Luc Demeyere April 8 2003 Opposition to Cross-Border Enforcement Must Not Consider Merits Allen & Overy LLP | Litigation - Belgium Luc Demeyere Litigation Background Facts Decision Comment BackgroundUnder Article 38 of the Brussels Convention(1) the court with which an opposition is lodged against the enforcement of a judgment issued in another member state may (on the application of the party against which enforcement is sought) stay the proceedings if an ordinary appeal has been lodged against the judgment in the member state of origin, or if the time for such an appeal has not yet expired. Council Regulation 44/2001,(2) which entered into force on March 1 2002, superseded the Brussels Convention. Article 46 of the regulation superseded Article 38 of the convention.According to the case law of the European Court of Justice, a court that rules on an opposition to the enforcement of a judgment issued in another member state may not consider arguments on the merits of the case when deciding whether to suspend the ruling. Only the courts of the member state in which the judgment originated may consider such arguments.FactsThe Dutch district court issued a judgment which one of the parties sought to enforce in Hasselt, Belgium. This party obtained enforcement of the Dutch judgment from the Hasselt Court of First Instance.However, the other party (the plaintiff in opposition) filed a third-party opposition against the enforcement, asking the Hasselt court to suspend the decision. The plaintiff in opposition had also filed an appeal against the judgment of the Dutch district court in the Netherlands in the meantime. The plaintiff in opposition requested the Hasselt court to suspend its decision on enforcement until the Dutch appeal court passed judgment on the merits of the case. It based its claim on Article 38 of the Brussels Convention.DecisionOn October 22 2002 the Hasselt Court of First Instance held that it did not have jurisdiction to interfere in the debate on the merits of the case before the Dutch court.(3)The court noted that the plaintiff in opposition supported its request to suspend the enforcement proceedings with arguments related only to the merits of the case before the Dutch court.Since the arguments raised by the plaintiff in opposition were already, or could have been, used before the Dutch court, the court rejected the third-party opposition. Meanwhile, the Dutch judgment could be enforced in Belgium, pending the Dutch appeal proceedings.CommentThis decision conforms with the purpose and spirit of the Brussels Convention (now Council Regulation 44/2001). The objective of the convention is to stimulate the free movement of judgments in civil and commercial matters within the European Union, and consequently to prohibit courts from reviewing the substance of judgments from another member state. Few arguments may thus be brought before the enforcing judge, and as a consequence the number of cases in which an enforcement decision may and will be suspended is limited. For further information on this topic please contact Luc Demeyere at Allen & Overy by telephone (+32 3 287 7222) or by fax (+32 3 287 7244) or by email ([email protected]). Endnotes(1) Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of September 27 1968.(2) Council Regulation 44/2001 of December 22 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, OJ L12, January 16 2001.(3) Court of First Instance Hasselt (Belgium), October 22 2001, AJT, 2001-2002, p1013.