CELEX: 62010CJ0139
Judicial cooperation in civil matters
Regulation (EC) No 44/2001
Enforcement
Grounds for refusing enforcement
Compliance, in the State in which it was delivered, with the judgment in respect of which the declaration of enforceability is sought

The present reference for a preliminary ruling concerns the interpretation of Article 45 of Council Regulation (EC) No 44/2001
of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001
L 12, p. 1).
The reference has been made in the context of proceedings between Prism Investments BV (‘Prism Investments’), a company governed
by Netherlands law, and Mr van der Meer, in his capacity as receiver in the liquidation of Arilco Holland BV (‘Arilco Holland’),
the Netherlands subsidiary of Arilco Opportune NV (‘Arilco Opportune’), a company governed by Belgian law, concerning enforcement
in the Netherlands of a judicial decision ordering payment of a sum of money delivered by a Belgian court.

Legal context
Recitals 16 and 17 in the preamble to Regulation No 44/2001 are worded as follows:
‘(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised
automatically without the need for any procedure except in cases of dispute.
(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment
given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued
virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the
court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.’
Chapter III of Regulation No 44/2001, which comprises Articles 32 to 56, sets out rules in respect of recognition and enforcement,
in the other Member States, of judgments given in a Member State.
Article 34 of that regulation provides:
‘A judgment shall not be recognised:
(1)      if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
(2)      where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings
or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the
defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
(3)      if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition
is sought;
(4)      if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause
of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition
in the Member State addressed.’
Article 35 of Regulation No 44/2001 provides:
‘(1)  Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided
for in Article 72.
(2)       In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to
shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.
(3)       Subject to paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public
policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.’
The enforcement procedure is governed by Section 2 of Chapter III of Regulation No 44/2001, which consists of Articles 38
to 52.
Article 38(1) of Regulation No 44/2001 provides:
‘A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application
of any interested party, it has been declared enforceable there.’
The wording of Article 40(3) of the Regulation is as follows:
‘The documents referred to in Article 53 shall be attached to the application.’
Article 41 of Regulation No 44/2001 provides:
‘The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review
under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled
to make any submissions on the application.’
Article 43 of Regulation No 44/2001 states:
‘(1)  The decision on the application for a declaration of enforceability may be appealed against by either party.
(2)    The appeal is to be lodged with the court indicated in the list in Annex III.
(3)       The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.
(4)       If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal
brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not
domiciled in any of the Member States.
(5)       An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against
whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given,
the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence.
No extension of time may be granted on account of distance.’
Article 44 of Regulation No 44/2001 provides as follows:
‘The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.’
Article 45 of the Regulation provides:
‘(1)  The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability
only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.
(2)       Under no circumstances may the foreign judgment be reviewed as to its substance.’
Section 3 of Chapter III of Regulation No 44/2001, which consists of Articles 53 to 56, lays down common provisions in respect
of recognition and enforcement.
Article 53 of Regulation No 44/2001 states:
‘(1)  A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies
the conditions necessary to establish its authenticity.
(2)       A party applying for a declaration of enforceability shall also produce the certificate referred to in Article 54, without
prejudice to Article 55.’
Article 54 of Regulation No 44/2001 provides:
‘The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested
party, a certificate using the standard form in Annex V to this Regulation.’

The dispute in the main proceedings and the question referred for a preliminary ruling
In 1990, the Finnish bank LSP made a loan of EUR 11 500 000 to Arilco Opportune. Arilco Opportune lent that sum to its Netherlands
subsidiary, Arilco Holland. The latter then transferred those funds to several companies governed by Netherlands law, including
Prism Investments, which received the sum of EUR 1 048 232.30.
By judgment of the Rechtbank van Koophandel te Brussel (Commercial Court, Brussels) (Belgium) of 14 January 2002, Arilco Opportune
was ordered to pay to LSP the sum lent in 1990. Arilco Opportune challenged that judgment before the Hof van Beroep te Brussel
(Court of Appeal, Brussels). During those appeal proceedings, Arilco Holland brought a cross appeal seeking, inter alia, an
order that Prism Investments should reimburse to it the sum of EUR 1 048 232.30. By judgment of 5 December 2006, the Hof van
Beroep te Brussel granted, inter alia, that request.
By decision of the Rechtbank ’s-Hertogenbosch (District Court, ’s‑Hertogenbosch) (Netherlands) of 1 August 2007, Arilco Holland
was declared insolvent and Mr van der Meer was appointed as receiver.
By application of 3 September 2007 to the Rechtbank ’s‑Hertogenbosch, the receiver applied to the judge responsible for granting
interim measures, pursuant to Article 38 of Regulation No 44/2001, for the judgment delivered on 5 December 2006 by the Hof
van Beroep te Brussel, so far as concerned the order that Prism Investments pay Arilco Holland the sum of EUR 1 048 232.30,
to be declared enforceable. That application was granted by order of 20 September 2007.
Prism Investments then brought, pursuant to Article 43 of Regulation No 44/2001, an action for annulment of that order for
enforcement before the Rechtbank ’s‑Hertogenbosch. It maintained, inter alia, that the judgment of the Belgian court had already
been complied with in Belgium by means of a financial settlement.
By order of 22 July 2008, the Rechtbank ’s‑Hertogenbosch dismissed the application made by Prism Investments, expressing the
view, inter alia, that, under Article 45 of Regulation No 44/2001, a declaration of enforceability can be revoked only on
one of the grounds specified in Articles 34 and 35 of that regulation. It noted that compliance with the obligations in question
did not come within any of those grounds and could not therefore be taken into account for the purposes of an appeal against
the declaration of enforceability, but only at the later stage of actual enforcement.
Prism Investments brought an appeal in cassation against that order before the Hoge Raad der Nederlanden (Supreme Court of
the Netherlands). In support of its appeal, it submitted that the granting of the declaration of enforceability was manifestly
contrary to public policy within the terms of Article 45, in conjunction with Article 34(1), of Regulation No 44/2001, in
that the judgment at issue had lost its force through compliance in Belgium and that enforcement in the Netherlands could
have no legal basis.
In its order for reference, the Hoge Raad der Nederlanden finds those arguments to be unfounded. It takes the view that the
defence that there has already been compliance with the judgment delivered in a Member State is not covered by the grounds
of refusal set out in Articles 34 and 35 of Regulation No 44/2001, in particular the ground of refusal relating to infringement
of public policy.
However, the Hoge Raad is unsure whether Article 45 of Regulation No 44/2001 must be interpreted as meaning that the court
dealing with an appeal under Article 43 or Article 44 of that regulation can refuse or revoke a declaration of enforceability
on grounds other than those set out in Articles 34 and 35. In particular, it is unsure whether the ground that there has already
been compliance with the judgment in the Member State of origin of that judgment can be advanced not only in a dispute relating
to enforcement, but also in actual enforcement proceedings.
In the light of those considerations, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following
question to the Court of Justice for a preliminary ruling:
‘Does Article 45 of Council Regulation (EC) No 44/2001 preclude the court with which an appeal is lodged under Article 43
or Article 44 of that regulation from refusing or revoking the declaration of enforceability on a ground, other than one of
those specified in Articles 34 and 35 of that regulation, which has been advanced against enforcement of the judgment declared
enforceable and which arose after that judgment had been delivered, such as the ground that there has been compliance with
that judgment?’

The question referred for a preliminary ruling
In order to answer the question referred for preliminary ruling, it should be noted, as a preliminary point, that, as stated
in recitals 16 and 17 in the preamble to Regulation No 44/2001, the rules on recognition and enforcement laid down by that
regulation are based on mutual trust in the administration of justice in the European Union. Such trust requires that judicial
decisions delivered in one Member State are not only recognised automatically in another Member State, but also that the procedure
for making those decisions enforceable in that Member State is efficient and rapid.
Such a procedure, according to the terms of recital 17 in the preamble to Regulation No 44/2001, may involve only a purely
formal check of the documents required for enforceability in the Member State in which enforcement is sought.
To that end, in accordance with Article 53 of Regulation No 44/2001, a party applying for a declaration of enforceability
is required to produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity, as well
as a certificate issued by the authorities of the Member State of origin. Under Article 40(3) of that regulation, those documents
must be attached to the application by that party.
Furthermore, as stated in Article 41 of that regulation, the authorities of the Member State in which enforcement is sought
must, at the beginning of the procedure, not do any more than ensure completion of those formalities with a view to issuing
a declaration of enforceability for that judgment. Consequently, in that procedure, those authorities may not carry out any
assessment of the elements of fact and law of the case decided by the judgment enforcement of which is sought.
The limited nature of that review is justified by the purpose of that procedure, which is not to initiate new proceedings,
but rather to agree, on the basis of mutual trust in the administration of justice in the Member States, to the judgment delivered
by a court or tribunal of a Member State other than the Member State in which enforcement is sought being enforced by means
of incorporation into the latter Member State’s legal order. That procedure thereby enables a judgment delivered in a Member
State other than the Member State in which enforcement is sought to have the effect in the latter Member State of a national
enforceable judicial decision.
In accordance with Article 43 of Regulation No 44/2001, the declaration of enforceability of a judgment delivered in a Member
State other than the Member State in which enforcement is sought may be the subject of dispute. The grounds for dispute that
may be relied upon are expressly set out in Articles 34 and 35 of Regulation No 44/2001, to which Article 45 thereof refers.
That list, the items of which must, in accordance with settled case-law, be interpreted restrictively (see Case C‑420/07
Apostolides
[2009] ECR I‑3571, paragraph 55), is exhaustive in nature.
In the present case, it is apparent from the order for reference that the ground for revocation of the declaration of enforceability
relied upon by the appellant in the main proceedings and relating to compliance with the judgment in the Member State of origin
– that is to say, Belgium – is not one of those grounds which the court or tribunal of the Member State in which enforcement
is sought – in the present case, the Kingdom of the Netherlands – has jurisdiction to review. The fact that that ground was
not raised before the Belgian court is irrelevant in that regard.
Furthermore, as the Advocate General has noted in point 47 of her Opinion, the argument of the appellant in the main proceedings
against the declaration of enforceability is derived from the alleged satisfaction of the claim at issue by means of a financial
settlement. However, in his written observations, Mr van der Meer, acting in his capacity as receiver in the liquidation of
Arilco Holland, challenges that financial settlement in detail. The answer to the question whether or not the requirements
of that financial settlement were fulfilled will therefore be neither straightforward nor swift and could require an extensive
examination of the facts regarding the claim in relation to which that financial settlement may have been reached and would
thus be difficult to reconcile with the objectives pursued by Regulation No 44/2001.
The United Kingdom Government observes that, in any event, in order to meet the objectives of the enforcement procedure, the
judgment at issue would have to be enforceable not only at the time at which the original judgment was delivered, but also
at the time at which the decision declaring that judgment to be enforceable was issued in the Member State in which enforcement
is sought. It would be contrary to the objectives pursued by Regulation No 44/2001 and to the letter of Article 38 thereof
for the court of that State to be required to uphold a declaration of enforceability even though the judgment in question
had been complied with in the Member State of origin and could no longer be enforced there.
In that regard, it must be noted that no provision of Regulation No 44/2001 permits the refusal or revocation of a declaration
of enforceability of a judgment that has already been complied with because such a situation does not deprive that judgment
of its enforceable nature, which is a characteristic specific to that judicial act.
By contrast, the fact that the judgment is unenforceable in the Member State of origin prevents enforcement in the Member
State in which enforcement is sought. According to the Court’s case-law, the enforceability of the judgment in question in
the Member State of origin is a precondition for its enforcement in the Member State in which enforcement is sought (see Case
C‑267/97
Coursier
[1999] ECR I‑2543, paragraph 23). In that regard, although recognition must have the effect, in principle, of conferring
on judgments the authority and effectiveness accorded to them in the Member State in which they were delivered (see Case 145/86
Hoffmann
[1988] ECR 645, paragraphs 10 and 11), there is, however, no reason for granting to a judgment, when it is enforced, rights
which it does not have in the Member State of origin or effects that a similar judgment given directly in the Member State
in which enforcement is sought would not have (see
Apostolides
, paragraph 66).
However, as the Advocate General has noted in point 18 of her Opinion, compliance with a judicial decision does not in any
way deprive that decision of its enforceable nature, or lead to its being given, at the time of its enforcement in another
Member State, legal effects that it would not have in the Member State of origin. Recognition of the effects of such a judgment
in the Member State in which enforcement is sought, which is precisely the subject of the enforcement procedure, concerns
the specific characteristics of the judgment in question, without reference to the elements of fact and law in respect of
compliance with the obligations arising from it.
Such a ground may, by contrast, be brought before the court or tribunal responsible for enforcement in the Member State in
which enforcement is sought. In accordance with settled case-law, once that judgment is incorporated into the legal order
of the Member State in which enforcement is sought, national legislation of that Member State relating to enforcement applies
in the same way as to judgments delivered by national courts (see Case 148/84
Deutsche Genossenschaftsbank
[1985] ECR 1981, paragraph 18; Case 119/84
Capelloni and Aquilini
[1985] ECR 3147, paragraph 16; and
Hoffmann
, paragraph 27).
The German Government submits that grounds of procedural economy ought to lead to the conclusion that the concentration of
defence pleas based on compliance with the judgment in question during appeal proceedings against the order for enforcement
makes it possible to avoid the supplementary phase of the enforcement procedure in the Member State in which enforcement is
sought. Were the position otherwise, that judgment would, admittedly, be declared to be enforceable after a formal review,
but enforcement of that judgment would thereafter have to be interrupted. Such a concentration of defence pleas solely during
the appeal proceedings against the order for enforcement would increase the efficiency of those proceedings and would prevent
a situation in which a judgment ordering a debtor to settle his debt is declared to be enforceable although it is not likely
to be enforced.
However, as has been pointed out in paragraphs 27 to 30 of this judgment, in so far as the enforcement procedure consists
of a formal review of the documents submitted by the appellant, a plea raised in support of an appeal brought in accordance
with Articles 43 or 44 of Regulation No 44/2001, such as the appeal based on compliance with the judgment in question in the
Member State of origin, would affect the characteristics of that procedure and would lengthen its duration, contrary to the
objectives of efficiency and rapidity laid down in recital 17 in the preamble to that regulation.
It follows from the foregoing that the answer to the question referred is that Article 45 of Regulation No 44/2001 must be
interpreted as precluding the court with which an appeal is lodged under Article 43 or Article 44 of that regulation from
refusing or revoking a declaration of enforceability of a judgment on a ground other than those set out in Articles 34 and
35 thereof, such as compliance with that judgment in the Member State of origin.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 45 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters must be interpreted as precluding the court with which an appeal is lodged under
Article 43 or Article 44 of that regulation from refusing or revoking a declaration of enforceability of a judgment on a ground
other than those set out in Articles 34 and 35 thereof, such as compliance with that judgment in the Member State of origin.
[Signatures]
*
Language of the case: Dutch.