1. UNIT 3: The Principle of Mutual Recognition: trust as the pillar of the construction of the Judicial Area. Brussels I: Regulation 44/2001, of 22 December 2000, on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters

2. I PRINCIPLE OF MUTUAL RECOGNITION: TRUST AS THE PILLAR OF THE CONSTRUCTION OF THE JUDICIAL AREA 1.-Background From the economic union to a citizens’ Europe with an area of freedom, security and justice The free circulation of judgements as a cornerstone of the system

3. 2.-Definition of the Principle of Mutual Recognition and Evolution of the System Automatic recognition. 1968 Brussels Convention, in civil and commercial matters Unmitigated recognition and enforcement of the foreign decision. Regulation 44/2001 (Brussels I), in civil and commercial matters Direct enforcement of the foreign judgement. Regulations 2201/2003 (Brussels II, bis), concerning matrimonial matters and matters of parental responsibility; 805/2004, European enforcement order; and 4/2009 on maintenance

4. II BRUSSELS I: REGULATION 44/2001, OF 22 DECEMBER 2000, ON JURISDICTION, RECOGNITION AND ENFORCEMENT OF JUDGEMENTS IN CIVIL AND COMMERCIAL MATTERS 1.-Introduction Importance of regulation 44/2001 in matters of civil judicial cooperation The prejudiciality of the European Court of Justice

5. 2.-Scope of Application of Regulation 44/2001 2.1.- Scope of Material Application Civil and commercial matters Exclusions: status and capacity of individuals; matrimonial regimes; wills and successions; bankruptcy and arbitration Interpretation of the EJC/CJEU on the scope of material application: ECJ Judgement of 14 October 1976, Eurocontrol ECJ Judgement of 21 April1993, Volkar ECJ Judgement of 14 November 2002, Baten ECJ Judgement of German Graphics

6. 2.2.- Scope of Territorial Application ECJ Judgement of, of 27 February 2002, Weber 2.3.- Scope of Temporal Application Entry into force 1 March 2002 It is applied to the judicial actions enforced or public documents with enforceability formalised after its entry into force. Exception: when the judgement prior to the entry into force is delivered in accordance with international jurisdiction regulations such as those in the regulation.

7. 2.4.- Scope of Spatial Application General rule: the regulation will be applied when the address of the defendant is located within a Member State Exceptions: exclusive jurisdiction and express submission 3.-International Jurisdiction 3.1.-Principal Forums of International Jurisdiction A)Exclusive jurisdiction They grant jurisdiction to the court in the Member State appointed without considering the address of the parties Indication of its scope by the CJEU: ECJ Judgement of 13 October 2005, Klein

8. B) Prorogation of Jurisdiction Express: requires clause in writing, certain prudence in the event of jurisdiction in general terms and conditions of business (ECJ Judgement of 14 December 1976, Segoura) and also requires that at least one of the parties is domiciled in a Member States (ECJ Judgement of 13 July 2000, Group Josi) Implied: prevails over express jurisdiction (ECJ Judgement of 7 March 1985, Spitzley) and for it not to occur the defendant must appeal the international jurisdiction of the judge seised of the case (ECJ Judgement of 24 June 1981, Elephanten)

9. C) The General Forum of the Respondent's Domicile Determination of the domicile of the individuals. Introduction of a conflict of law rule, application of the law of the Member State in which the subject is thought to be domiciled (article 59) Determination of the domicile of corporate persons. The regulation defines it independently but broadly. It shall be where they have their registered office, their head office or principal centre of activity (article 60).

10. 2.2.- Procedural Regulations of International Jurisdiction A)Lis pendens Avoids parallel proceedings being processed which subsequently lead to contradictory judgements Interpretation of the CJEU on the concept: ECJ Judgement of 8 December1987, Gubisch ECJ Judgement of 14 October 2004, Maersk ECJ Judgement of 19 May 1998, Drouot,

11. B) Related Actions (article 28) The intention is to avoid simultaneously processing two actions which, without being identical, can lead to contradictory judgements Definition by the CJEU: Judgement of 8 May 2003, Gatner C) Verification of Jurisdiction of a Court’s Own Motion (article 25) Allows a judge without jurisdiction to stand down from proceedings filed with him (ECJ Judgement of 13 July 2006; GAT )

12. D) Provisional and Protective Measures (article 31) Allow the judge in a Member State to adopt them when the action is being processed in another Member State (ECJ Judgement of 26 March 1992, Mario Reichert) 3.-Recognition of Judgements in Regulation 44/01 Recognition and declaration of unmitigated enforceability The effects of the recognised judgement are those determined by the State of origin (ECJ Judgement of 4 February 1988, Hoffman) They are recognised inaudita parte debitoris (ECJ Judgement of 29 April 1999, Coursier)

13. 4.1.-Grounds for Objection to Recognition Breach of public order (ECJ Judgement of 28 March 2000, Krombach) Absence of the defendant (ECJ Judgement of 21 April 1993, Sonntag) Irreconcilability of the judgement of the requested Member State (ECJ Judgement of 6 June2002, Italian Leather) Irreconcilability of the judgement delivered in a non-Member State prior to the judgement which seeks recognition

14. 4.2.-Process of Recognition and Declaration of Enforceability of the Judgements It constitutes an independent and complete system which is governed, firstly, by the regulation itself and, subsidiarily lex fori in the requested State 4.3.-Appeals Objection to the granting of the recognition or declaration of enforceability. In Spain it will be submitted to the county court Extraordinary appeal. In Spain this is an appeal to the Supreme Court