Cross-Border Enforcement and the Brussels I-bis Regulation: Towards a New Balance between Mutual Trust and National Control over Fundamental Rights

Netherlands International Law Review (NILR) 2013, Vol. 60 Issue 3, p. 343-373

24 Pages Posted: 29 Dec 2013  

Xandra E. Kramer

Erasmus University Rotterdam (EUR), Erasmus School of Law; Utrecht University School of Law

Date Written: September 1, 2013

Abstract

The most important political priority of the European Commission in the recast of the Brussels I Regulation has been the abolition of exequatur. The policy to gradually abolish intermediate measures for the enforcement of judgments within the EU flows from the desire to enhance the free movement of judgments and the establishment of a genuine European area of justice. Whilst fundamental debate remained absent from the abolition of exequatur in several specific instruments, the abolition of exequatur including the grounds of refusal met with resistance during the negotiations on the recast of Brussels I. As a result of these negotiations, the new Brussels I Regulation – Brussels I-bis – will abolish the requirement to obtain a declaration of enforceability prior to enforcement, but will preserve the grounds of refusal at the enforcement stage. This paper evaluates the discussions regarding the abolition of exequatur in the broad context of the EU regulatory and legislative framework, and analyses and assesses the new rules on cross-border enforcement in the Brussels I-bis Regulation. It seeks an answer to the questions (a) whether the new Regulation strikes the right balance between the premise of mutual trust and the need for national control over fundamental rights, (b) to what extent the new regime increases the rights of the judgment debtor while protecting those of the judgment creditor, and (c) whether the outcome of the Brussels I recast will or should have further repercussions for other instruments on cross-border enforcement.

Keywords: cross-border enforcement, Brussels I Regulation, mutual trust, fundamental rights

JEL Classification: K33, K41, K42, K43, K49

Suggested Citation

Kramer, Xandra E., Cross-Border Enforcement and the Brussels I-bis Regulation: Towards a New Balance between Mutual Trust and National Control over Fundamental Rights (September 1, 2013). Netherlands International Law Review (NILR) 2013, Vol. 60 Issue 3, p. 343-373. Available at SSRN: https://ssrn.com/abstract=2372701

Xandra E. Kramer (Contact Author)

Erasmus University Rotterdam (EUR), Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

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