A guide to the UPC and the UP - Flipbook - Page 383
19-10 Where a decision has been rendered in a language other than the official language of the
Contracting Member State in which enforcement is sought, a translation must be produced
and served on the defendant prior to enforcement. 16 This rule acts as a safeguard to ensure
that the local enforcement authority can understand and correctly apply the decision.
19-11 In accordance with r.7(2) RoP, a certification of translation is only required upon explicit order of
the Court or challenge from the other party or if required by the RoP. In order to avoid any
potential delays (possibly intentional) generated by the party against whom enforcement is
sought, it would be advisable for the enforcing party to provide a certificate whenever a
translation is required.
19-12 As a final requirement, the Court must serve the notice and, where applicable, the translation of
the decision on the defendant under r.276 RoP. 17
Sanctions issued by national enforcement authorities for direct enforcement of orders
19-13 Non-compliance with orders of the Court will be punishable by the sanctions available under
national law for non-compliance with judgments and orders. 18 This aspect is not harmonised
by either the UPCA or the RoP and will therefore be subject to variations in local law practices.
The procedural law of the enforcing Contracting Member State determines such issues as:
the identity of the enforcement authority, the judicial or administrative nature of enforcement,
the grounds for refusing enforcement, the sanctions for non-compliance and whether those
sanctions are civil or criminal.
19-14 It will therefore be important to take local legal advice on the sanctions available in the
jurisdictions in which enforcement will be sought and the procedural requirements for
obtaining those sanctions. Where the non-compliant party’s activities would allow enforcement
in a number of jurisdictions, considerations as to the jurisdictions in which to enforce the
decision or order are a key part of the litigation strategy.
19-15 The nature of the sanctions available in a jurisdiction will very often depend on whether the
order or decision being enforced relates to an obligation to pay money, such as an order to pay
damages or costs, as opposed to an obligation to do something or to refrain from doing
something, as would be the case for injunctive relief. The types of sanctions available in a
number of key Contracting Member States are listed in the Annex to this chapter.
Enforcement in other EU Member States
19-16 The Brussels I Regulation (recast) is relevant where the Court’s decision needs to be enforced in
a Member State that has not yet signed or ratified the UPCA. This was confirmed by the newly
introduced art.71d Brussels I Regulation (recast) which states that:
“This Regulation shall apply to the recognition and enforcement of:
(a) judgments given by a common court which are to be recognised and enforced in a Member
State not party to the instrument establishing the common court; and
(b) judgments given by the courts of a Member State not party to the instrument establishing
the common court which are to be recognised and enforced in a Member State party to that
instrument.”
16
17
18
r.118(8) RoP.
See chapter 11 (Overview of Procedure and General Procedural Provisions) paragraphs 11-104 to 11-105.
See paragraphs 19-32 to 19-45 for the sanctions that the Court can apply through attaching periodic penalty
payments to its orders.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 373
