Czech Republic: Council Regulation (EC) No.44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ("Regulation ")

Last Updated: 16 March 2004
Article by Lukas Lorenc

On 22 December 2000 the Council of European Community adopted the Regulation, which removes barriers impeding the free enforcement of law and movement of judgments in civil and commercial matters in the whole territory of the European Union. The Regulation is binding for all member states of the European Union and is also directly applicable regardless of national procedural rules of individual member states and therefore with the exception of Denmark (Art.1 and 2 of the Protocol on the position of Denmark)it fully substituted the previous regulation valid in the territory of EU member states, i.e. the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968.

After the accession of the Czech Republic to the EU, the Regulation shall be the basic source of the Czech law in the field of international procedural law including issues of international jurisdiction and recognition and enforcement of foreign decisions. The provisions of the Regulation shall be valid in parallel with provisions of the Civil Procedure Code concerning international jurisdiction and competence of Czech courts in cases including an international element and with the provisions of the Law No.97/1963 Coll. on the International Private and Procedural Law. However, in case of discrepancy between these rules of the national Czech law and the Regulation the Regulation shall prevail.

It is necessary to mention in the first place that the provisions of the Regulation shall be generally applied in civil and commercial matters regardless of the type of court or panel with the exception of revenue, customs or administrative matters. Further, the Regulation does not apply to the status or legal capacity of natural persons, to rights of property arising out of a matrimonial relationship, wills and succession, to the procedure concerning bankruptcy and winding-up of insolvent companies or other legal persons, to judicial arrangements, compositions and analogous proceedings. The Regulation shall not apply also to procedures concerning social security and arbitration. The Regulation regulates the international jurisdiction and the competence of courts of Member States in the way that persons domiciled in a Member State shall be sued in the courts of that Member State in principle unless the Regulation provides for otherwise.

It includes cases of the so-called special jurisdiction corresponding to the cases of the so- called competence for choice given pursuant to the provision of Section 87 of the Civil Procedure Code. In these cases it is possible to sue besides the general court of the sued person also before the court competent pursuant to the provision on the special jurisdiction. For example, if a subject of the dispute is a contract, the competent court is the court of the place of performance of the obligation, which is the subject-matter of the contract; in matters relating to maintenance the competent court it is the court of the place, where the maintenance creditor is domiciled or habitually resident; in matters relating to tort, delict or quasi- delict it is the court of the place, where the harmful event occurred or may occur; in matters of a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, it is the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings.

The Regulation further provides for cases of the so- called exclusive jurisdiction. In these cases (unlike the special jurisdiction)it is the court competent pursuant to the provision on exclusive jurisdiction that shall decide in the matter and not the general court of the sued person. This applies mainly to jurisdiction in proceedings which have as they object rights in rem in immovable property or tenancies of immovable property, further in proceedings concerning the validity of the constitution, the nullity or the dissolution of companies or other legal persons, in proceedings concerned with the registration or validity of patents, trademarks, designs or other similar rights required to be deposited or registered, and also to procedures on the enforcement of judgments. The Regulation also enables the parties to choose the relevant court by agreement. Special provisions of the Regulation regulate the international judicial jurisdiction in matters relating to insurance and over consumer contracts.

As to the recognition of judgments, the Regulation fully cancels any limitations and provides explicitly that a judgment given in a Member State shall be recognized in the other Member States without any special procedure being required. Exceptions from this principle are admissible provided that the recognition were contrary to public policy in the Member State in which recognition is sought, in case that the judgment was given in default of appearance, if the defendant was not served in sufficient time and in such a way as to enable him to arrange for his defence,and if the recognition is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which the recognition is sought.

Under no circumstances may a foreign judgment, the recognition of which is sought,be reviewed as to its substance.The relevant body of the Member State, in which the recognition is sought, only reviews the judgment for the purpose of determining acceptability of the recognition pursuant to the Regulation. The Regulation regulates also issues of enforcement of judgment given by courts of a Member State in another Member State. It is provided here mainly that a judgment given in a Member State and enforceable in that State shall be enforced in another member State when,on the application of any interested party, it has been declared enforceable there. The application for enforcement shall be submitted to the court or competent authority indicated for each Member State in the list in Annex II to the Regulation. After filing the application, which shall accomplish elements provided for by the Regulation, the judgment shall be declared enforceable. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submission on the application. Only after the judgment is declared enforceable, the obligated person may file an appeal against this decision on the application for a declaration of enforceability. The appeal is to be lodged with the court indicated for each Member State in the list in Annex III to the Regulation.The decision on enforceability of the judgment may be cancelled in the appellate procedure or in the "appellate review " procedure only for reasons, for which such judgment might not be recognized in the given Member State.

In the Czech Republic, especially bilateral treaties regulate the recognition and enforcement of foreign judgments with individual states at the present time. The accession of the Czech Republic to the EU and the related direct applicability of the Regulation definitely make the recognition and enforcement of judgments given by a court of a Member State easier. As far as judgments of non-member states are concerned, bilateral treaties between individual EU members and third states, which regulate these issues, and the Brussels Convention and the Lugano Convention remain valid (provided that certain conditions stipulated by EU Law are fulfilled). In conclusion, it is possible to state that although the Regulation does not apply to the whole field of civil and commercial disputes, its acceptance and application makes the enforcement of law and the subsequent recognition and enforcement of judgments in the territory of the EU states (with the exception of Denmark) principally easier. Therefore, with the accession of the Czech Republic to the EU it is possible to expect the overall improvement of the situation in this field,particularly as to the recognition and enforcement of judgments given by the EU Member States in the Czech territory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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