Belgium, (Brussels Morning Newspaper) The Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters under the auspices of the Hague Conference on Private International Law was concluded on 2 July 2019.
The European Union, represented by the Commission, participated actively in the negotiations leading to the adoption of the Convention, and the Parliament, through its Committee on Legal Affairs, constantly expressed its support for this effort and its goals. Given the current absence of a comprehensive international framework for the recognition and enforcement of foreign judgments in civil and commercial matters, EU citizens and businesses seeking to have such judgments issued in the Union recognized and enforced in a non-Union country face an unclear legal landscape.
The fallout of this confusing context is worsening due to the growth in international trade and investment flows. The solution to these issues depends on the accession of countries around the Globe to the predictable system of cross-border recognition and enforcement of judgments in civil or commercial matters offered by the Convention.
In this context and in the light of the trade between the EU and the US, the signature of the Convention by the latter appears remarkable and could pave the way, if followed by ratification, to a transatlantic trade in which businesses no longer have to rely solely on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
Apart from this specific relationship, the long-standing and overarching aim of legal certainty for citizens and businesses should lead the EU to a swift accession to the Convention that can set an example for other countries to join. In this regard, nevertheless, caution should be exercised in assessing whether the principles of rule of law and the procedural rights of the parties are fully observed in the third countries acceding to the Convention.
Should that not be the case, the EU would open its legal order to the recognition and enforcement of judgments that do not guarantee respect for those values. This course would also ensure the smooth implementation of the Convention, by preventing any refusals to apply it by the Member States based on a procedural flaw.
This would ultimately secure the legal certainty at the international level that the Convention aims at achieving. The Legal Service of the European Parliament was asked to provide an opinion on this institutional issue. The opinion confirmed the position of the Rapporteur. Commissioner Reynders subsequently informed the Committee of its own observation that “in the Council, it was decided to separate that question from the process of acceding to the Judgments Convention and to continue these discussions in a more horizontal manner”.
Commissioner Reynders also informed the Committee that its “legal view is that the specific situation set out in Article 29 of the Judgments Convention, which provides for the establishment of treaty relations as the default situation – subject to possible objections, implies that the decision to be made by the EU is whether to object to the accession of a third country”.
In the Commission’s view, decisions under Article 218 TFEU are required only where the EU intends to object to the establishment of such treaty relations, in line with its obligation to implement the EU’s obligation under international law in good faith. Commissioner Reynders, therefore, committed to consistently inform both the European Parliament and the Council of each intended accession of a third country to the Judgments Convention, with a view to discussing whether an objection should be considered.
The Commissioner further committed to take full account of the views expressed in the European Parliament and the Council when deciding whether to propose a decision for an objection. The Commission should fully respect the provisions of the Treaties while deciding on the accession of third countries to the Convention.
Following the correct procedure would guarantee the full involvement of the Parliament in the procedure and secure its oversight role over the Commission. We wish to underline the horizontal nature of such an institutional issue and its likelihood to emerge again for other Conventions that foresee this kind of third-country accession clause.
The Parliament should give its consent to the accession of the EU to the Convention as this instrument is of utmost importance for European citizens and businesses. Finally, while understanding the complex set of constraints that features every negotiation, we would have preferred to have a declaration, similar to the one proposed by the Commission on non-residential leases of immovable property, to safeguard employees and consumers.
Given the unamendable nature of the proposal and the fact that preventing the EU accession would produce even worse consequences, we welcome the decision to approve the draft Council decision concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. This is a big step towards a more inclusive and fair justice.