A guide to the UPC and the UP - Flipbook - Page 384
19-17 A judgment given by the Court will automatically be recognised in Member States which
are not a party to the UPCA. 19 In other words, the legal effects of the Court’s judgment will
automatically extend to these Member States. However, in order to enforce the judgment, the
procedural steps set out in the Brussels I Regulation (recast) have to be followed. The procedure
for enforcement is governed by the law of the Member State addressed and shall be enforced
under the same conditions as a judgment given in that Member State. 20 The law of the
enforcing country therefore applies to the execution process.
19-18 Before enforcement can be sought, a certificate of enforcement issued by the Court
(in the form set out in Annex I to the Brussels I Regulation (recast)) and a copy of the
judgment (if not already served) must be served on the defendant. The defendant is
also entitled to a translation of the judgment into the local language. 21 Enforcing the
decision is via the competent enforcement authority. The claimant needs to provide
the competent enforcement authority with: 22
– A copy of the decision which satisfies the conditions necessary to establish its
authenticity; and
– The certificate of enforcement issued by the Court and, where appropriate,
relevant information on the recoverable costs and the calculation of interest.
19-19 The recognition and enforcement of an order may be refused on the grounds of: 23
– Public policy;
– Under certain circumstances where the judgment was given in default of appearance;
– Irreconcilability with a judgment between the same parties given in the Member
State addressed;
– Irreconcilability with an earlier judgment in the same cause of action and between the same
parties, provided that the earlier judgment fulfils the conditions necessary for its recognition
in the Member State addressed; and
– A conflict with certain provisions of the Brussels I Regulation (recast) including art.24
on exclusive jurisdiction.
19-20 It has been pointed out that procedural public policy as a ground for refusing recognition
and enforcement will allow the courts of the Member States that are not contracting parties
to the UPCA to check that judgments rendered by the Court meet the fundamental principles
of procedural fairness, including equal treatment and reasonable opportunity for litigants
to assert or defend their rights and avoidance of any kind of illegitimate discrimination;
the right to be heard; or a reasoned explanation of the essential basis of the judgment. 24
However, the CJEU has demonstrated that resisting recognition and enforcement on the
grounds of public policy is difficult. The CJEU held that: 25
“the fact that a judgment given in a Member State is contrary to EU law does not justify that
judgment’s not being recognised in another Member State on the grounds that it infringes
public policy in that State where the error of law relied on does not constitute a manifest breach
of a rule of law regarded as essential in the EU legal order and therefore in the legal order of
19
20
21
22
23
24
25
art.36(1) Brussels I Regulation (recast).
art.41 Brussels I Regulation (recast).
art.43 Brussels I Regulation (recast).
arts 42 and 53 Brussels I Regulation (recast). The procedure in relation to enforcement of provisional including protective
measures is different – see art.42(2) Brussels I Regulation (recast).
art.45 Brussels I Regulation (recast).
Asensio P. A. De Miguel “Regulation 542/2014 and the international jurisdiction of the Unified Patent Court” IIC 2014, 45(8),
pp.868 to 888 at p.884.
Diageo Brands BV v Simiramida-04 EOOD (C–681/13) ECLI:EU:C:2015:471.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 374
