In order to reach an attractive, uniform legal system within the European Union (“EU”), at least two important instruments are necessary: (i) an assignment of sovereignty from a Member State to the EU; and (ii) the elimination of bureaucratic obstacles which impede easy, fast and effective enforcement proceedings. The current tendency within the EU is to meet these two requirements.
The adoption of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( “Regulation 1215/2012”), which repeals Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( “Regulation 44/2001”), is in line with the above mentioned aim of the EU.
The purpose of Regulation 1215/2012 is to facilitate and accelerate the circulation of judgments in civil and commercial matters within the EU. The Regulation entered into force on 10 January 2013 but it will not be applicable until 10 January 2015, except for the obligation of the Member States to provide (i) a description of their national rules and procedures concerning enforcement, including the authorities competent for enforcement; and, (ii) information on any limitations on enforcement, in particular debtor protection rules and limitation or prescription periods, which shall apply as from 10 January 2014.
The abolition of exequatur
The most significant advance is the abolition of exequatur. Under Regulation 44/2001, judgments rendered in Member States of origin must be submitted to the formality of exequatur in Member States of enforcement. A lawyer of the State of enforcement must be called upon and the Court of the State of enforcement has to check the enforceability and render a judgment permitting enforcement. This procedure is costly and time-consuming.
Under Regulation 1215/2012, judgments rendered in a Member State shall be recognized in other Member States without any special procedure being required. A judgment can be enforced in an EU Member State of enforcement on the mere production of a certified copy of the judgment pronounced in the Member State of origin. Notwithstanding this, it should be noted that the Court of the EU Member State handling the enforcement may refuse it in specific cases provided for in Regulation 1215/2012, i.e. when the decision to be enforced was given in default of appearance, if the defendant was not served with the document instituting the proceedings or with an equivalent.
In addition, if a judgment contains a measure or order that is not known in the law of the Member State addressed, that measure or order should, to the extent possible, be adapted to one which, under the law of that Member State, has equivalent effects. The way in which the adaptation is to be carried out, and by whom, is to be determined by each Member State. As a result, the enforcement of judgments in cross-border litigation will become less time-consuming and more cost-effective.
The removal of the barriers on the enforcement of judgments is also a hot topic in the Member States. An important example of this is the recent development of the Spanish law regarding freezing orders. By means of the Secretariat of the Administration of Justice Circular 2/2011 (“Circular 2/2011 de la Secretaría General de la Administración de Justicia”) ( “Circular 2/2011”), it is currently possible to obtain an automatic freezing order in Spain of bank accounts in the course of the enforcement of a judgment.
Freezing assets
Before the adaptation of this rule, in Spain, freezing debtors’ bank accounts within enforcement proceeding was a long and tedious process. The creditor had to provide the Court with the specific bank account to be frozen (usually unknown) or inform the Court of the banks with which the debtor could have an account. The Court would then address the banks in order to verify whether the debtor has any accounts there with positive balance. If such were the case, the Court would order the seizure of the outstanding amounts.
The new rule has significantly simplified this process and it has made it much more effective. The new system, called telematic freezing of assets (“embargo telemático”), allows an automatic freeze on the debtor’s accounts to the extent of the outstanding amounts in the banks which have subscribed the agreement (which is the vast majority of banks in Spain). The Creditor only needs to request from the Court, in the enforcement claim, to freeze the debtors account, and the Court will automatically do so, which will indicate any positive balance the debtor may have in the accounts of the banks subscribed, and proceed to seize such amounts.
In conclusion, both rules, Regulation 1215/2012 and Circular 2/2011, will save time and money as judgments from one EU Member State will be automatically enforceable in other EU Member States. In addition, enforcement proceedings, at least in Spain, are becoming simplified. Indeed, enforcement of judgments is on the rights tracks to become effective.
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