought.

 

 

How to find us:
London Bankside

Bankside Office

240 Blackfriars Road
London
SE1 8NW
DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

London Mayfair

Mayfair Office

6 Grosvenor Street
London
W1K 4PZ

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

Oxford

Oxford Office

6 Worcester Street
Oxford
OX1 2BX

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

Bankside Office

240 Blackfriars Road
London
SE1 8NW
DX 53 Chancery Lane

Telephone: +44 (0)20 7629 7411
Fax: +44 (0)20 7629 2621
Email: bh@boodlehatfield.com

Get directions

Contact us