This article addresses the legal background of the recognition and enforcement of judgements issued by the EU Member States in the United Kingdom after the withdrawal of the United Kingdom from the European Union (EU).
On 23 January 2021, the European Union (E.U), the European Atomic Energy Community (Euratom) and the United Kingdom (U.K), signed the Withdrawal Agreement which sets the terms of the withdrawal of the UK from the EU and the Euratom.
Αrticle 67(2)(a) of the Withdrawal Agreement on the recognition and enforcement of judgements, provides that in the UK, as well as in the Member States in situations involving the United Kingdom, the Brussels (Recast) Regulation No.1215/2012 will continue to apply to judgements given in legal proceedings instituted before the end of the transition period.
The recognition and enforcement of judgements from the Member States of the EU will continue to be governed by the Brussels (Recast) Regulation No.1215/2012, in respect to judgements issued by the Courts of the Member States in proceedings started before 31 December 2020.
In the Withdrawal Agreement, however, there is no provision regarding the legal status that will govern the recognition and enforcement of judgements given in actions registered after 1 January 2021.
On 30 December 2020, the United Kingdom and the European Union signed the Trade and Cooperation Agreement (TCA). Although, the Trade and Cooperation Agreement regulates the issue of judicial cooperation between EU and UK in criminal matters, it does not address the issue of recognition and enforcement of judgements in civil and commercial matters.
Proceedings initiated after 1 January 2021 will be subject to a combination of rules set out in the international conventions acceded to by the UK. In situations where the international conventions do not apply, the UK Courts will apply the Common Law Rules in deciding, the recognition and enforceability of judgements issued by the Courts of the Member States.
Lugano Convention 2007
On 2 April 2021, the UK applied to accede the Lugano Convention, which regulates the recognition and enforcement of judgements between EU Member States and the European Free Trade Association Countries- Iceland, Norway, Switzerland, and Denmark. The Lugano Convention will apply set of rules between the EU and the UK that are similar to the existing Brussels (Recast) Regulation No.1215/2012.
The approval of UK’ s application to accede the Lugano Convention is still pending and the final decision will be taken by the EU Council, which will form the decision of the EU.
In case the UK ‘s application is approved, the legal status that will apply to recognition and enforcement of judgements issued by the EU Member States after 1 January 2021 will be the one in place pre- Brexit.
Hague Convention 2005
On 1 January 2021, the UK acceded to the 2005 Hague Convention on it’ s own right, without obtaining the consent of the EU. In general, 2005 Hague Convention only applies where there is an exclusive jurisdiction clause entered into after the convention came into force for the country whose Courts are chosen.
The 2005 Hague Convention is not widely applicable as it can only be applied in specific cases. Article (2) of the 2005 Hague Convention provides certain cases to which the said convention cannot be applied (i.e. claims for personal injury brought by or on behalf of natural persons, the carriage of passengers and goods, wills and succession, the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs, liability for nuclear damage etc).
There is divergence of views between the UK and the EU as to when the UK became member of the 2005 Hague Convention. The EU Commission supports the view that the 2005 Hague Convention entered into force between EU and UK when the UK became a party in it’ s own right (in effect from 1 January 2021). On the other side, in the UK’s view, the 2005 Hague Convention entered into force from October 2015 when it originally became a party by virtue of it’ s EU membership. This issue will be resolved in the future by the Court of Justice of the European Union.
Common Law Rules
Regarding the judgements given in actions registered after 1 January 2021 by the courts of Member States and which they do not fall within the scope of 2005 Hague Convention, these can be recognised and enforced by the UK’ s Courts by filing an action before the Court.
The foreign judgement must be final, resolve the dispute on the merits and relate to a specific amount of money. Article 24 (1) of the Limitation Act 1980 provides that the action shall not brought against the judgement after the expiration of six years from the date on which the judgement became enforceable.
The judgement given by the UK’ s Courts on the recognition and enforcement of the foreign judgement can be appealed under the domestic law of the UK.
In conclusion, the judgements given by the courts of the Member States in legal proceedings instituted before 31 December 2020 will continue to be governed by the Brussels (Recast) Regulation No.1215/2012.
In relation to the judgements issued in legal proceedings instituted after 1 January 2021, the best possible solution would be the accession of the UK to the Lugano Convention because it mirrors the Brussels (Recast) Regulation No.1215/2012 and thus parallel procedures would be avoided. Finally, it would allow the U.K to preserve most of the litigation- related benefits it enjoyed as an EU Member State.
However, in the case the above are not applied, the judgements given by the courts of the Member States after 1 January 2021 can be enforced and recognized through Common Law provided that the relevant conditions apply.