14 Colum. J. Eur. L. 371 (2008)

Gilles Cuniberti. Associate Professor of Law, Paris Val-de-Marne University, France; J.D., Ph.D (Law), Panthéon-Sorbonne University; LL.M., Yale.

On October 15 and 16, 1999, the European Council met in Tampere, Finland, and approved the principle of mutual recognition of judicial decisions and judgments.  In its conclusions,# the European Council insisted that the principle should become the “cornerstone of judicial cooperation in both civil and criminal matters within the Union.”  In civil matters, which will be the exclusive focus of this note, the European Council specifically made clear that the “intermediate measures which are still required to enable the recognition and enforcement of a decision or judgment” in other States of the Union should be further reduced.  As a first step, these intermediate measures should be abolished for certain titles, i.e., for certain types of judgments.  The European Council asked the Council of Ministers and the Commission to adopt, by the end of 2000, a “programme” of measures to implement the principle of mutual recognition.

A joint Commission and Council Programme of Measures for Implementation of the Principle of Mutual Recognition of Decisions in Civil and Commercial Matters (the “Programme”)# was adopted on November 30, 2000.   The Programme recognized the term “intermediate measures” as a reference to one particular procedure whereby member states assess whether foreign judgments may be declared enforceable within their jurisdiction. This procedure aims at verifying that foreign judgments meet certain requirements which typically include whether the foreign court retained jurisdiction on a reasonable basis, whether the procedure followed by the foreign court comported with basic procedural rights, and whether the outcome adopted by the foreign court, on the merits, is not shocking from the perspective of the forum.  The French have a specific name for this procedure: exequatur. Although the procedure varies from one jurisdiction to another, the Commission and the Council have also chosen to call it exequatur.  Thus, what the principle of mutual recognition is really about in civil matters is the abolition of the exequatur procedure throughout the European Community.

The European Council had alluded to the existence of several steps in the process of implementing the principle of mutual recognition.  It had previously discussed the first one: abolishing intermediate measures for judgments in certain areas and for certain types of claims.  The Programme proposed that a second stage be the abolition of the exequatur “in other areas,” and a third and final stage the abolition in all remaining areas.

Since 2004, the European Community has initiated the process of implementation of the principle of mutual recognition by adopting several regulations. In the first section of this note, I offer a brief survey of these regulations.  In the second section, I explore whether these regulations and, indeed, the whole process comports with European human rights law.