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Civil ProcedureNiccolò D'AndreaExequatur sur exequatur ne vaut. The circulation of a foreign exequatur order under review by the Court of Milan

Academics from Italy and abroad, along with some countries’ case law, have sometimes discussed the effects of an exequatur order (sometimes called recognition orders or merger judgments) outside its jurisdiction of origin. Particularly, it has been debated whether it can circulate and constitute a ground for legal enforcement in the same way as decisions on the merit. A recent ruling by the Court of Milan in matter of alimonies gives an opportunity for some considerations in this regard.

The circulation of foreign judgments in general

Judgments (as a typical expression of authority of their State of origin) may find recognition and enforcement abroad where this is permitted (a) by private international law provisions of the specifically requested state or, in any case, (b) by supranational sources in force between the relevant countries. These may be bilateral agreements, multilateral conventions (e.g., the former 1968 Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters) or, in the context of the European Union, sources that derive their force from EU treaties. The immediate reference today is to the current Regulation 1215 of 2012, so-called Brussels I (recast), which governs the matter once covered by the 1968 Brussels Convention.

In the specific matter of maintenance obligations, the EU Regulation 4 of 2009 governs jurisdiction, recognition and enforcement (as well as the applicable law itself) of decisions rendered in this regard[1].

Exequatur and the concept “mutual trust” in the most recent EU Regulations.

Generally, the full admission of a foreign judgment into the “destination jurisdiction” occurs following an exequatur procedure, under which the former is declared officially enforceable. In Italy, Law 218 of 1995 provides for (i) the immediate recognition of foreign judgments in the presence of the conditions indicated in Art. 64; (ii) a procedure to be promoted at the request of the interested party, where such immediate recognition is contested or, in any case, so that enforcement can be promoted.

However, some recent EU sources (including the regulations mentioned earlier and others) grant judgments from EU Member States not only immediate recognition, as our private international law already does, but also immediate enforceability, i.e., the aptitude to ground enforcement. The reason why this was deemed appropriate rests, on the one hand, in the “mutual trust in the administration of justice within the Union[2], and ,on the other, in the purpose of containing the length and cost of proceedings, which is especially relevant in matters such as maintenance[3] . Thus, taking Regulation 4 of 2009 as an example: (i) “A decision given in a Member State … shall be recognized in another Member State without any special procedure being required and without any possibility of opposing its recognition”. (Art. 17, Paragraph I). (ii) The same judgment, if enforceable in the Member State of origin, shall enable legal enforcement anywhere in the Union “without the need for a declaration of enforceability” (Art. 17, Paragraph II). In these circumstances, from an Italian perspective, the exequatur procedure set forth under Law 28 of 1995 becomes no longer needed, and so are, therefore, the requirements mentioned therein. Rather, the party against whom the enforcement is sought, if he wishes for it to be denied, must act before the court of the Member State of the enforcement itself on the (very limited) grounds on which a refusal of enforcement is possible, without prejudice to the fact that the foreign judgment cannot be the subject of any review of its substance.

The (non)recognition of a foreign exequatur: the principle exequatur sur exequatur ne vaut

The event of a decision being invoked outside of its jurisdiction of origin, however nowadays frequent, may become rather less so if the foreign decision is, in fact, an exequatur decision in itself. In this case, the exequatur (or merger decision) merely gives entry to the decision of a third state pursuant to the recipient’s private international law, typically without any review of its merit. As anticipated, the issue has sometimes been addressed (albeit, to the best of our knowledge, without specific reference to decisions in matters of maintenance) by internationalist doctrine, especially non-Italian, which now considers the principle that exequatur orders are not themselves susceptible to recognition and, therefore, do not have effect beyond the borders of the issuing state. This orientation, the expression of which is the French say “exequatur sur exequatur ne vaut[4], is also embraced by the Italian doctrine[5] and is referred to by the case law of certain foreign jurisdictions (notably France and Luxembourg[6] ). It derives its justification from the fact that no check on recognition requirements upon an exequatur order is possible – or even sensible, since the latter, by definition, could not contain any ruling concerning rights asserted in court, but would have to limit itself to scrutinizing the existence of certain requirements for the admissibility of a foreign decision with respect to a specific target order. This orientation also considers that said “compatibility screening” would be conducted, to a certain extent, on specific criteria (public policy first and foremost) of the destination jurisdiction. Hence, on the one hand, this would equal to a waiver to any verifications on the foreign decision “of origin”, which, by contrast, is the sole decision on the merit at issue. On the other, albeit the foreign exequatur results from a verification procedure made abroad, its outcomes disregard the requirements and limitations that are proper of the new destination jurisdiction, and as such cannot be relevant for the latter.

The orientation of the Court of Milan

A Milan court ruling of last February took the opportunity to express a case law orientation (as far as is known, for the first time) precisely on the issue of the exequatur circulation. In that case, a person at the time residing abroad was ordered by a judgment of a Moscow court to pay alimony in a very significant proportion of his annual income. Years later, at the request of creditors, an exequatur order was issued in Luxembourg, the debtor’s place of residence at the time. Still later, the creditors obtained from the registrar of the Luxembourg court the certificate set forth under Regulation 4/2009 to ground enforcement in other EU member states and served the debtor with an ‘atto di precetto’, which preludes to legal enforcement in Italy. The debtor filed an opposition, arguing that there was no enforcement title in Italy and, in any case, that the claim was contrary to public policy.

The objections were upheld by the court based on a twofold order of considerations. First, the court examined the Regulation 4/2009 and the exequatur order at stake and found that there was no genuine “decision in matters of maintenance obligations”, in the meaning contemplated by the European rules. The court so ruled in view of the peculiar nature of exequatur orders, which must be distinguished from decisions on the merit not only in terms of their prerequisites, but also for their nature, scope and for the structure of each procedure. Therefore, in the court’s view, the decisions relevant under the Regulation are “on the merits” and that, therefore, there must be a “Member State of origin” that ruled “on the merits” (in fact, under the Regulation and provided that some conditions are met, the “court of origin” may be addressed with an application for “review”). This is because, in essence, the immediate recognition and enforcement granted under the Regulation to “decisions in matters of maintenance obligations” from Member States is justified only in the context of a broader harmonization, which, clearly, cannot exist in relation to decisions rendered by third countries. Secondly, the court considered that Article 24 of Regulation 4/2009 permits the refusal of recognition if it is “manifestly contrary to the public policy of the Member State … applied for” and, hence, noted that the above applies a fortiori with reference to judgments from third countries. Otherwise, the public policy screening would become ‘exchangeable’ among countries. Instead, the immediate circulation within the Union of exequatur orders rendered by any of its member states would result in the deprivation of all control in this regard by all other states of the Union, which, it may be added, would result in an unintended extension to the benefit of third countries of the “mutual trust in the administration of justice within the Union” referred to above.

By way of a conclusion, there is further evidence to suggest that, in the intentions of the Union legislature, the particular regime of “mutual trust” among member states should be interpreted in such a way that it cannot be ‘unduly extended’ to third countries. For example, the preambles of Regulation 1191/2017 (which “promotes the free movement of citizens by simplifying the requirements for the presentation of certain public documents in the European Union”, as its heading reads) eloquently state that “public documents issued by authorities of third countries should be excluded” from its scope, “even if they have already been accepted as authentic by the authorities of a member state. Finally, the EAPIL (European Association of Private International Law) Working Group took the position that, in the forthcoming reform of the Brussels I Regulation (recast), the principle exequatur sur exequatur ne vaut be established “as the basic rule”. Indeed, according to the drafters of the proposal, judgments incorporating other judgments from third states are “highly problematic as they allow judgments from third states-to which the principle of mutual trust does not extend-to circulate freely within the EU without any closer scrutiny”.

[1] i.e., decisions “in matters relating to maintenance obligations”: although such obligations are not expressly defined, those (i) that arise from family relationships and (ii) involve periodic maintenance payments may be considered as such. Decisions on maintenance obligations, moreover, are expressly (and appropriately) excluded from the scope of the Brussels I (recast) Regulation.

[2] See EU Reg. 1215 of 2012, recital no. 26.

[3] Specifically, EU Reg. 4of 2009, Recital 22, notes that “In order to ensure swift and efficient recovery of a maintenance obligation and to prevent delaying actions, decisions in matters relating to maintenance obligations given in a Member State should in principle be provisionally enforceable.”

[4]The result is the same: an exequatur does not travel, recognized long ago by the European mantra of exequatur sur exequatur ne vaut”: P. Hay, Resolving International Conflicts: Liber Amicorum Tibor Varady, 2009, p. 144.

[5] V. Giugliano, Le opposizioni all’esecuzione della sentenza straniera nel Regolamento (UE) 1215/2012, doctoral dissertation, University of Milan, a. a. 2017/2018, p. 19.

[6] Luxembourg Court of Appeal, decisions dated January 13 and March 31, 2021.



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