JURE summary



JURE summary

I - The granting of enforceability in a Member State of a judicial ruling issued in another Member State, where it is already enforceable, can only be refused, at an initial stage, due to a lack of formalities, namely a lack of documentation (Article 40(3), Article 41, Article 53(1) and (2) and Article 54 of Regulation (EC) No 44/2001 of 22-12-2000). The defendant against whom the execution is carried is not allowed to present any comments at this stage (Article 41).

II - However, any of the parties may appeal the decision to grant enforceability; an appeal is limited to points of Law - its grounds are expressly listed, in a complete and exhaustive manner, in Articles 34 and 35 of the Regulation (Articles 43, 44 and 45).

III. At this second stage of procedures (the stage of appealing the decision to grant enforceability), the fact that the foreign judgment contained the certificate required in Article 54 of the Regulation cannot limit the scope of the review of the foreign judgment by the court of the requested State, since it seeks to analyse the grounds of the appeal mentioned in Article 34(2).

IV. No rule of Regulation (EC) No 44/2001 expressly forbids the court of the requested Member State to verify the exactitude of the factual information contained in the aforementioned certificate, since Article 36 and Article 45(2) of the Regulation only forbids a review of the substance of the judgment of the Member State of origin.

V. Within the context of the grounds of appeal mentioned in Article 34(2) of Regulation (EC) No 44/2001, applicable due to Article 45(1), the court of the requested Member State is competent to autonomously evaluate the evidence and, if necessary, to verify if this coincides with the information of the certificate, in order to assess, firstly, if the absent Defendant was served with the document which instituted the proceedings or with an equivalent document and, secondly, if this eventual notification was done in a timely fashion as to enable him to arrange for his defence.

VI. Article 34(2) of Regulation 44/2001 requires the effective respect for the rights of defence of the defendant, if the notification was not made, or not made in time, although it does not necessarily presuppose the communication or notification of the act which initiated the proceeding is formally correct.

VII. The mutual trust in the administration of justice within the Community requires the efficiency and swiftness of the procedure to make a ruling issued in one Member State enforceable in another. However, this objective should not be pursued at the expense of any type of weakening of the defendant's right of defence.

VIII. The court of the requested Member State must refuse or revoke, in the case of an appeal, the enforcement of a foreign judgment issued in the absence of the defendant, 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.

IX. If there is no specific or autonomous document which proves that, within the procedure of the court of origin, the defendant was notified, in accordance with the demands of French law, and not even the judgment mentions this notification, and it was not proved that the defendant did not appeal the decision, even though it had been possible for him to do so, the decision to grant enforceability should be refused or revoked under the terms of Article 34(2) of Regulation (EC) No 44/2001.

X. It is also not possible to grant enforceability based on Article 34(1), due to manifest violation of Portuguese public policy, more precisely procedural public policy, due to the violation of the adversarial system and the principle of equality of defence, which are fundamental to Portuguese legal system and protected under Article 20(3) of the Portuguese Constitution and Articles 3, 4 and 547 of the Portuguese Código de Processo Civil (2013).