Bad times for harmony: on the European Union, the United Kingdom and the Lugano Convention –

One yr after the UK submitted a request for reinstatement “in its personal proper” to the Lugano Conference, regarding jurisdiction, recognition and enforcement of judgments in civil and business issues, the European Fee has positioned itself – to the shock of many – towards this accession.

Since the UK formally left the European Union, on January 31, 2020, we had been in a transitional interval wherein Union legislation continued to use on this State. Nonetheless, the situation modified on December 31, 2020. From that second on, we needed to distinguish between the procedures began earlier than that date and people began afterwards.

Relating to the previous, though the decision issued is after December 31, 2020, Regulation (EU) No. 1215/2012 – higher generally known as “Brussels I bis” -, so {that a} homologation or exequatur process wouldn’t be essential to request compliance with mentioned decision.

Nonetheless, the Regulation doesn’t apply to procedures initiated as of January 1, 2021 and, consequently, every State should resort to its personal rules, which within the case of Spain could be Legislation 29/2015, on Cooperation. Worldwide Legislation in Civil Issues, requiring, now, a process of homologation or exequatur of the international decision earlier than beginning any process of execution of the identical. In different phrases, the social gathering favored by a decision issued in the UK should go, previous to, to an exequatur process earlier than the Spanish courts, and solely as soon as the validity of the decision has been acknowledged, would they’ve the opportunity of demanding compliance. .

For its half, the Lugano Conference –signed by the EU, Iceland, Norway and Switzerland– doesn’t exempt from the exequatur requirement for enforcement, however has a transparent benefit: the identical rule (that’s, the Conference) regulates each recognition and execution of selections akin to worldwide judicial competence. Which means the popularity of a Spanish judgment in the UK must be ruled by the Lugano Conference, and never by British nationwide provisions, which current extra demanding necessities than these of the Conference itself.

Likewise, you will need to observe that, though the UK ratified the Hague Conference on Alternative of Discussion board Agreements, this rule leaves it as much as every Contracting State to control the process for acquiring recognition and, the place applicable, compliance with international decision, a regulation that, normally, presents extra demanding necessities than these supplied for within the Lugano Conference.

On this context, the UK requested on April 8, 2020, the reincorporation of the Conference, because it had ceased to be a part of it when it left the European Union. For this, it wants the consent of all of the contracting events, which based on the provisions of article 72 “will endeavor to present their consent inside a most interval of 1 yr from the request of the depositary”.

And now, utterly unexpectedly, the European Fee has suggested its Member States to reject the UK’s request. The one formal motive on which he bases his advice, issued final week, is the shortage of membership of this State, as a consequence of the Brexi, the European Financial Space (EEA) or the European Free Commerce Affiliation (EFTA). On this sense, though the Fee has restricted itself to issuing a “suggestion”, it’s the European Council and the Member States themselves – which appear to be divided on this matter – that the ultimate choice corresponds.

In any case, the specialists appear to agree. Amongst them, Gálvez Pascual (DelCanto Chambers) factors out that it can’t be denied that the Fee’s choice, probably guided, to some extent, by the curiosity in punishing the “rebellious member”, represents an actual setback for the businesses and people of the UK, but additionally, and undoubtedly, for the pursuits of the remainder of the nations of the Union.

On this sense, the benefit for EU / EFTA firms buying and selling within the UK, and vice versa, is obvious. If this State had been allowed to rejoin Lugano, as a substitute of counting on a patchwork of bilateral treaties and “native” guidelines to find out each worldwide jurisdiction and the popularity and enforcement of judgments, a extra streamlined or harmonized rule would apply. .

Finally, within the absence of a greater settlement, the return of the UK to the Lugano Conference as an impartial Contracting State could be the most effective answer for all events concerned; A minimum of for the second.

Though they appear like unhealthy instances for harmony, this might not be the top of the story, whose destiny is now within the palms of the remainder of the members of the Union. It shouldn’t be forgotten that, whatever the opinion that the UK’s exit from the EU might advantage, the explanations and even the modus operandi, the remaining proceed – we proceed – to be members of an excellent group, a nation of countries whose benefits prolong past the borders of all their States. The pursuits at stake shouldn’t be forgotten both, and above all these ideas on which the Union – then referred to as the European Financial Neighborhood – was based mostly again within the 1960s.

As Jean Monnet mentioned, “Proceed, proceed, there is no such thing as a future for the folks of Europe apart from in union” [“Adelante, adelante, no hay más futuro para los pueblos de Europa que la unión”].

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