1. The recognition and enforcement of judgments in civil and commercial matters University of Pitesti Faculty of Law and Administrative Sciences

2. Presentation The law cases between foreign people which are brought before the court must be solved but they can suppose a lot of difficulties because of the distance between the court and the party’s domicile or between the evidences that must be brought and the court This problems can be solved if the states cooperate and so the civil cooperation regards: The communication of judicial and extra-judicial documents The taking of evidence The transmission of information on foreign law; The aces to justice of the foreigner citizen The recognition and enforcement of judgments

3. The judicial cooperation – EU law art.4 para 3 Of the Treaty EU regards the procedural and the substantial law CIVIL and COMMERCIAL are two different notions in the European law, but in the Romanian law there is no reference to the second one (art.3 of Civil Code) The interpretations of the international conventions use a larger meaning of the notion “civil” or “commercial” comparing with the meaning reveiling from the national laws of the states in romano-germanic tradition [ Ex. French law uses two notions– art. 110 -1et 3 du Code de commerce (commerçants) but Romanian law – art. 2 et 3 of Civil Code (this law is applicable also for the professionals which includes also the commercials]. The notion “civil” is an autonomous notion which is trying to unify the effects of the dihotomic law (Ex. – CJEU has interpreted the notion consumer in the field of the Brussel Convention- Francesco Benincasa vs.Dentalkit SARL, the request of a preliminary proceeding Oberlandesgericht München – Germany, C-269/95 – it can not be a consumer the person who passes a contract in order to start a professional activity )

4. 3 possible hypothesis 1. There are no conventions between the states regarding the cooperation ( Ex. Romania – Burundi, Island, Laos etc. ). they will follow the international public law principles the international courtoisie, the mutual recognition and the specific rules of each state Court – Minister of Justice - Minister of Foreign Affaires – etc. 2. The states concluded international bi- or pluri – lateral conventions regarding the cooperation (ex. Bruxelles 1968 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ) 3. The states are members of European Union – so the Council’s Regulations are applicable

5. The sources in the judicial cooperation field The Convention from Lugano 30.10.2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters The Convention on the civil procedure Hague 1954 Romania - 1971, The European Convention of Human Rights - European Council member states in 1950 Romania - 1994, The Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Brussel 1968, The Convention on t he communication of judicial and extra-judicial documents Hague 15.11.1965, The Convention on the taking of evidence Hague 18.03.1970, The Convention The transmission of information on foreign law Hague 25.10.1980, The European Convention on the recognition and enforcement of judgments c oncerning Custody of Children and on Restoration of Custody of Children Luxemburg 20.05.1980.

6. Any way there are a lot of differences between the regulations of the states, so a solution is needed in the field of recognition and enforcement of judgments in civil matters FIRST – the applicable law on the concerning legal nexus (relationship) is to be determined (which national law?) SECOND – identify the effective rules The Romanian Constitution ( art.20) says that : “ Constitutional provisions concerning the citizens' rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the convenants and other treaties Romania is a party to. Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions.” For the EU member states The Council Regulations are directly applicable

7. The EU Regulations on the cooperation EU Regulation no 44 from 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Starting from Brussel Convention from 1968 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters De lege lata - 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 Also Regulation no 2201 from 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000

8. The Regulation no 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 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. [Uniformity? (Romanian law the officer of the court is not able to determinate the costs and the expenses which are determined always by the judge)] Judgment includes also 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.

9. ALSO the recognition and the enforcement in the Regulation 1215/2012 regards: court settlement - meaning a settlement which has been approved by a court of a Member State or concluded before a court of a Member State in the course of proceedings authentic instrument - meaning a document which has been formally drawn up or registered as an authentic instrument in the Member State of origin and the authenticity of which: relates to the signature and the content of the instrument and has been established by a public authority or other authority empowered for that purpose.

10. The meaning of civil and commercial matters ALL of them whatever the nature of the court or tribunal. BUT 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. ALSO the Regulation shall not apply to: 1. the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage; 2. bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; 3. social security; 4. arbitration; 5. maintenance obligations arising from a family relationship, parentage, marriage or affinity; 6. wills and succession, including maintenance obligations arising by reason of death.

11. TWO possible procedures Recognition and Enforcement A judgment given in a Member State is recognised in the other Member States without any special procedure being required but any interested party may apply for a decision that there are no grounds for refusal of recognition Also judgment given in a Member State which is enforceable in that Member State is enforceable in the other Member States without any declaration of enforceability being required..

12. The formal conditions for the recognition and enforcement of judgements The main rule - a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. BUT The party who wishes to invoke in a Member State a judgment given in another Member State shall produce: 1. a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and 2. the certificate issued pursuant to Article 53 - Annex I. The court or authority before which a judgment given in another Member State is invoked may, where necessary, require the party invoking it to provide a translation or a transliteration of the contents of the certificate or of the judgment instead of a translation of the contents of the certificate if it is unable to proceed without such a translation ( the translation or transliteration shall be into the official language of the Member State concerned or, where there are several official languages in that Member State, into the official language or one of the official languages of court proceedings of the place where a judgment given in another Member State is invoked or an application is made, in accordance with the law of that Member State. )

13. The substantial conditions for the recognition and enforcement of judgements 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 BUT there are reasons for the refusal if: 1. such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed; 2. where the judgment 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 (the right of defence)

14. 3. if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed; 4. if the judgment 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; or 5. if the judgment conflicts with the rules of the Regulation no 1215 in: Jurisdiction in matters relating to insurance; Jurisdiction over consumer contracts; Jurisdiction over individual contracts of employment; Exclusive jurisdiction (Ex. in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated; validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal person s).

15. Competence - The application for refusal of enforcement shall be submitted to the court which the Member State concerned has communicated to the Commission as the court to which the application is to be submitted (Romania – tribunal - second instance in the hierarchy, from the domicile of the defendant). The procedure for refusal of enforcement shall, in so far as it is not covered by this Regulation, be governed by the law of the Member State addressed. BUT - The court shall decide on the application for refusal of enforcement without delay and the decision on the application for refusal of enforcement may be appealed against by either party.

16. Common provisions 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. If a judgment contains a measure or an order which is not known in the law of the Member State addressed, that measure or order shall, to the extent possible, be adapted to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests (Ex. The applicant will enforce the decision on the account of the debtor).

17. Also – particular rule - a judgment given in a Member State which orders a payment by way of a penalty shall be enforceable in the Member State addressed only if the amount of the payment has been finally determined by the court of origin. No taxes (security, bond or deposit) is required of a party who in one Member State applies for the enforcement of a judgment given in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the Member State addressed. Translation - shall be into the official language of the Member State concerned or, where there are several official languages in that Member State, into the official language or one of the official languages of court proceedings of the place where a judgment given in another Member State is invoked

18. Enforcement 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. Also an enforceable judgment 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. The procedure for the enforcement of judgments given in another Member State it is governed by the law of the Member State addressed but there must be no differences between the decisions because one of them is a foreign one.

19. Possible cases If the decision is recognised into a procedure before its enforcement (the court decided that there are no reasons for refusal) the applicant can apply for the enforcement directly, without any special procedure If the enforcement is required the interested party may also apply (differently) to see if there are no incompatibilities with the grounds referred to in Article 45 (refusal). The applicant applies before the authority of the member State in order to enforce the decision and in this procedure the defendant will invoque the refusal reasons

20. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 Official Journal L 338, 23/12/2003 P. 0001 - 0029 The field of the Regulation regards civil matters relating to: a) divorce, legal separation or marriage annulment; b) the attribution, exercise, delegation, restriction or termination of parental responsibility (such as: rights of custody and rights of access; guardianship, curatorship and similar institutions; the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child; the placement of the child in a foster family or in institutional care; measures for the protection of the child relating to the administration, conservation or disposal of the child's property. The Regulation does not apply to: a) the establishment or contesting of a parent-child relationship; b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; c) the name and forenames of the child; d) emancipation; e) maintenance obligations; f) trusts or succession; g) measures taken as a result of criminal offences committed by children.

21. judge” means the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation; "judgment” means a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision; The administrative acte must have the same regime but for this there are different regulations (art. 375-376 Civil Code – the divorce before the administrative authority).

22. Recognition of a judgment R. no.2201/2003 A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. In particular no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State any interested party may apply for a decision that the judgment be or not be recognised. If the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

23. Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought; b) where it was given in default of appearance, if the respondent 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 the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally; c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

24. Grounds of non-recognition for judgments relating to parental responsibility a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child; b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought; c) where it was given in default of appearance if the person in default 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 that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally; (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard; e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought; dure laid down in Article 56 has not been complied with.

25. Main rules Prohibition of review of jurisdiction of the court of origin ( the jurisdiction of the court of the Member State of origin may not be reviewed – it is not a question of public policy). Differences in applicable law - the recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts. Non-review as to substance Under no circumstances may a judgment be reviewed as to its substance. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal.

26. Application for a declaration of enforceability A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. The procedure for making the application is governed by the law of the Member State of enforcement but the applicant must give an address for service within the area of jurisdiction of the court applied to. If the law of the Member State of enforcement does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

27. The documents needed a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and the certificate referred to in Article 39. In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce: the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document or any document indicating that the defendant has accepted the judgment unequivocally. If the documents are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production.

28. Enforceability of certain judgments concerning rights of access and of judgments which require the return of the child Regards: rights of access and the return of a child entailed by a judgment given pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation The rights of access must be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin, even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.

29. The judge of origin shall issue the certificate concerning rights of access only if next conditions are cumulated: where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defense, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally; all parties concerned were given an opportunity to be heard; the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. IF the rights of access involve a cross-border situation at the time of the delivery of the judgment, the certificate shall be issued ex officio when the judgment becomes enforceable, even if only provisionally. If the situation subsequently acquires a cross-border character, the certificate shall be issued at the request of one of the parties.

30. Return of the child an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment The judge of origin who delivered the judgment issues the certificate only if: a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; b) the parties were given an opportunity to be heard; and c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to 1980 Hague Convention.

31. The New Civil Procedure Code Romania 2013 15.02 NCPC The recognition of the foreign decisions article 1094 from the New Civil procedure Code applies to all the foreign decision without those delivered into the member states of EU NCPC is the common law in procedural matters– formal and substantial conditions for the recognition and for the enforcement (two different steps)

32. The general rules If they are delivered in the legal or natural persons life field they are recognised by law, there is no procedure for this end FOR THE REST 3 positive conditions: 1. The decision must be definitive, by the law of the state of origin (RO – art.634 NCPC – the decisions which can’t be challenged by appeal); If the decision was not communicated to the defendant and the law allows an appeal, the judge can refuse the recognition If an appeal was lodged the judge may stay the procedure of recognition The right of defence

33. 2. The foreign court must be competent by its national law (the competence must not rely on the presence of the defendant before the court without any arguments on the matter); 3. The foreign state law must guarantee the mutual attitude if a decision from the state requested is to be recognised in that state Under no circumstances may a judgment be reviewed as to its substance - art. 1097 NCPC

34. ALSO negative conditions: 1. the recognition is manifestly contrary to public policy (ordre public) in Romania; 2. the judgment was given against a persona enable to arrange for the defence 3. if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed; 4. if the judgment 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; or

35. Conclusions The new Civil procedure Code tries to unify the national legislation with the EU law The national law is in accordance with the EU jurisprudence and the Strasbourg Court jurisprudence The most important procedural rights are respected (defence, contradictoriality, disponibility)

36. Thank you very much for your attention !