CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ RESPONSIBILITY OF THE STATE FOR THE FOREIGN JUDGMENTS … States for any reason. A decision coming from another Member State should be treated as a domestic decision. The possibilities for examining decision should be concentrated in the country of its origin, i.e., the parties should, where necessary, use any legal remedies in the State in which the decision was taken and not rely on the possibility of opposing the foreign decision in the State in which recognition or enforcement is requested. 19 Even today, a Member State must recognize or execute selected types of decisions without any possibility of denying their recognition and enforcement, 20 for others it is possible to deny their recognition or execution only because of a conflict with a previously issued decision, or for some decisions, even if the defendant has already voluntarily paid due amount. 21 The remaining decisions that fall within the scope of EU rules can be refused to be recognized and enforced if there is any of limited set of obstacles, which usually include a public policy exception and a breach of the rights of the defence. However, the use of a public policy exception among EU Member States is significantly limited by the case-law of the Court of Justice of the European Union. 22 So it was only a matter of time when a Member State of the EU, or its authority deciding on the recognition and enforcement of a foreign decision coming from another Member State will find itself in a situation where its obligations under EU law (judicial cooperation in civil matters) will compete with the obligations from the Convention for the Protection of Human Rights and Fundamental Freedoms. This moment came when the application of Sofia Povse and Doris Povse was submitted to the Court. In the case of Povse against Austria , 23 it was exactly about the enforcement of one of the aforementioned decisions in which the Member State had no discretion. The decision to be enforced by the Austrian competent authorities was the order for return of a child, wrongfully removed by the mother, from his habitual residence in Italy, where they lived with the child’s father. 19 Therefore, in order to preserve the rights of defence of the parties, the EU acts regulating the recognition and enforcement of foreign decisions usually place emphasis on observance of minimum procedural standards i.e. on appropriate service of documents instituting the proceedings and existence of the effective remedy, see BOGDAN, M., PETERGÁS SENDER, M.: Concise Introduction to EU Private International Law . Amsterdam: Europa Law Publishing, 2019, p. 84. 20 These are the following decisions: In family lawmatters judgment on rights of access certified according Article 41 of Regulation (EC) no 2201/2003, Brusel II.bis; judgment on the return of a child certified according Article 42 of Regulation (EC) no 2201/2003, Brusel II.bis; maintenance decision within the meaning of Article 17 of the Regulation (EC) no 4/2009. 21 In civil and commercial matters European Enforcement Order according to Regulation (EU) no 805/2004 (Article 5 and 21); European Order for Payment according to Regulation (EC) no 1896/2006 (Article 19 and 22); and judgment delivered in a European Small Claims procedure according to Regulation (EC) no 861/2007 (Article 20 and 22). 22 Judgment of 23 October 2014, Latvian Airlines , C-302/13, ECLI:EU:C:2014:2319, § 47: “… according to settled case-law, while the Member States in principle remain free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own national conceptions, what the requirements of their public policy are, the limits of that concept are a matter of interpretation of that regulation. Consequently, while it is not for the Court to define the content of the public policy of a Member State, it is none the less required to review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from a court in another Member State ”. See also BOGDAN, M., PETERGÁS SENDER, M.: Concise Introduction to EU Private International Law . Amsterdam: Europa Law Publishing, 2019, p. 76 et seq. 23 Sofia Povse and Doris Povse v. Austria (dec.), no. 3890/11, ECHR 2013 (Retrieved from https://hudoc.echr.coe.int).

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