knowledge 2 November 2018 |

Cross-Border Enforcement Within the EU May Still be Subject to Local Rules

In November 2013, an Italian property company, Al Bosco, obtained an order from an Italian District Court authorising it to obtain preventive attachment (similar to a Mareva injunction) in an amount up to €1 million against property of a German defendant, Gunter Hober.  In August 2014, that order was declared enforceable in Germany by a Regional Court in Munich under the Brussels I Regulation.¹ In April 2015, Al Bosco applied to the German Land Registry to register a mortgage against real property of Mr Hober’s in Germany, comprising an apartment and two parking spaces.

The application was rejected as being out of time. Under the German Civil Procedure Code, a preventive attachment order such as this may only be enforced within a time limit of one month from the date on which the order was issued or notified to the creditor.  The purpose of the German rule was to protect defendants so as to prevent summary decisions for interim relief remaining enforceable for a long period of time, while the position may have changed due to developments in the litigation.

The German Federal Court of Justice (Bundesgerichthof ) was uncertain whether the Brussels I Regulation prevented the national time limit being applied to a preventive attachment order issued in another Member State which had been declared enforceable in Germany, and referred the question to the CJEU. The CJEU held² that Brussels I does not preclude Member State legislation which provides for a time limit for the enforcement of a preventive attachment order from being applied in the case of an order adopted in another Member State which is enforceable in the Member State in which enforcement is sought.  The German rule did not relate to the issuing of the declaration of enforceability of the Italian decision, but related instead to enforcement in the narrow sense, an aspect which has not been harmonised by Brussels I and remains subject to national law.

Although recognition must in principle confer on judgments the authority and effectiveness they have in the Member State in which they are delivered, there is no reason for granting a judgment which is being enforced, effects that a similar judgment given in the Member State in which enforcement is sought would not have.  So foreign attachment orders from within the EU should be subject to the same national law (including any time limits) as domestic judgments. The CJEU did not consider that the national time limit created any real risk that enforceable foreign attachment orders from other EU Member States could not effectively be enforced (i.e. the time limit did not amount to a covert discrimination against foreign judgments from within the EU).

It is very important for plaintiffs and creditors seeking to enforce judgments within the EU not to be lulled into complacency by the passporting rights afforded by the Brussels regime.  While both interim and final judgments may be recognised and enforced cross-border subject to certain conditions being fulfilled, the rules of enforcement are the local rules and failing to understand how they operate may deprive the litigant of the benefits of having an enforceable order.