Following the end of the Brexit transition period on 31 December 2020, judgments issued by courts in EU member states are no longer recognised or enforceable in the UK.
Cross-border civil and commercial claims were previously dealt with under the following rules:
- The European Enforcement Order (Regulation (EC) No. 805/2004) (the EEO Regulation);
- The European Order for Payment Procedure (Regulation (EC) No. 1896/2006) (the EOP Regulation)
- The European Small Claims Procedure (Regulation (EC) No. 861/2007) (ESCP Regulation)
Cases commenced during the transition period
Under the terms of the Withdrawal Agreement, the EEO Regulation will still apply to judgments in cases commenced before the end of the transition period as well as to court settlements approved or concluded before 1 January 2021, so long as the certification as an EEO was applied for before the end of the transition period.
Similarly, the EOP Regulation continues to apply to European payment orders that were applied for before 1 January 2021.
The ESCP Regulation will also apply to small claims where the application was lodged prior to the end of the transition period.
Cases commenced since 31 December 2020
From 1 January 2021 onwards, EEO, EOP and ESCP judgments issued by the courts of EU member states are no longer recognised or enforceable in the UK.
UK courts are also unable to certify judgments as EEOs or issue EOP or ESCP judgments. Claims now need to be made in UK courts where enforcement in the UK is required.
For proceedings commenced in EU member states after the transition period, the court dealing with the case will determine the relevant international jurisdiction.
In respect of cases that come within the scope of EU instruments in civil and commercial matters, jurisdiction will be decided in accordance with those EU instruments. If the instrument permits, the court of a member state may apply its national rules of international jurisdiction.
With regard to cases that are not within the scope of EU instruments, international jurisdiction will be decided by reference to the national rules of the member state where the court application has been made.
The Hague Conference of Private International Law
In some instances, the Hague Conference on Private International Law will apply, including in respect of some aspects of divorce and child maintenance proceedings, provided that the other country is also a party to the convention.
The UK intends to accede to the 2005 Hague Convention on Choice of Court Agreements, meaning that exclusive choice of court agreements will continue to be effective when made between parties based in the UK and EU member states.
Judicial cooperation between member states
Following the end of the transition period, Regulation (EC) No 1393/2007 on Service of Documents will no longer apply in respect of service of documents that has been commenced after 31 December 2020.
EU member states cannot now commence new judicial cooperation procedures with the UK using EU law as their basis. Instead, national law in respect of judicial cooperation with third countries (ie. countries outside of the EU) will need to be used.
Applicable law in civil and commercial cases
The rules regarding choice of law have not changed substantially following the end of the Brexit transition period.
The Rome I Regulation (EC/593/2008) sets out the rules for determining which law will be applied to contracts. Generally, the law chosen by the parties at the time of making a contract will still apply, even if this is not the law of an EU member state.
Similarly, the Rome II Regulation (EC/864/2007) will also continue to apply. This governs the rules that EU courts will apply to determine applicable law in respect of non-contractual obligations, such as obligations in tort.
Judicial cross-border cooperation post-Brexit
The Brexit deal does not provide detail in respect of judicial cross-border cooperation for civil matters, presumably because an agreement was not reached in this regard.
The UK had requested to join the Lugano Convention, which governs jurisdiction and enforcement of civil and commercial judgments made between the European Free Trade Association states (ie. EU member states plus Switzerland, Iceland and Norway), however the deal is silent as to this although the UK was made a temporary member for the duration of the transition period.
The states other than the EU were agreeable to the UK joining, but the EU has so far failed to reach a decision.
The terms of the Brexit deal
The EU statement released upon conclusion of the Brexit deal referred to binding enforcement and dispute settlement mechanisms which will ensure that rights of businesses, consumers and individuals are respected.
The intention is that businesses in the EU and the UK will compete on a level playing field and that neither party will be able to use regulatory autonomy to grant unfair subsidies or distort competition.
Both parties will be able to engage in cross-sector retaliation in cases of violations of the agreement.
However, at present there is no specific Brexit provision in place for judicial cooperation in civil matters between the UK and EU member states.
For those in the EU wishing to bring a case against an English entity, advice should be taken in England about securing a binding judgment. Judgments secured in an EU member state post-31 December 2020 are unlikely to be much help when it comes to enforcement against a party based in England.
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