The Gazette 1989

GAZETTE

APRIL 1989

An Introduct ion to the Jurisdiction of Courts and Enforcement of Judgments (European Communi t ies) Act, 1988

The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commerc i al Ma t t e rs signed at Brussels on the 27 th day of September, 1968 , was drawn up by the Member States of the European Commun i ty in order t o s imp l i fy t he f o rma l i t i es governing t he rec i procal recognition and enforcement of j udgments in accordance w i th Article 2 2 0 of the Treaty of Rome. In addition to the original 1 9 68 Convention, there is a Protocol of 1971 on its Interpretation by the European Court of Justice. There are also the Accession Conventions of 1 9 78 and 1982 mak i ng the necessary adjustments to cater for the accession of Denma r k, Ireland, the Uni ted Ki ngdom and Greece. Ireland recently ratified the Convention and it came into force here on the 1st day of June, 1 9 88 by virtue of the Jurisdiction of Cou r ts and En f o r c eme nt of J u d gme n ts ( Eu r ope an Communi t i es) Act, 1988 (no. 3 of 1988) and Statutory Inst rument No. 91 of 1 9 8 8 , wh i ch is the commencement order for the Act.

excluded from the scope of the Convention. Article 1 of the Convention reads:- "This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. The Convention shall not apply to:- 1) the status or legal capacity of natural persons, rights in property arising out of a matri- monial relationship, wills and succession; 2) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrange- ments, compositions and analogous proceedings; 3) social security; 4) arbitration." Article 1 of the Convention gives rise to two questions: What are civil and commercial matters? and what is a court or tribunal? "Civil and Commercial matters" are ordinary private law matters. They do not include criminal matters or public law matters, so revenue, customs and administrative matters are there- fore excluded. Any questions that may arise as to whether or not a particular case falls within the scope of the Convention are to be decided on the basis of Community law.

The purpose of the Convention is to provide rules for the deter- mination of the jurisdiction of the Courts of the Contracting States and for the recognition and enforcement of judgments between these States, in civil and commercial matters. The Con- vention has been incorporated directly into Irish law and its text is set out in the First Schedule to the 1988 Act. Section 1 of the Act defines Contracting State as:- "(a) one of the original parties to the 1968 Convention (Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands), or (b) one of the parties acceding to the 1968 Convention under the 1978 Accession Convention or the 1982 Accession Convention (the State, Denmark, the United Kingdom and the Hellenic Republic)." Section 3 provides that the 1968 Convention together with the 1971 Protocol and the 1978 and 1982 Accession Conventions shall have the force of law in the State. The provisions of the Convention apply only to legal proceedings instituted after the entry into force of the Convention in the State of origin and, where recognition or enforce- ment of a judgment or authentic

instrument is sought, in the State addressed. (Article 34 of the 1978 Accession Convention - Third Schedule to the 1988 Act). THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS The main effect of the Convention in relation to the enforcement of

by Eileen McAuley, B.C.L. Barrister-at-Law

foreign judgments is procedural. Prior to the 1st day of June, 1988, apart from maintenance orders enforceable under the Maintenance Orders Act, 1974, foreign judg- ments for a liquidated sum of money only could be enforced in Ireland. This was done by bringing fresh proceedings on foot of the foreign judgment in an Irish Court involving unnecessary delay and expense. In contrast to this, the Convention provides for almost automatic recognition of judgments granted in the courts of other Contracting States together with a quick and simple enforcement procedure. Certain classes of judgment are

Eileen McAuley.

94