H Limited (Judicial cooperation in civil matters - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Concept of 'judgment' - Judgment) [2022] EUECJ C-568/20 (07 April 2022)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> H Limited (Judicial cooperation in civil matters - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Concept of 'judgment' - Judgment) [2022] EUECJ C-568/20 (07 April 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C56820.html Cite as: [2022] EUECJ C-568/20, ECLI:EU:C:2022:264, [2022] WLR 3513, [2022] 1 WLR 3513, [2022] WLR(D) 187, EU:C:2022:264

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Scope – Article 2(a) – Concept of ‘judgment’ – Order for payment made in another Member State after a summary contested examination of a judgment given in a third State – Article 39 – Enforceability in Member States)

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 23 September 2020, received at the Court on 2 November 2020, in the proceedings

composed of K. Jürimäe, President of the Chamber, N. Jääskinen, M. Safjan (Rapporteur), N. Piçarra and M. Gavalec, Judges,

– the German Government, by J. Möller, M. Hellmann and U. Bartl, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 December 2021,

1 This request for a preliminary ruling concerns the interpretation of Article 1, Article 2(a), Article 39, Article 42(1)(b) and Articles 45, 46 and 53 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 (OJ 2012 L 351, p. 1).

2 The request has been made in proceedings between J and H Limited concerning the enforcement in Austria of an order for payment issued by the High Court of Justice (England & Wales) (United Kingdom) (‘the High Court’) on the basis of two judgments delivered in Jordan.

‘(4) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.

(6) In order to attain the objective of free circulation of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding and directly applicable.

(26) Mutual trust in the administration of justice in the [European] Union justifies the principle that judgments given in a Member State should be recognised in all Member States without the need for any special procedure. In addition, the aim of making cross-border litigation less time-consuming and costly justifies the abolition of the declaration of enforceability prior to enforcement in the Member State addressed. As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed.

(34) Continuity between the [Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by the successive conventions on the accession of new Member States to that Convention (“the 1968 Brussels Convention”)], [Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)] and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the 1968 Brussels Convention and of the Regulations replacing it.’

‘This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’

(a) “judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.

For the purposes of Chapter III, “judgment” includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement;

(d) “Member State of origin” means the Member State in which, as the case may be, the judgment has been given, the court settlement has been approved or concluded, or the authentic instrument has been formally drawn up or registered;

(e) “Member State addressed” means the Member State in which the recognition of the judgment is invoked or in which the enforcement of the judgment, the court settlement or the authentic instrument is sought;

(f) “court of origin” means the court which has given the judgment the recognition of which is invoked or the enforcement of which is sought.’

‘A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.’

‘For the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with:

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and

(b) the certificate issued pursuant to Article 53, certifying that the judgment is enforceable and containing an extract of the judgment as well as, where appropriate, relevant information on the recoverable costs of the proceedings and the calculation of interest.’

‘On the application of any interested party, the recognition of a judgment shall be refused:

(a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;

‘On the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Article 45 is found to exist.’

‘Under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed.’

‘The court of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex I.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 By order for payment of 20 March 2019, the High Court ordered J, a natural person residing in Austria, to pay H Limited, a bank, the principal sum of 10 392 463 United States dollars (USD) (approximately EUR 9 200 000), together with interest and costs, pursuant to two judgments delivered on 3 May and 20 May 2013 by the Jordanian courts (‘the Jordanian judgments’). In addition, the High Court issued the certificate provided for under Article 53 of Regulation No 1215/2012.

13 H Limited applied for enforcement of that order for payment in the jurisdiction of the Bezirksgericht Freistadt (District Court, Freistadt, Austria) on the basis of Regulation No 1215/2012, producing inter alia the certificate referred to in Article 53 of that regulation.

14 By order of 12 April 2019, the Bezirksgericht Freistadt (District Court, Freistadt) granted H Limited leave, on the basis of the order of the High Court of 20 March 2019 and pursuant to Regulation No 1215/2012, to enforce that order with a view to recovering a claim of EUR 9 249 915.62 together with interest and costs. That court observed, inter alia, that the proceedings before the High Court had complied with the adversarial principle.

15 The appeal brought by J against that order of 12 April 2019 was dismissed by decision of the Landesgericht Linz (Regional Court, Linz, Austria) of 22 June 2020. After stating that the High Court order of 20 March 2019 constituted a judgment within the meaning of Article 2(a) of Regulation No 1215/2012, the appeal court stated that the certificate under Article 53 of that regulation, produced by H Limited, raised no doubts concerning the applicability of one of the grounds for refusal under Article 45 of that regulation.

16 J brought an appeal on a point of law before the Oberster Gerichtshof (Supreme Court, Austria).

17 That court inclines to the view that the principle of the exclusion of ‘double exequatur’ also applies to orders made by a court of a Member State on the basis of an action seeking enforcement of a foreign judgment, since the legal relationship underlying the debt recognised by a final judgment is not subject to a review as to substance. The decision at issue in the main proceedings does not therefore fall within the concept of a ‘judgment’ within the meaning of Article 2(a) of Regulation No 1215/2012.

18 In such a case, judicial review of the general conditions for enforcement under that regulation is not precluded. Accordingly, the referring court considers that the executing Member State may verify the information contained in the certificate provided for in Article 53 of Regulation No 1215/2012, with the result that the debtor can rely on the absence of the conditions for enforcement, for example because there is no judgment within the meaning of Article 2(a) of that regulation or that that regulation is not applicable.

19 However, the referring court notes that the correct application of EU law is not so obvious as to leave no scope for any reasonable doubt.

20 In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Are the provisions of [Regulation No 1215/2012], in particular Article 2(a) and Article 39, to be interpreted as meaning that a judgment that is to be enforced exists even if, in a Member State, the judgment debtor is obliged, after summary examination in adversarial proceedings, albeit relating only to the binding nature of the force of res judicata of a judgment given against him in a third State, to pay to the party who was successful in the third State proceedings the debt that was judicially recognised in the third State, when the subject matter of the proceedings in the Member State was limited to examination of the existence of a claim derived from the judicially recognised debt against the judgment debtor?

Are the provisions of Regulation No 1215/2012, in particular Articles 1, 2(a), 39, 45, 46 and 52, to be interpreted as meaning that, irrespective of the existence of one of the grounds set out in Article 45 of [that regulation], enforcement must be refused if the judgment under review is not a judgment within the meaning of Article 2(a) or Article 39 of [that regulation] or the application in the Member State of origin on which the judgment is based does not fall within the scope of [that regulation]?

(3) If the first question is answered in the negative and the second question in the affirmative:

Are the provisions of Regulation No 1215/2012, in particular Articles 1, 2(a), 39, 42(1)(b), 46 and 53, to be interpreted as meaning that, in proceedings concerning an application for refusal of enforcement, the court of the Member State addressed is compelled to assume, on the basis solely of the information provided by the court of origin in the certificate issued pursuant to Article 53 of [that regulation], that a judgment that falls within the scope of the regulation and is to be enforced exists?’

21 By its first question, the referring court asks, in essence, whether Article 2(a) and Article 39 of Regulation No 1215/2012 must be interpreted as meaning that an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State constitutes a judgment and is enforceable in the other Member States.

22 As a preliminary point, it must be recalled that, in so far as, in accordance with recital 34 of Regulation No 1215/2012, that regulation repeals and replaces Regulation No 44/2001, which itself replaced the 1968 Brussels Convention, the interpretation provided by the Court with regard to the provisions of the latter legal instruments also applies to Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’ (judgment of 10 March 2022, BMA Nederland, C‑498/20, EU:C:2022:173, paragraph 27 and the case-law cited).

23 That applies to Article 25 and Article 27(1) of that convention and Article 32 and Article 34(1) of Regulation No 44/2001, on the one hand, and Article 2(a) and Article 45(1)(a) of Regulation No 1215/2012, on the other.

24 As the Court stated in relation to Article 32 of Regulation No 44/2001, which is the provision equivalent to Article 2(a) of Regulation No 1215/2012, the concept of ‘judgment’ covers any judgment given by a court of a Member State, without any distinction being drawn according to the content of the judgment in question (see, to that effect, judgment of 15 November 2012, Gothaer Allgemeine Versicherung and Others, C‑456/11, EU:C:2012:719, paragraph 23).

25 It follows that that concept also includes an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State.

26 In accordance with the Court’s case-law, for such decisions to fall within the scope of Regulation No 1215/2012, it is sufficient if they are judicial decisions which, before their recognition and enforcement are sought in a State other than the State of origin, have been, or have been capable of being, the subject, in that State of origin and under various procedures, of an inquiry in adversarial proceedings (see, by analogy, judgment of 2 April 2009, Gambazzi, C‑394/07, EU:C:2009:219, paragraph 23 and the case-law cited).

27 That broad and autonomous interpretation is borne out by the system established by Regulation No 1215/2012 and by the objectives pursued by that regulation (see, by analogy, judgment of 15 November 2012, Gothaer Allgemeine Versicherung and Others, C‑456/11, EU:C:2012:719, paragraphs 26 and 28).

28 In the first place, as regards the objectives pursued by Regulation No 1215/2012, recital 6 sets out the objective of free circulation of judgments in civil and commercial matters. Furthermore, it is apparent from recitals 4 and 26 that that regulation seeks to simplify the formalities with a view to the rapid and simple recognition and enforcement of judgments from Member States bound by that regulation. As the Commission pointed out, a different interpretation of Article 2(a) of that regulation requires the concept of a ‘judgment’ to be linked to its content, which would run counter to that objective.

29 In the second place, as regards the system established by Regulation No 1215/2012, recital 26 underlines the importance of the principle of mutual trust between the courts of the Member States with regard to the enforcement of judgments, which presupposes that the concept of a ‘judgment’ is not interpreted restrictively.

30 That mutual trust would be undermined if a court of a Member State were able to deny that an order for payment – which a court of another Member State has made on the basis of final judgments delivered in a third State – was a ‘judgment’.

31 In short, a restrictive interpretation of the concept of ‘judgment’ within the meaning of Article 2(a) of Regulation No 1215/2012 would have the effect of creating a category of acts adopted by courts which, although not included among the exceptions exhaustively listed in Article 45 of that regulation, could not fall within that concept of ‘judgment’ and which the courts of the other Member States would therefore not be required to enforce. Such a category of decisions would be incompatible with the system established by Articles 39, 45 and 46 of that regulation, which provides for the automatic enforcement of judgments and rules out the possibility of review of the jurisdiction of the courts of the Member State of origin by the courts of the Member State in which recognition is sought (see, by analogy, judgment of 15 November 2012, Gothaer Allgemeine Versicherung and Others, C‑456/11, EU:C:2012:719, paragraph 31).

32 In the present case, it is apparent from the order for reference that the High Court order at issue in the main proceedings was, at the very least, the subject of a summary hearing in the Member State of origin, with the result that it constitutes a judgment within the meaning of Article 2(a) of Regulation No 1215/2012. Consequently, since it has been declared to be enforceable in that Member State, it is enforceable in the other Member States pursuant to Article 39 of that regulation.

33 That conclusion is not invalidated by the fact that, on the substance, that order was made so as to give effect to judgments delivered in a third State which are not, as such, enforceable in the Member States.

34 Because of the limitation of the scope of Regulation No 1215/2012 to questions of jurisdiction and the recognition and enforcement of judgments delivered by the courts of the Member States, and in the absence of other provisions of EU law governing those questions for judgments delivered by the courts of third States, those Member States remain, in principle, free to lay down the conditions and procedures enabling national courts to hear disputes brought before them. It follows that certain types of proceedings and court judgments in one Member State do not necessarily have an equivalent in the other Member States.

35 As regards, in particular, the effects which judgments delivered by courts of third States may have in the Member States, the absence of harmonisation at EU level means that the courts of a Member State may, in accordance with the applicable national law, legitimately adopt enforceable decisions on the basis of those judgments, even though taking those judgments into consideration in other Member States is still subject to the requirement for exequatur.

36 Furthermore, contrary to what is suggested by the referring court, the judgment of 20 January 1994, Owens Bank (C‑129/92, EU:C:1994:13), from which it may be inferred, by analogy, that Articles 29 to 31 of Regulation No 1215/2012 do not apply to proceedings for the enforcement of judgments in civil and commercial matters in a third State, does not mean that a decision adopted on the basis of a judgment emanating from a third State, in accordance with the rules on jurisdiction and procedure of a Member State, may not fall within the scope of that regulation.

37 First, as in the case of any other national judicial decision, the classification of an act such as the order at issue in the main proceedings as a judgment within the meaning of Article 2(a) of Regulation No 1215/2012 is in no way dependent on whether the proceedings at the end of which it was adopted fall within the scope of that regulation, since the purpose of that regulation is not to unify the procedural rules of the Member States (see, to that effect, judgment of 9 September 2021, Toplofikenic Sofia and Others, C‑256/20, EU:C:2021:719, paragraph 36 and the case-law cited).

38 Secondly and in any event, the judgment of 20 January 1994, Owens Bank (C‑129/92, EU:C:1994:13, paragraphs 14 and 18), clearly distinguished the inapplicability of the 1968 Brussels Convention to proceedings for the recognition or enforcement of judgments given in civil and commercial matters in a third State and the applicability of that convention to any judgment given by a court of a Contracting State, whatever the judgment may be called.

39 It must therefore be held that no provision of Regulation No 1215/2012 nor any of the objectives pursued by that regulation precludes an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State from falling within the scope of that regulation.

40 It nevertheless follows from the system established by Articles 39, 45 and 46 of Regulation No 1215/2012 that the fact that such an order is recognised as a judgment within the meaning of Article 2(a) of that regulation does not deprive the party against whom enforcement is sought of the right to oppose enforcement of that judgment by relying on one of the grounds for refusal in accordance with Article 45.

41 In particular, in accordance with Article 45(1)(a) of Regulation No 1215/2012, read in conjunction with Article 46, on the application of any interested party, recognition of a judgment is to be refused if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed.

42 However, it must be pointed out that, although the Member States remain in principle free to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter of interpretation of that regulation. Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is nonetheless required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from a court in another Member State (see, by analogy, judgments of 28 March 2000, Krombach, C‑7/98, EU:C:2000:164, paragraphs 22 and 23, and of 16 July 2015, Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 42 and the case-law cited).

43 In addition, by disallowing any review of a judgment delivered in another Member State as to its substance, Article 52 of Regulation No 1215/2012 prohibits the court of the Member State in which recognition is sought from refusing to recognise that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which recognition is sought had it been seised of the dispute. Similarly, the court of the State addressed may not review the accuracy of the findings of law or fact made by the court of the State of origin (see, by analogy, judgments of 28 March 2000, Krombach, C‑7/98, EU:C:2000:164, paragraph 36, and of 16 July 2015, Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 43 and the case-law cited).

44 Thus, in order to comply with the prohibition on review of the substance of a judgment given in another Member State, recourse to the public-policy clause in Article 45(1)(a) of Regulation No 1215/2012 can be envisaged only if recognition of the judgment given in that Member State were to constitute a manifest infringement of a rule of law regarded as essential in the legal order of the State in which recognition is sought or of a right recognised as being fundamental within that legal order (see, by analogy, judgments of 28 March 2000, Krombach, C‑7/98, EU:C:2000:164, paragraph 37, and of 16 July 2015, Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 44 and the case-law cited).

45 Such an infringement may, inter alia, lie in the fact that the party against whom enforcement is sought was not able to defend him or herself effectively before the court of origin and to challenge the decision sought to be enforced in the Member State of origin (see, by analogy, judgment of 2 April 2009, Gambazzi, C‑394/07, EU:C:2009:219, paragraphs 27, 37, 45 and 46).

46 Thus, in the present case, if J were to succeed in establishing, before the court hearing the matter in the Member State in which enforcement is sought, that it was impossible for J to contest, in the Member State of origin, the substance of the claims which gave rise to the Jordanian judgments forming the subject matter of the order at issue in the main proceedings, that court could refuse enforcement of that order on the ground that it was manifestly incompatible with national public policy. It is for the referring court alone to assess this.

47 In the light of all the foregoing, the answer to the first question is that Article 2(a) and Article 39 of Regulation No 1215/2012 must be interpreted as meaning that an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State constitutes a judgment and is enforceable in the other Member States if it was made at the end of adversarial proceedings in the Member State of origin and was declared to be enforceable in that Member State. The fact that it is recognised as a judgment does not, however, deprive the party against whom enforcement is sought of the right to apply, pursuant to Article 46 of that regulation, for a refusal of enforcement on one of the grounds referred to in Article 45.

48 In light of the reply to the first question, it is not necessary to answer the second and third questions.

49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 2(a) and Article 39 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 must be interpreted as meaning that an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State constitutes a judgment and is enforceable in the other Member States if it was made at the end of adversarial proceedings in the Member State of origin and was declared to be enforceable in that Member State. The fact that it is recognised as a judgment does not, however, deprive the party against whom enforcement is sought of the right to apply, pursuant to Article 46 of that regulation, for a refusal of enforcement on one of the grounds referred to in Article 45.

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