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Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Under EU Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, only judgments on civil and commercial matters can be recognised and enforced.
The regulation explicitly excludes the following matters:
- status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;
- bankruptcy, proceedings relating to the winding up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;
- social security;
- maintenance obligations arising from a family relationship, parentage, marriage or affinity; and
- wills and succession, including maintenance obligations arising by reason of death.
How are foreign judgments subject to appeal treated?
According to Article 684 of the New Code of Civil Procedure (NCPC), the Superior Court of Justice must stay the proceedings if:
- the foreign decision is subject to an appeal in the state of origin; or
- the deadline to file an appeal in the state of origin has not yet expired.
The Superior Court of Justice may also make the execution of the decision subject to the lodging of a security which it determines.
During the appeal period as provided in Article 682 of the NCPC and until it is ruled on, only provisional measures can be taken against the property of the party against whom enforcement is sought.
The decision granting enforcement automatically entails the authorisation to carry out these measures.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
According to EU Regulation 1215/2012, parties wishing to invoke in Luxembourg a judgment given in another EU member state must provide:
- a copy of the judgment in order to establish its authenticity; and
- a certificate issued by the court of origin.
The Luxembourg court may request a translation or transliteration of the certificate. The court may also ask applicants to provide a translation of the judgment rendered in the state of origin if it is unable to proceed without such a translation.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
In order to be enforceable in Luxembourg, a judgment rendered in another state must be enforceable in its state of origin.
Luxembourg public policy sets out additional requirements such as compliance with due process and proper appearance in court.
Where the foreign judgment is not subject to an EU law or treaty, the general rules of Luxembourg law govern recognition and enforcement requirements.
The Luxembourg court will check whether:
- the decision is enforceable in the country of origin;
- the original judge had jurisdiction to make a decision according to Luxembourg private international law;
- the original judge had jurisdiction to make a decision according to its own procedural law;
- the foreign court has applied the law as designated by Luxembourg’s conflict of laws provisions;
- the foreign procedure rules have been respected;
- the defendant had proper notice of the proceedings;
- the decision does not contravene any Luxembourg public policy rules; and
- the foreign decision contains an order that can be executed.
What is the limitation period for enforcement of a foreign judgment?
There is no limitation period for proceedings to grant the recognition and enforcement of a foreign judgment. Luxembourg courts can enforce only foreign judgments which are enforceable in their country of origin.
Therefore, a timeframe for the recognition and enforcement of a foreign judgment could depend on the law applicable to the foreign judgment in its country of origin.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
According to EU Regulation 1215/2012, the recognition of a judgment may be refused if:
- such recognition is manifestly contrary to Luxembourg public policy (ordre public);
- it was given in default of appearance (ie, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable them to arrange their defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for them to do so);
- it is irreconcilable with a judgment given between the same parties in the EU member state addressed;
- it is irreconcilable with an earlier judgment given in another EU member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the EU member state addressed; or
- it conflicts with EU Regulation 1215/2012.
The enforcement of a judgment shall be refused where one of the grounds for refusal of the recognition of a judgment exist.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
According to Article 42 of EU Regulation 1215/2012, in order to have a foreign judgment recognised and enforced in Luxembourg, applicants must provide the competent district court with:
- a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
- the certificate using the form set out in Annex I of the regulation.
The competent district court may request a translation or transliteration of the certificate. The court may also ask applicants to provide a translation of the judgment rendered in the state of origin if it is unable to proceed without such a translation.
Those copies must be provided to the court clerk, who checks the authenticity of the documents.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
A decision is not recognised if its recognition is manifestly contrary to the public policy of the requested EU member state, particularly regarding its fundamental principles. The term ‘manifest’ suggests a desire to retain a restrictive definition of the public order. The judge of a requested state may invoke the concept of ‘public policy’ only in the event that the recognition or enforcement of the decision would unacceptably prejudice the judicial order of the requested state by undermining a fundamental principle. The infringement must constitute a manifest violation of a rule of law considered essential in the legal order of the requested state or of a right recognised as fundamental in that legal order (Court of Appeal, 30 June 2011).
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
Under Luxembourg law, a Luxembourg district court cannot review the personal and subject-matter jurisdiction of the foreign court that issued the original judgment.
Luxembourg courts cannot interfere with the first judgment, except if the judgment compromises Luxembourg public policy.
According to Article 52 of EU Regulation 1215/2012, a judgment rendered in an EU member state may under no circumstances be reviewed as to its substance in that EU member state. Therefore, the Luxembourg courts have no power to review the substance of original judgments rendered in other EU member states.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
The recognition and enforcement of a foreign judgment may be refused where the foreign judgment is irreconcilable with concurrent proceedings or conflicting judgments involving the same parties or dispute.
Where a Luxembourg conflicting domestic judgment already exists, the recognition and enforcement of the foreign judgment is denied.
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