Recognition and enforcement within the EU
The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 enacts common competence rules for the European Union as a regard of recognition and enforcement procedures (exequatur) in order to improve justice cooperation between Members States.
The European regulation n. 44/2001 has replaced the Brussels Convention of 1968 since the 1st March 2002, date of its effectiveness. This regulation applies to all the EU members states excluding Denmark. For the European regulation "judgment" means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.
Within the EU, the ultimate purpose consist in getting rid of all control in the country of arrival so that, regardless of the state that issued it and a judgment may be enforced in any other Member State under exactly the same conditions as that member state emanated from himself. This objective of the liberalization of judgments cannot however be achieved overnight and its implementation is proceeding in phases, along with legislative work to strengthen mutual trust.
1. For recognition and for enforcement:
To get the recognition or the enforcement of a decision, the complainant must file a petition to the court or the competent authority of the Member State concerned. Besides the complainant shall attach to his petition a copy"which satisfies the conditions necessary to establish its authenticity" and a certificate issued at his request by the court, on a form annexed to Regulation (Articles 53 Β 55).
The article 33.1 states: "A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required." Any judgment rendered in a member state is then recognized, unless a party raises the recognition of a judgment as the main issue of a dispute (article 33.2).
Within the European Union, enforcement of a judgment depends on: "A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there"(Article 38.1); with the exception of the United Kingdom where judgment can be enforceable if it has been registered for enforcement in a part of the United Kingdom (Wales, Northern Ireland, Scotland or England).
The article 39 states, "The application shall be submitted to the court or competent authority." The procedure to submit the application is governed by the law of the member state in which enforcement is sought.
The article 43 states, "The decision on the application for a declaration of enforceability may be appealed against by either party." About deadline to submit the appeal, the article 43.3 states, "An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance".
The court with which an appeal is lodged can only refuse or revoke an enforcement decision on the grounds of the article 34 and 35 of the same regulation (details provided hereinafter).
2. About protective measures
The article 47 provides details about proceeding to protective measures. This part might be useful and relevant for the ATA and Sekerbank cases.
"1. When a judgment must be recognized in accordance with this Regulation, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State requested without a declaration of enforceability under Article 41 being required.
2. The declaration of enforceability shall carry with it the power to proceed to any protective measures.
3. During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought"
3. About refusal of recognition and exequatur
Pursuant to the regulation n. 44/2001 recognition and enforcement are no longer subject to a priori control. The article 34 and 35 frame the possible conditions to turn down recognition or enforcement of a decision:
1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
2. Where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
3. If it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;
4. If it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.
The article 41: "The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application"
Both Brussels Convention and European regulation n. 44/2001 insist on: "Under no circumstances may the foreign judgment be reviewed as to its substance" (article 36 and 45.2).
Relation between Turkey and the EU concerning recognition and enforcement procedure
The treaty establishing a constitution for Europe was an unratified international treaty, which intended to provide and consolidate a constitution the European Union.
The treaty was signed on the 29 October 2004 by the 25 European members but was later ratified only by 18 member states. Turkey was a signatory of this treaty as an observer like Bulgaria and Romania which both entered in the EU in 2007. Besides, Turkey, since 1963 and the Ankara agreements, is an associate member of the European Union.
Nevertheless, it remains unratified and it has been replaced by the treaty of Lisboan that entered into force on the 1st December 2009 and in which Turkey is not a signatory. Although, we must acknowledge that the Lisboan treaty contains many of the changes that were originally placed in the Constitutional treaty, the European Union is not ready to enable Turkey to benefit from their community justice policy.
The other issue remains that European judgments are not automatically recognized in Turkey and need a special procedure in front of a Turkish court to be recognized and all the more so enforced. Turkey follows law 2675 signed in 1982 on international law and civil international procedure and its article 34, which makes the execution dependent on an exequatur judgment in the country in which the enforcement is sought. Therefore, it appears really difficult to invoke the article 33 of the European regulation n. 44/2001, as a non-EU country, if Turkey does not apply this rule itself with European judgments.
General rules for recognition of judgments in the EU
The European Union ensures that judgments obtained in one EU country can be recognized and enforced in any other EU country. Once you have obtained a judgment in your favor, that judgment must be recognized in every EU country. To enforce it in another EU country, you must ask the court in the country where you seek enforcement to issue a declaration of enforceability. The only reason that enforcement in one EU country can be refused is if it is irreconcilable with another judgment in another EU country between the same parties. However, this procedure applies only for uncontested claims, which are when the defendant has agreed with your claim either in court, in a court-approved settlement or in an authentic act, or if he never objected to it, or if, having initially objected, he then failed to appear in court. Therefore, the EEO's scope is relatively limited (for example it leaves aside arbitration disputes).
o First step: go before the courts and get a judgment in your favor against a debtor.
o Second step: apply to have this judgment certified as a European enforcement order (EEO). It enables to enforce a judgment within the European union without the need of any intermediate proceedings, such as exequatur. The procedure was established by Council Regulation (EC) 805/2004 of 21 April 2004 and comes into force on 21 October 2005.
o Third step: Once the European enforcement order has been issued by the court, it must be sent to the enforcement authority of the EU country where the debtor lives or where his/her assets are.
o Fourth step: As well as the EEO, you will have to provide a copy of the original judgment given in your favor, and you may be asked for a translation of the EEO certificate. This depends on what languages are accepted by the enforcement authority in the other EU country.
o No others formalities will be required. The enforcement is accomplished under the normal rules of the EU country in which the enforcement is sought.