European Union: Recognition Of Foreign Judgments Under The Brussels Regime - The Public Policy Exception

Last Updated: 3 March 2016
Article by Kate Curneen and John O'Riordan

Most Read Contributor in Ireland, July 2017

Introduction

Last year, the European Court of Justice (the "CJEU") handed down an important decision in the case of Diageo Brands v Simiramida Case C – 681/13 in relation to the law on the recognition of judgments within the European Union ("EU") and in particular on the grounds available to resist a judgment being recognised in another EU country.

Background to the Brussels Regime

Under the Brussels regime1, a judgment of a court in one EU member state must be recognised and enforced in another member state unless the party that seeks to resist recognition can establish the existence of one of a number of specific grounds.

One of these grounds is that recognition of the judgment would be manifestly contrary to public policy in the member state in which recognition is sought.

Facts of the Case and Application of EU Law

In Simiramida, Diageo obtained an order from the Bulgarian court for the seizure of bottles of 'Johnny Walker' whisky on the basis that their importation into Bulgaria from outside the European Economic Area infringed Diageo Brands' trademark.

That order was granted but subsequently overturned. Diageo's appeal to the Bulgarian Supreme Court failed. Diageo also failed at first instance in the substantive claim in the matter which was in relation to the infringement of its trade mark. Diageo did not appeal this judgment, so it was the final decision of the Bulgarian court on the substantive matter.

Simiramida then initiated proceedings in the Netherlands seeking compensation for the damage it claimed to have suffered as a consequence of the seizure. In doing so it relied on the decision of the Bulgarian courts. Diageo argued that the Bulgarian judgment should not be recognised in the Netherlands as it was manifestly contrary to public policy within the meaning of Article 34(1) of the Brussels Regulation and that the Bulgarian court had misapplied EU law.

The CJEU found that it was necessary to interpret Article 34 strictly. The Court stated that the rules of recognition and enforcement are based on mutual trust and that as such judicial decisions in one member state should be automatically recognised in another member state. The CJEU further noted that in general terms Article 36 of the Brussels Regulation makes it clear that a judgment cannot be reviewed as to its substance during an enforcement application.

In dealing with the question of what amounts to something being manifestly contrary to public policy, the CJEU relied on previous decisions (such as that in the flyLAL-Lithuanian Airlines Case C-302/13), and emphasised that it would not assume the role of defining the content of the public policy of individual member states; instead its role was to review the limits within which EU member states could have recourse to public policy arguments.

In addition, the CJEU found that it was irrelevant whether the alleged error of the national court related to a rule of EU law rather than to one of national law. In each instance, if the public policy exception were to apply, there must be a breach of a rule of law regarded as "essential" in the legal order of the member state in which recognition was sought or a breach of a right recognised as being fundamental in that legal order. In the present case, that test was not satisfied in relation to the application of the trade mark protections in contention. The CJEU also found that the party alleging a breach of public policy must exhaust all legal avenues available in the member state giving judgment. In the instant case, if Diageo had appealed the finding of the Bulgarian court on the substantive matter, any error could have been corrected by the appeal court in Bulgaria. The Bulgarian Supreme Court would have been obliged to make a reference to the CJEU if there was any uncertainty in relation to the interpretation of the EU legislation in question.

Overview of Decision

Simiramida illustrates the difficulties that one will encounter in trying to resist the recognition of a judgment from another EU member state court on the basis that it is manifestly contrary to public policy. As indicated above, it will not suffice that a party can illustrate that the decision in question is wrong, be that as a matter of domestic or EU law; instead it must be demonstrated that there has been a manifest breach of a rule of law regarded as essential, or a breach of a right that is recognised as fundamental, in the legal order in which enforcement is sought.

Whilst the CJEU emphasised that it will not define scope of the so called public policy exceptions of any EU member state, it will review the limits within which EU courts have recourse to this concept. In addition, the CJEU did seem to suggest that if it is demonstrated that courts in EU member states were actively infringing EU law, even if the EU law in question is not in the 'essential' category, then this could lead to a refusal of recognition of a judgment in another member state. This argument was not raised however in Simiramida.

Implications of the CJEU's Decision

This decision makes clear that, save in exceptional circumstances; a party should exhaust all domestic opportunities for appeal prior to seeking to rely on public policy arguments in order to try to resist enforcement of that judgment in another EU member state.

Footnote

1 Article 34(1) of the Brussels Regulation, No. 44/2001 - recast Brussels Regulation, No. 1215/2012.)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.