Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

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THE BRUSSELS Ibis REGULATION APPEARS ON THE HORIZON

Adrian Briggs*

Brussels Ibis Regulation

On 14 December 2010, the European Commission published\ its reasoned Proposal1 for amendments to the Brussels I Regulation. These would, if the Commission were to have its way, make radical changes to the law on jurisdiction and judgments in civil and commercial matters. Of course, the Commission may not prevail: the path to legislative reform in the EU is a twisted one, alongside which deals are done and individual agendas are pursued, but the Proposal sets out the Commission’s latest statement of measures deemed to be essential to prevent the hampering of the internal market.2 The proposals are numerous. Many of the modest ones are sensible and welcome, even though the consequential re-renumbering of the Articles is rather irksome. Of the more significant elements of the Proposal, twelve points capture their essence: that, at any rate, is the approach taken here. As the Commission regards its measures concerning the enforcement of judgments as having prime importance, these will be dealt with first.

Judgments from other Member States

1 Judgments from other Member States will be enforceable in the same way as local judgments, that is to say, without the need to obtain their registration: “exequatur” will no longer be required.
2 Enforcement shall be refused if the judgment is irreconcilable with one already given, but recognition may not be refused on the ground that recognition would be manifestly contrary to public policy.
3 Otherwise, a judgment debtor may apply, but may apply only:

It was the most open of secrets that the Commission wished to abolish the requirement that a judgment from another Member State undergo a process of registration, within which objections could be raised, before it was liable to be enforced in another Member State. If a judgment from the Birmingham District Registry of the High Court may be enforced in London, why not one from Bucharest? If execution may be levied on a judgment from the High Court in Liverpool or Leeds, why not one from Ljubljana or Eodz? Some will quietly wonder whether this question really needs to be answered. Nevertheless, it is asserted that mutual trust “has reached a degree of maturity”, which means that the time is ripe for such a step to be taken. The Commission reports that its proposal found wide support among those who were consulted about it.3

In this, as in everything else, it all depends on the question asked. If an English lawyer is asked whether it is frustrating that an English judgment has to be dragged through (or mired in) a process of exequatur before it can be enforced outside the United Kingdom, the answer is likely to be yes. But if asked whether he would be happy that the bailiff should be handed a copy of a judgment from a magistrate in Bulgaria and told to go levy execution, the answer may be that the day may come but has not dawned yet. Yet the proposal is that the judgment creditor may hand an untranslated4 copy of the judgment5 to “the competent enforcement authorities”,6 who would be required to get on with it.

The grounds of objection—it is debatable whether it is helpful to refer to them as rights—available to a judgment debtor will be significantly curtailed. Enforcement may no longer be resisted on the basis that recognition of the judgment would be manifestly contrary to public policy.7 It will be interesting to see how that plays out if, for example, claimants in Austria ever succeed in getting orders requiring the operator of power plants in the Czech Republic to abate their filthy nuisance,8 or claimants in Ireland succeed in getting an injunction to restrain BNFL from discharging radioactive waste into the Irish Sea,9 or a Greek judge makes an order requiring the Trustees of the National Gallery to return the Elgin Marbles: the proposition that mutual trust has risen to the point where such judgments might be enforced with calm is unconvincing. It would be surprising if the Member States were to assent to such a change. Enforcement may still be opposed on the grounds of irreconcilability with other judgments, as is currently provided for.10 It may also be opposed where “the fundamental principles underlying the right to a fair trial”

3. Proposal, pp 5–6.

4. Art 42(4).

5. With the exception of judgments in privacy, personality and defamation, and judgments in mass complaints of harm caused by unlawful business practices: Art 37(2) and Section 2 of Chapter III, for which the system in the Brussels I Regulation will be essentially retained.

6. Art 42.

7. The provision currently appearing as Art 34(1) is proposed for abolition.

8. See, for illustration only, Land Oberösterreich v. ČEZ as (Case C-343/04) [2006] ECR I-4557; Land Oberösterreich v. ČEZ as (No 2) (Case C-115/08) [2009] ECR I-10265.

9. A claim for such relief by four Irish residents failed in the Irish High Court in 2004, when the court ruled that it did not have jurisdiction over the defendant British Nuclear Fuels Ltd in relation to the claim made.