Introduction
This essay explores the relevance and necessity of the exequatur procedure within the European Union’s conflict of laws regime, particularly in light of harmonisation efforts under Brussels I and Rome II regulations. The exequatur serves as an intermediary step for the registration and enforcement of foreign judgments within the EU, ensuring mutual recognition across member states. However, with the progressive integration of legal frameworks aimed at simplifying cross-border enforcement, questions arise about whether this additional procedural tier remains justified. This discussion will assess the original purpose of the exequatur, evaluate its role amidst recent legislative developments, and argue whether its abolition could streamline judicial cooperation without compromising legal safeguards.
The Historical Role and Purpose of the Exequatur
Historically, the exequatur procedure was integral to the EU’s conflict of laws regime, acting as a safeguard to ensure that foreign judgments met specific standards before enforcement in another member state. Under the Brussels Convention of 1968, later replaced by the Brussels I Regulation (Council Regulation (EC) No 44/2001), the exequatur provided a mechanism for courts to review judgments for compliance with public policy, fair trial standards, and jurisdictional rules (Stone, 2010). This intermediary step was deemed necessary to build trust among member states with disparate legal systems. However, the process often resulted in delays and additional costs, arguably undermining the goal of efficient cross-border justice.
Developments Under Brussels I (Recast) and Rome II
Significant strides in harmonisation have been made with the Brussels I Recast Regulation (Regulation (EU) No 1215/2012), which abolished the exequatur requirement for most civil and commercial matters. Under this framework, judgments from one member state are directly enforceable in another without intermediate registration, provided certain procedural safeguards are met (Magnus and Mankowski, 2016). Similarly, Rome II (Regulation (EC) No 864/2007) establishes uniform rules for determining applicable law in non-contractual obligations, reducing conflicts and fostering predictability (Dickinson, 2008). These developments suggest a shift towards automatic recognition and enforcement, rendering the exequatur somewhat redundant. Indeed, the removal of this step in many cases under Brussels I Recast reflects a growing confidence in mutual trust among member states’ judicial systems.
Arguments For and Against Abolition
Proponents of abolishing the exequatur argue that it represents an outdated barrier to efficient judicial cooperation. The procedure can delay enforcement, increase legal costs, and discourage cross-border litigation, contrary to the EU’s aim of creating a unified area of justice (Fawcett and Carruthers, 2008). For instance, prior to the Brussels I Recast, parties seeking enforcement often faced bureaucratic hurdles, even in straightforward cases. On the other hand, critics contend that completely eliminating the exequatur risks undermining procedural fairness. In exceptional cases, such as judgments conflicting with public policy, a review mechanism remains essential to protect national interests (Stone, 2010). While mutual trust is generally strong, disparities in judicial standards across member states could still justify a limited oversight role.
Potential Implications of Abolition
Abolishing the exequatur entirely could streamline enforcement processes, aligning with the EU’s broader integration goals. It would likely reduce costs for litigants and enhance access to justice in cross-border disputes. However, safeguards must remain to address rare but significant issues, such as fraud or breaches of fundamental rights. A balanced approach might involve retaining a minimal, narrowly defined review process rather than a full exequatur, ensuring efficiency without sacrificing protection.
Conclusion
In conclusion, while the exequatur played a vital historical role in fostering trust within the EU’s conflict of laws regime, developments under Brussels I Recast and Rome II have diminished its necessity. The trend towards automatic recognition reflects a maturing legal framework, suggesting that full abolition could further simplify enforcement, provided residual safeguards are maintained. Although concerns about fairness and public policy remain valid, these can be addressed through alternative, less cumbersome mechanisms. Ultimately, phasing out the exequatur aligns with the EU’s vision of a cohesive judicial area, though careful implementation is essential to balance efficiency with legal integrity.
References
- Dickinson, A. (2008) The Rome II Regulation: The Law Applicable to Non-Contractual Obligations. Oxford University Press.
- Fawcett, J. and Carruthers, J. M. (2008) Cheshire, North & Fawcett: Private International Law. 14th ed. Oxford University Press.
- Magnus, U. and Mankowski, P. (eds.) (2016) Brussels Ibis Regulation: Commentary. Sellier European Law Publishers.
- Stone, P. (2010) EU Private International Law. 2nd ed. Edward Elgar Publishing.
