THE CURRENT FRAMEWORK OF CROSS-BORDER ENFORCEMENT IN THE EU

In contrast with the former Brussels I Regulation, the European Enforcement Order (EEO) Regulation, the European Order for Payment (EOP) Regulation, the Regulation on the European Small Claims Procedure (ESCP) and the European Account Preservation Order (EAPO) Regulation abolished the traditional requirement of obtaining a declaration of enforceability and thus soon became known as the so-called ‘second generation’ of EU Regulations on civil procedure. The relationship between the Brussels I Regulation and the second-generation Regulations was characterised by their optional nature: within the respective scope of application of the various Regulations, creditors were generally allowed to freely choose between enforcing a claim under Brussels I or by means of the second-generation Regulations. Empirical studies already conducted before the Brussels I recast of 2012 showed, however, that the second-generation Regulations were, in most Member States, only applied in a relatively small number of cases. While at first the second-generation Regulations had, from a claimant's point of view, the advantage of dispensing with the exequatur requirement, the recast of the Brussels I Regulation in 2012 has significantly changed this equation because an exequatur is no longer required under the latter Regulation either. Thus, weighing the pros and cons of choosing between one of the various options of cross-border enforcement has become more difficult. It is very likely that practitioners familiar with standard Brussels Ibis procedures will only opt for one of the second-generation Regulations if there is a clear benefit that outweighs the time, efforts and costs required to familiarise themselves with a less frequently used and therefore less well-known legal instrument. Accordingly, it is a central question as to whether the abolition of exequatur in the Brussels Ibis Regulation has further decreased the appeal of the second-generation Regulations for practitioners or whether recent reforms – in particular the introduction of the new EAPO Regulation and the revision of the ESCP and EOP Regulations in the year 2015 – have led or may lead to a rising demand in this regard.

THE ABOLITION OF EXEQUATUR

THE TRADITIONAL BRUSSELS I AND LUGANO MODEL

Already under the Brussels I Regulation, a judgment was ‘recognised in the other Member States without any special procedure being required’ (Art. 33(1) Brussels I Regulation).