WITHDRAWAL OF THE UNITED KINGDOM FROM THE EUROPEAN UNION : Consequences for the service of procedural documents and the enforcement of court decisions

The essentials: Since January 1st, the United Kingdom has become a third country to the European Union. This note, intended primarily for our legal clients, presents the consequences of Brexit for the service of documents and forced recovery.

Generally speaking, from now on:

- In terms of service: the Hague Convention of 15 November 1965 applies

- In matters of execution: even if the situation is likely to change, in the absence of international conventions in force, for the time being, common law (provision of the Code of Civil Procedure in matters of exequatur) applies.

Brexit: the meaning of acts and forced recovery

Since 1 January 2021, to the extent that the trade and cooperation agreement has not provided for regulatory transitions in matters of civil judicial cooperation, European regulations have ceased to apply to the United Kingdom.

This break in continuity entails several legal consequences in terms of the service of documents (I) and the recognition and enforcement of court decisions (II)

I. Service of documents in the United Kingdom

The service of judicial and extrajudicial documents in civil and commercial matters in the European Union is governed by Regulation No. 1393/2007 of 13 November 2007. However, as of 1 January 2021, Regulation No. 1393/2007 is no longer applicable in the United Kingdom.

From 1 January, documents between the United Kingdom and France must be transmitted in accordance with the provisions of the Hague Convention of 15 November 1965.

(a) For acts originating from the United Kingdom:

The Judicial Commissioners will be able to receive documents from the United Kingdom under the same conditions as for other countries linked to France by the 1965 Hague Convention.

For the record:

1. According to Article 3 of this Convention, the document is transmitted directly by the competent authority of the requesting State to the central authority designated by the requested State (for France, the Office of International Civil and Commercial Mutual Assistance, Ministry of Justice).

2. The Convention provides for other methods of service:

- Article Art. 5(1)(a) : at the request of the applicant, it is possible to have the document served by means of service, carried out by a judicial officer. In this case, the Ministry of Justice shall forward the document, which has been addressed to it, to the National Chamber of Judicial Officers, which, in turn, shall address it to a judicial officer with territorial jurisdiction to serve it;

- Article 10 (c) : any person interested in legal proceedings may have legal documents served or notified directly by ministerial officers, civil servants or other competent persons of the destination State.

(b) For acts to the United Kingdom

The documents must be sent by the judicial commissioners to the central authority referred to in Article 3 of the Convention:

The Senior Master

For the attention of the Foreign Process Section

Room E16

Royal Courts of Justice

Strand

LONDON WC2A 2LL

All practical information on the practical arrangements for transmission can be found on the website of the 1965 Hague Convention.

Please note that all documents sent to the UK must be written in English or translated into English.

II. Recognition and enforcement of court decisions

EU regulation aims to facilitate and accelerate the free movement of court decisions. It is therefore appropriate to analyse the status of decisions rendered under Regulation No 44/2001 (A), Regulation No 1215/2012 (B) and enforcement procedures initiated after 31 December 2020 (C).

(a) Decisions made under Regulation No. 44/2001 (and therefore necessarily before 1 January 2021)

Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, known as the Brussels I Regulation, established a simplified exequatur procedure which allows a court decision to be enforced in another Member State.

Generally speaking, this regulation applies to decisions rendered and legal actions brought before January 10, 2015.

It follows that British judgments which have already been the subject of a simplified exequatur procedure in France, but which have not yet been executed before 1 January 2021, can be executed subsequently, without any further formality.

On the other hand, judgments which have not been the subject of an exequatur procedure before December 31, 2020, must be exequatured in accordance with French law (articles 509 et seq. of the Code of Civil Procedure).

(b) Decisions made under Regulation No 1215/2012

The most important new feature introduced by Regulation No. 1215/2012, known as Brussels I bis, applicable since 10 January 2015 , concerned the abolition of the exequatur procedure for judicial decisions rendered in the various Member States (Article 39 of Regulation No. 1215/2012).

Accordingly, a judgment given in the United Kingdom between 10 January 2015 and 31 December 2020 is enforceable in France by operation of law under Article 39 of the said Regulation and will not require an exequatur procedure in order to be enforced in France.

This criterion of distinction will apply to all decisions rendered under Regulation No 1215/2012. It will be essential for French bailiffs to determine the date on which the decision became enforceable in the United Kingdom.

• If the judgment has acquired enforceability in the United Kingdom before the exit date: it will benefit from the provisions of the Brussels 1a Regulation, even after the exit from the EU. French bailiffs can therefore enforce the decision, after its service, without further formalities.

• If the judgment is not legally enforceable in the United Kingdom before the exit date: an exequatur procedure must be initiated in France (Articles 509 et seq. of the Code of Civil Procedure) before the judgment can be enforced in France.

In practice, it is appropriate to check the date contained in the certificate attesting that the decision is enforceable in the country of origin (art. 53) and which is issued by the court of the country of origin. Indeed, the certificate must indicate the date on which the enforceability was obtained (Pt 4.4.1 of the certificate of Annex II). This date must be between 10 January 2015 and 31 December 2020.

(c) Decisions that became enforceable in the United Kingdom after 31 December 2020

EU regulations ceased to have effect in cross-border procedures with the United Kingdom initiated after the exit date.

The recognition and enforcement of court decisions will be governed by the national law of the requested State. In the absence of a Convention in place between the two countries concerned, the applicant will have to initiate an "exequatur" procedure in the foreign country.

As a reminder, the exequatur procedure in France is legally governed by the Code of Civil Procedure (Articles 509 to 509-7 CPC).

In fact, when a person wants to enforce a foreign decision in France, three conditions have been set by the French judge to grant the exequatur:

• the jurisdiction of the foreign judge who rendered the decision in question;

• compliance with substantive and procedural international public policy;

• the absence of fraud against the law.

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Do not hesitate to contact us to find out more:

You have problems with unpaid commercial debts with one of your British clients, unpaid rent with an expatriate or international recovery of child maintenance.

Send us an email and ask us your question : lefebvre.huissier@justice76.fr