INNOVATIONS OF THE BRUSSELS IBIS REGULATION

THE TRANSITIONAL REGIME

Since 10 January 2015, the recast Brussels I Regulation (Brussels Ibis) has applied in all EU Member States (Article 80 Brussels Ibis) for proceedings initiated after that date. In practice, however, this date has not marked any major changes. One reason is found in the transitional regime of Article 66 Brussels Ibis. According to its first paragraph, the new Regulation only applies to proceedings which are initiated after this date. The more important provision is found in the 2nd paragraph which states that the new enforcement regime of Articles 36 ff . of the Recast only applies to enforceable titles which were obtained in proceedings under the new Recast. This provision protracts the application of the new regime considerably – enforcement cases under the new regime have not yet reached the courts in Member States where Articles 36 ff . of the old Brussels I Regulation are still being applied. Therefore, my contribution in this volume has a limited scope. It cannot address the new – and problematic – direct enforcement regime of the Recast because while practice in the EU Member States is now well underway, case-law interpreting the new Regulation has not yet reached us in earnest. Even so, the direct enforcement regime is arguably the most important change of the recast Regulation.

In the meantime, the German Federal Civil Court (Bundesgerichtshof/BGH) has sent a first preliminary reference to the Court of Justice of the EU (CJEU) which addresses direct enforcement under the Recast. The BGH referred several practical questions on the form in Annex I, to the CJEU, which demonstrate that the (complicated) German law on provisional enforceability is difficult to reconcile with the categories of the form. However, the preliminary reference demonstrates the practical difficulties of direct enforcement under the Brussels Ibis Regulation. Under the former regime, recognition proceedings permitted the adaptation of a foreign judgment to the specificities of the enforcement laws of the Member State of enforcement. Under the Recast, the form (Article 53 Brussels Ibis Recast) replaces the (individual) adaptation of a foreign judgment in exequatur proceedings. It remains to be seen whether the form in Annex I will be sufficiently sophisticated to replace the adaptation process.