Opinion of the Advocate General — ECLI:EU:C:2011:401
Date: 2011-06-16
Language of the case: Dutch
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, it remains to be repeated once more that the taking into account of substantive defences, which arose after the delivery of the judgment to be enforced and which concern the claim established in the judgment itself, in appeal proceedings under Article 43 et seq. of Regulation No 44/2001 would lead to an excessively long and inflated procedure, which would not be compatible with the idea of the procedure for the issue of a declaration of enforceability as envisaged by the regulation. Accordingly, the first sentence of Article 45(1) of Regulation No 44/2001 precludes the taking into account of such substantive defences. V – Conclusion 61. In light of the foregoing, I propose that the Court should reply to the request for a preliminary ruling in the following terms: 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 precludes a court with which an appeal is lodged under Article 43 or Article 44 of that regulation from reviewing the defence of the party against which enforcement is sought that it satisfied the claim established in the judgment to be enforced after that judgment had been delivered, in the case where that defence is the subject of dispute between the parties. 1 – Original language: German. 2 – OJ 2001 L 12, p. 1. 3 – Case C‑420/07 Apostolides [2009] ECR I‑3571, paragraph 66. 4 – Emphasis added. 5 – Judgment in Apostolides (cited in footnote 3), paragraph 66. 6 – See to this effect, in relation to Article 31 of the Brussels Convention, Case C‑267/97 Coursier [1999] ECR I‑2543, paragraph 29. 7 – See my Opinion of 18 December 2008 in Apostolides, point 97. 8 – Judgment in Apostolides (cited in footnote 3), paragraph 70. 9 – See in relation to this, in the context of the Brussels Convention, the judgment in Coursier (cited in footnote 6), paragraph 24. 10 – See, inter alia, also in the German-language version: ‘nur aus einem der ... Gründe’; in the French: ‘que pour l’un des motifs’; in the Italian: ‘solo per uno dei motivi’; in the Dutch: ‘slechts op een van de … genoemde gronden’. 11 – Emphasis added. 12 – Jenard Report on the Brussels Convention (OJ 1979 C 59, pp. 1, 51) and Schlosser Report on the Convention on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention (OJ 1979 C 59, pp. 71, 134). 13 – Second paragraph of Article 34 of the Brussels Convention. 14 – See recitals 2, 6, 16 and 17 in the preamble to the regulation and the statements below with regard to the teleological interpretation. 15 – See, in this connection, Christian Kohler, ‘Systemwechsel im Europäischen Anerkennungsrecht’, in: Baur/Mansel (publishers), Systemwechsel im europäischen Kollisionsrecht, Munich 2002, pp. 147, 150. 16 – Peter F. Schlosser, EU-Zivilprozessrecht, 3rd edition, Munich 2009, Article 43, paragraph 14. 17 – See also, in this connection, Case 145/86 Hoffmann [1988] ECR 645. 18 – Coursier (cited in footnote 6), paragraph 33. 19 – Coursier (cited in footnote 6), paragraph 24. 20 – See Case C‑283/05 ASML [2006] ECR I‑12041, paragraph 23. 21 – See recital 16 in the preamble to the regulation. 22 – See, in relation to the refusal of recognition due to an infringement of public policy: Case C‑7/98 Krombach [2000] ECR I‑1935; Case C‑394/07 Gambazzi [2009] ECR I‑2563; and Apostolides (cited in footnote 3). 23 – See point 41 of this Opinion. 24 – See Annex III to Regulation No 44/2001. 25 – In relation to reform efforts to abolish the procedure for the issue of a declaration of enforceability, see the Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (2009) 174 final, p. 4: ‘Following the political mandate by the European Council in the Tampere (1999) and The Hague (2004) programs, the main objective of the revision of the Regulation should be the abolition of the exequatur procedure in all matters covered by the Regulation.’ 26 – See, in relation to this, the decision of the German Bundesgerichtshof (Federal Court of Justice) of 14 March 2007, Europäische Zeitschrift für Wirtschaftsrecht 2007, p. 445. 27 – See, in this connection, Burkhard Hess, ‘Die Zulässigkeit materiellrechtlicher Einwendungen im Vollstreckbarerklärungsverfahren nach Art. 43 ff. EuGVO’, Praxis des Internationalen Privat- und Verfahrensrechts, 2008, pp. 25, 28.