Barbara Fontaine, the Senior Master of the Senior Courts of England & Wales Queen’s Bench Division of The Royal Courts of

Justice

Jurmala, „Baltic Beach Hotel” 10 June, 2015

CLOSING CONFERENCE „THE COURT OF JUSTICE OF THE EUROPEAN UNION AND ITS CASE LAW IN

THE AREA OF CIVIL JUSTICE”

THE RELEVANT UK EXPERIENCE IN THE AREA OF CIVIL JUSTICE – TRANSPOSITION,

IMPLEMENTATION AND APPLICATION OF EU LEGAL ACTS AND JUDGMENTS OF CJEU IN NATIONAL COURTS AND ADMINISTRATIVE AUTHORITIES

This presentation is Co-funded by the Civil Justice Programme of the European Union Project JUST/2013/JCIV/AG/4691 „The Court of Justice of the European Union and its case law in the area of civil justice”.

Requests received since December 2003 to 14th May 2015

0

5000

10000

15000

20000

25000

30000

35000

40000

45000

50000

Item

s re

ceiv

ed

SFP

RS

CR

RE

SFP 3544 5410 427 237 4118 1690 974 617 634 43249 20487 4048 616 703 8613 5169 1640 610 508 4127 17435 1200 634 2270 3716 941

RS 181 217 84 3 188 108 178 34 32 804 1242 201 69 1214 696 75 38 102 110 326 251 319 86 69 1379 134

CR 224 16 21 4 6 224 15 13 5 41 416 8 50 3 85 174 88 1 10 5 757 1484 274 297 443 224

RE 7 8 1 0 1 2 0 0 1 17 38 4 1 4 9 13 4 3 1 12 5 4 3 3 21 6

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czech Repub

lic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy LatviaLithua

nia

Luxembour

gMalta

Netherlands

Poland

Portugal

Romania

Slovakia

SpainSwed

en

Please note, the figures found within this chart represent a total count of items received, including those returned for corrections/amendments to be made.

SFP

Poland13%

France32%

Germany15%

Hungary0%

Greece3%

Ireland1%

Italy6%

Latvia4%

Lithuania1%

Malta0%

Luxembourg0%

Netherlands3% Portugal

1%

Romania0%

Slovakia2%

Spain3%

Sweden1%

Denmark1%

Estonia0%

Finland0%

Czech Republic1%

Cyprus3%

Bulgaria0%

Croatia0%

Belgium4%

Austria3%

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

Netherlands

Poland

Portugal

Romania

Slovakia

Spain

Sweden

This chart shows the breakdown of SFP lodged with E&W by each respective country within the EU. The data range is from December 2002 - 14th May 2015.

RS

Poland3%

France10%

Germany15%

Hungary1%

Greece2%

Ireland15%

Italy9%

Latvia1%

Lithuania0%

Malta1%

Luxembourg1%

Netherlands4%

Portugal4%

Romania1%

Slovakia1%

Spain17%

Sweden2%

Denmark2%Estonia

0%Finland

0%

Czech Republic1%

Cyprus2%

Bulgaria1%

Croatia0%

Belgium3%Austria

2%

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

Netherlands

Poland

Portugal

Romania

Slovakia

Spain

Sweden

This chart shows the breakdown of RS made by E & W to each respective country within the EU. The data range is from December 2002 - 14th May 2015.

CR

Poland15%

France1%

Germany9%

Hungary1%

Greece0%

Ireland0% Italy

2%

Latvia4%

Lithuania2%

Malta0%

Luxembourg0%

Netherlands0%

Portugal30%

Romania6%

Slovakia6%

Spain9%

Sweden5%

Denmark0%

Estonia0%

Finland0%

Czech Republic5%

Cyprus0%

Bulgaria0%

Croatia0%Belgium

0%

Austria5%

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

Netherlands

Poland

Portugal

Romania

Slovakia

Spain

Sweden

This chart shows the breakdown of CR requests made by each respective country within the EU. The data range is from December 2002 - 14th May 2015.

RE

Poland3% France

10%

Germany23%

Hungary1%

Greece2%

Ireland2%

Italy5%

Latvia8%Lithuania

2%

Malta1%

Luxembourg2%

Netherlands7%

Portugal2%

Romania2%

Slovakia2%

Spain13%

Sweden4% Denmark

0%

Estonia0%

Finland1%

Czech Republic1%

Cyprus1%Bulgaria

1%Croatia

0%Belgium5%

Austria4%

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

Netherlands

Poland

Portugal

Romania

Slovakia

Spain

Sweden

This chart shows the breakdown of RE requests made by each respective country within the EU. The data range is from December 2002 - 14th May 2015.

THE SERVICE REGULATION

In respect of requests for service of documents in England & Wales, the most common problems are:(i) The requesting court does not provide the full address – we do what we can to find this. If the defendant is a company we can do an online search at the Companies Registry. If it is an individual we may be able to search for a postcode if we have sufficient details.(ii) The person to be served is not at home. If the bailiff attempting to serve can receive some confirmation, from another member of the household, or from a neighbour, that the person lives there I can give permission for service by first class post.(iii) The person served has moved. If no forwarding address is available we have to return the paper with a ‘non service’ report.(iv) We often find that the residential addresses provided are those of rented accommodation, and as such by the time proceedings have commenced in the EU court, the defendant has moved on and relocated, causing much frustration for the new occupants.

The most common reasons for non service of court documents from our court in other EU countries is that the persons named are not at address specified, the address does not exist or is incorrect.

THE SERVICE REGULATION

Article 14 Service by Postal Services: Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or otherwise

• What is required for acknowledgement of receipt or otherwise?

• How is service tracked by court of Member State serving by post?

• Can this obligation be delegated to the party requesting service?

THE SERVICE REGULATION

Does a bi-lateral treaty prevail over Article 14? Article 20 of the Service Regulation provides: 1. The Regulation shall in relation to matters to which it applies, prevail over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the member States and in particular Article IV of the Protocol to the Brussels Convention 1968 and the Hague Convention of 15th November 1965 2. This Regulation shall not preclude individual Member States from maintaining or concluding agreements or arrangements to expedite further or simplify the transmission of documents provided that they are compatible with this Regulation.

THE SERVICE REGULATIONWhich court decides whether service has been validly made under the Regulation?

Article 7

Service of documents

1. The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State.

2. The receiving agency shall take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt. If it has not been possible to effect service within one month of receipt, the receiving agency shall:

(a) immediately inform the transmitting agency by means of the certificate in the standard form set out in Annex I, which shall be drawn up under the conditions referred to in

Article 10(2); and

(b) continue to take all necessary steps to effect the service of the document, unless indicated otherwise by the transmitting agency, where service seems to be possible within a reasonable period of time.

Minalmet GmbH v. Brandeis Limited (Case C-123/91) [1993] 4 I. L. Pr. 132 -• a default judgment given in one contracting state should not be recognised

in another contracting state if the document initiating the proceedings was not duly served on the defendant

• service must be made in accordance with the law of the place of service

THE EVIDENCE REGULATION

• Articles 10-12 – Special procedures

• Article 10 – Use of technology - videoconference and teleconference

• Article 17 – Direct taking of evidence

• See Prorail BV v Xpedys NV (C332/11) (2013) I.L.Pr. 18 - the ECJ held that an expert appointed by the court of one Member State might be able to undertake investigations and evidence gathering in another Member State in certain circumstances notwithstanding that Art 17 made no express provision for this.

• Article 18 - Costs.

• Werynski v Mediatel 4B spoklka (C-283/09) (2012) - the ECJ held that the requested court’s entitlement to recover from the requesting court the costs listed in Art 18(2) did not extend to the right to recover witness expenses payable to the witness under national law.

THE EVIDENCE REGULATION

Problems –

• Requests for evidence from children?

Use Family Court Procedure

Alternatively order a report into the living circumstances of the children

by state social workers used in Family Courts

• Requests for DNA evidence

The Family Law Reform Act 1969 - the court may direct the taking of

bodily samples for the use of scientific tests to determine parentage,

but the consent of the witness must be obtained.

An English court will not order a blood or DNA test without the consent

of the witness and such a provision will be included in the order.

THE JUDGMENTS REGULATION (recast) (Council Regulation (EC) No.1215/2012))

Article 26 of the recast Regulation (previously in Article 24, and before that in Article 18 - Submission to jurisdiction : “Apart from jurisdiction derived from other provisions of this Regulation, a court of a member state before which a defendant enters an appearance shall have jurisdiction. This Rule shall not apply where appearance was entered to contest the jurisdiction, …”

Elefanten Schuh GMBH v Pierre Jacqmain 1981 ECR 171: “Article 18 … must be interpreted as meaning that the Rule on jurisdiction which that provision lays down does not apply where the defendant not only contests the court’s jurisdiction but also makes submissions on the substance of the action, provided that if the challenge to jurisdiction is not preliminary to any defence as to the substance it does not occur after the making of the submissions which, under national procedural law are considered to be the first defence addressed to the court seized.”

ETS. Rohr SA v Dina Ossberger (Case 27/81) 1981 ECR 2431 (paragraph 8):“Accordingly, the answer to the question submitted must be that Article 18 of the Convention of 27 September 1968 must be interpreted as meaning it allows the defendant not only to contest the jurisdiction but submit at the same time in the alternative a defence on the substance of the action without, however, losing his right to raise an objection of lack of jurisdiction.”

THE JUDGMENTS REGULATION (recast ) (No.1215/2012)

Article 7.5:A person domiciled in a Member State may, in another Member State, be sued:…as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated.

Etablissements Somafer v Saar-Ferngas Case 33/78 [1978] ECR 2183 paragraph 12

SAR Schotte v Parfums Rothschild [1987] ECR 4905 paragraph 15

THE JUDGMENTS REGULATION (recast ) (No.1215/2012)

Relevance of Article 2 to Article 7.5

Somafer v Saar-Ferngas [1978] ECR 2183 at 2193:“It is by definition a question of factors concerning two entities established in different Contracting States but which in spite of this must be considered in the same way, whether from the point of view of the parent body or of an extension or extensions which the parent body has established in the other Member States or from that of the third parties with whom legal relations are created through such extensions. In these circumstances the need to ensure legal certainty and equality of rights and obligations for the parties as regards the power to derogate from the general jurisdiction of Article 2 requires an independent interpretation, common to all Contracting States, of the concepts in Article 5(5) of the Convention which are the subject of the reference for a preliminary ruling.”

THE JUDGMENTS REGULATION (recast ) (No.1215/2012)

Article 45.1(b) – Recognition of judgment in default of appearance:A judgment shall not be recognised:……………………

2. where it was given in default of appearance, if the defendant was not served with the documents 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;

ASML Netherlands BV v Semiconductor Industry Services GmbH C-283/05 2006 ECR 1-336• Purpose of Article 34.2 to prevent the possibility that a purely formal irregularity

may result in the refusal of an enforcement order, where that irregularity did not prevent a defendant from arranging for his defence.

• Distinction between Article 27 (2) of the Brussels Convention and Article 34.2 of the Judgments Regulation, - opinion of the Advocate General as to the reason for the change endorsed.

Ingenieurburo Michael Weiss & Partners GbR v Industrie-und Handelskammer Berlin C-14/07 [2008] ECR 1-3367 (paragraphs 66 and 67):• Conditions for recognition of judgments laid down in Regulation No 44/2001 have

been relaxed by comparison with the conditions laid down in the Brussels Convention.

• Article 34(2) departed from the requirement in Article 27 (2) of the Brussels Convention that the document instituting the proceedings be duly served, so as to place effective observance of the rights of the defence, considered to have been observed when defendant aware of the pending legal action and been able to commence proceedings to challenge a judgment entered against him.

THE JUDGMENTS REGULATION ((the previous Regulation) No.44/20)

Preliminary Ruling in Trade Agency Ltd v Seramico Investments Ltd [2012] EUECJ C-619/10: Article 34(1) of the previous Judgments Regulation - the courts of the enforcing member state may refuse to enforce a judgment given in default of appearance which disposes of the substance of the dispute, but which does not contain an assessment of the subject matter or the basis of the action and which lacks any argument of its merits;

but only If it appears to the court that the judgment is a manifest and disproportionate breach of the defendant's right to a fair trial referred to in Article 47(2) of the Charter of Fundamental Rights (introduced into European primary law by the Treaty of Lisbon), because of the impossibility of bringing an appropriate and effective appeal against it.

Article 34 of the Regulation must be interpreted strictly because it constitutes an obstacle to the attainment of one of the fundamental objectives of the Regulation.

THE JUDGMENTS REGULATION (recast ) (No.1215/2012)

Article 45.1 – Public Policy..the recognition of a judgment may be refused: (a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed.

English decision of Merchant International Company Ltd v Natsionalna Aktsionerna Kompaniya Naftogaz [2012] EWCA Civ 196 – • The English court is entitled to consider whether a foreign judgment

obtained in a state bound by the European Convention on Human Rights contravenes the Convention where strong factual evidence that the foreign judgment offends against the principle of legal certainty.

• The principle is a fundamental part of the rule of law and is regarded by the ECHR as an integral part of Article 6 of the Convention.

English decision of Joint Stock Company (Aeroflot-Russian Airlines) v Berezovsky and another [2014] EWCA Civ 20 - on a claim for enforcement of a foreign judgment there is a presumption that the foreign judgment is in compliance with Article 6 unless the contrary is shown.

THE JUDGMENTS REGULATION (recast ) (No.1215/2012))

Changes to previous Judgments Regulation –Article 36 - Removal of the process of the conversion of a foreign judgment for enforcement • Judgments may be enforced directly, provided that certain requirements as

to service of certain documents on the judgment debtor are fulfilled. • Annex 1 to be completed (or Annex II in the case of court settlements or

authentic instruments), and a copy of the judgment and a translation.

Article 54 – Adaptation OrdersIf a judgment from another Member State contains a measure or order which does not directly equate to an order known in the law of the Member State in which the judgment is to be enforced, that measure or order must be “adapted” to a measure or order which is known in the law of the Member State where the judgment is to be enforced.

Article 25 (formerly Article 23 of the previous Regulation)• Where parties have agreed that a court or courts of a member state are to

have jurisdiction - no requirement that one or more parties to be domiciled in a Member State;

• Article 25 will apply, “unless the agreement is null and void as to its substantive validity under the law of that member state”.

EUROPEAN ORDERS FOR PAYMENT - Regulation (EC) No 805/2004 of April 21, 2004

Shearson Lehmann Hutton Inc. v TVB Treuhandgesellschaft fur Vermogensverwaltung und Beteiligungen mbH (Case C-89/91) - that Austrian court entitled to refuse certification of a default judgment as an European Enforcement Order • Art.6 of the EEO Regulation does not apply to contracts concluded between persons who

are not engaged in commercial or professional activities; • The aim of the EEO Regulation to compensate for the imbalance between consumer and a

professional and application cannot be extended to persons where protection not justified.

G v de Visser (Case C-292/10) (2012) EU law precluded certification as a European Enforcement Order of a judgment by default issued against a defendant whose address was unknown.

English law decisions –Vogel v Lotschutz (2012) QBD - defendant’s appeal against EEO dismissed because any miscalculation in the EEO could be corrected.

Lothschutz v Vogel [2014] EWHC):• Law of the Member State of origin (as defined by Article 10.2 of the EEO Regulation)

applied to the rectification or withdrawal of an EEO certificate. • Enforcement procedures were governed by the law of the Member State of enforcement

(Article 20.1). • Once an EEO certificate had been delivered to the English court, the court had no option

but to permit enforcement and could not review its substance. • No mechanism for a challenge in the receiving court to the validity of the EEO certificate

(see Article 21). • If an EEO certificate is withdrawn the court’s powers are limited to exercising its powers

under Article 23.

THE PROTECTION MEASURES REGULATION - Regulation (EU) No. 606/2013

Came into force on 11 January 2015

Allows protection measures made in one Member State to be automatically recognised and enforced in other Member States (except Denmark, which is not bound by the Regulation).

Protection measures - involve decisions imposing obligations on “the person causing the risk” with a view to “protecting another person, when the latter person’s physical or psychological integrity may be at risk”.

Obligations imposed which are subject to the Regulation:a) a prohibition or regulation on entering the place where the protected person resides, works or

regularly visits or stays;b) a prohibition or regulation of contact in any form with the protected person, including by

telephone, electronic or ordinary mail, fax or other means;c) a prohibition or regulation on approaching the protected person closer than a prescribed

distance.

English law measures include • Injunctions under the Protection from Harassment Act 1997; • Molestation orders;• Occupation orders and • Forced marriage protection orders.

Procedure• Protected person to apply for an ‘Article 5 certificate’ to the court which made the order for a

protection measure;• Article 5 Certificate issued if court is satisfied that the person to whom it is addressed has been

served with the order. • Notice under Article 8 must also be given to person to whom it is addressed. • The protected person may enforce the protection measure in own jurisdiction in the same way as

if such a measure had been ordered in that jurisdiction.

INJUNCTIONS AND OTHER INTERIM REMEDIES

Mandatory or prohibitive orders Before trial; or During the course of proceedings or After judgment.

Orders for:• preservation of property; or • delivery of property, or • disclosure of documents, • freezing orders and • search orders,

Intention - to prevent irreversible damage being done or to enable evidence to be preserved:

Article 35 of the recast Judgments Regulation – Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the laws of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.  Article 40 of the recast Judgments Regulation – An enforceable judgment shall carry with it by operation of law the power to proceed to any protective measures which exist under the law of the Member State addressed. 

THANK YOU FOR YOUR ATTENTION!