I. In a nutshell
In a recent decision, the Court of appeal clarifies that it is for each Member State to decide for itself whether the enforcement of a foreign (non-EU country) decision would be contrary to its own public order, underlining that EU exequatur decisions granted by another Member State cannot circulate based upon certificate ex Article 53 as provided for in Annex I of Regulation (EU) 2215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels Recast Regulation”).
II. Context - Brussels I Recast Regulation and the free circulation of EU judgments
The Brussels Recast Regulation provides for the free circulation of judgments within the European Union. Article 39 formally abolishes the requirement of obtaining a declaration of enforcement (an exequatur) to give effect to a judgment in another Member State. Under the Brussels Recast Regulation, a creditor is only required to present a copy of the judgment and a certificate (as detailed in Annex 1 to the Regulation). The Regulation also provides for various grounds of refusal of recognition and/or enforcement of judgments however only upon the application of an interested party.
Importantly, an exequatur is still required for judgments and awards issued by a court situated outside the European Union. In Luxembourg, Article 678 and following of the New Code of Civil Procedure (Nouveau Code de Procédure Civile) provide for such (either full or simplified) exequatur proceedings, in which a Court safeguards that the recognition of a foreign judgment does not contradict Luxembourg public policy.
III. Exequatur sur exequatur ne vaut – No circulation of exequatur judgments
The Brussels Recast Regulation does not explicitly address the issue whether an exequatur judgment rendered by a national EU court enforcing a third country decision, can also freely circulate to other Member States, and be enforced by means of the certificate ex Article 53 as provided for in Annex I of the Regulation.
In this context, the Luxembourg Court of appeal has addressed this question in its decision from 13 January 2021. It did so by drawing a parallel to jurisprudence based upon earlier versions of the Regulation. In Owens Bank Ltd vs Bracco of 20 January 1992 it has been held that the (earlier version of the) Brussels Regulation, the Brussels Convention of September 27th 1968, did not apply to exequatur proceedings aimed at declaring enforceable judgments given in civil and commercial matters in a third State. In the absence of CJEU case law relating to the Brussels Recast Regulation and stating the contrary, the Court finds that the Owens case law still applies, as the notion of “decision” in the Brussels Recast Regulation remain unchanged in the Brussels Recast Regulation.
The Court of appeal therefore stated that an exequatur decision handed down in an EU Member State is outside the scope of the Brussels Recast Regulation.
The Court of appeal confirmed its position in a decision dated 31 March 2021, holding that an exequatur judgment rendered in one EU Member State cannot serve as title for an attachment of assets in another Member State. A third country judgment giving rise to attachment proceedings necessarily needs to be recognised in the same country where it is enforced.
The judgments rendered by the Court of appeal confirm, above everything, that the maxim known as “exequatur sur exequatur ne vaut” (“exequatur over exequatur is not valid”) applies in the current EU framework.