The Private International Law of Authentic Instruments 9781509907632, 9781509907656, 9781509907625

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THE PRIVATE INTERNATIONAL LAW OF AUTHENTIC INSTRUMENTS This book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentious legal proceedings. The author takes a two-part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, the typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each. Rigorous, authoritative and comprehensive, this book will be an invaluable tool to all practitioners in the field. Volume 30 in the series Studies in Private International Law

Studies in Private International Law Recent titles in the series Maintenance and Child Support in Private International Law Lara Walker The Choice of Law Contract Maria Hook The Nature and Enforcement of Choice of Court Agreements: A Comparative Study Mukarrum Ahmed Cross-Border Litigation in Europe Edited by Paul Beaumont, Mihail Danov, Katarina Trimmings and Burcu Yuksel Forum (Non) Conveniens in England: Past, Present, and Future Ardavan Arzandeh Commercial Issues in Private International Law: A Common Law Perspective Edited by Vivienne Bath, Andrew Dickinson, Michael Douglas and Mary Keyes Jurisdiction and Cross-Border Collective Redress: A European Private International Law Perspective Alexia Pato Rethinking Judicial Jurisdiction in Private International Law Milana Karayanidi Economic Sanctions in EU Private International Law Tamás Szabados Clawback Law in the Context of Succession Jayne Holliday Place of Performance: A Comparative Analysis Chukwuma Okoli Private International Law in Nigeria Chukwuma Okoli and Richard Oppong Planning the Future of Cross Border Families: A Path Through Coordination Edited by Ilaria Viarengo and Francesca Villata

The Private International Law of Authentic Instruments Jonathan Fitchen

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Jonathan Fitchen, 2020 Jonathan Fitchen has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Fitchen, Jonathan, author. Title: The private international law of authentic instruments / Jonathan Fitchen. Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing Plc, 2020.  |  Series: Studies in Private International Law ; volume 30  |  Includes bibliographical references and index. Identifiers: LCCN 2020022695 (print)  |  LCCN 2020022696 (ebook)  |  ISBN 9781509907632 (hardcover)  |  ISBN 9781509907625 (ePDF)  |  ISBN 9781509907649 (EPub) Subjects: LCSH: Conflict of laws.  |  Conflict of laws—European Union countries.  |  Conflict of laws—Great Britain. Classification: LCC K7040 .F59 2020 (print)  |  LCC K7040 (ebook)  |  DDC 340.9—dc23 LC record available at https://lccn.loc.gov/2020022695 LC ebook record available at https://lccn.loc.gov/2020022696 ISBN: HB: 978-1-50990-763-2 ePDF: 978-1-50990-762-5 ePub: 978-1-50990-764-9 Typeset by Compuscript Ltd, Shannon

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SERIES EDITOR’S PREFACE Dr Jonathan Fitchen builds on his unrivalled expertise in the English-speaking world on the private international law of authentic instruments, evidenced primarily in a series of significant articles in the Journal of Private International Law, to produce this substantial monograph. It is the first English language monograph on the private international law of authentic instruments. It is highly scholarly with full referencing of the literature in English, French and German. As the writer acknowledges it is essentially a book on EU private international law of authentic instruments. Nonetheless it does cover French and German substantive law on authentic instruments and, briefly, some global private international law, notably in the HCCH Apostille Convention 1961 (pages 93–94) and on the Maintenance Convention and Protocol 2007 in the chapter on the EU Maintenance Regulation. The writer also shows proper awareness of the international dimension, and its impact on the development of EU private international law, in the chapter on the various iterations of Brussels II by referencing the HCCH Divorce Convention 1970, Child Abduction Convention 1980 and the Children’s Convention 1996. It would have been a lot to expect the book to cover all aspects of private international law of authentic instruments, and similar private agreements with some form of State authorisation, given how much new ground the author is breaking in English language scholarship. Perhaps one can hope that the author will have a chance in a subsequent edition of the book to develop its international and comparative aspects to more fully reflect the comprehensive nature of its title. The analysis of the elements of the EU Private International Law instruments dealing with authentic instruments is properly set in the broader context of what those instruments are trying to achieve. The writer examines the negotiating history of each instrument carefully with full references to case law and existing, significant academic analysis. The UK reader will be fascinated to see some insightful analysis of Scots law on authentic instruments and on intra-UK private international law at pages 14, 98, 166 and 341–342. The breadth of the book’s insights is illustrated by the careful exposition of the human rights concerns posed by the lack of a public policy exception to the enforcement regime of the European Enforcement Order Regulation at pages 248–253 and the excellent critique of the Regulation at page 257. It is one EU Regulation that will not be missed in the UK at the end of the implementation period after the UK’s withdrawal from the EU.

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Series Editor’s Preface

The book is completely up to date and this is perhaps best illustrated by the comparative work on the use of authentic instruments, and other private agreements gaining some kind of State authorisation in EU Member States, on divorce and parental responsibility (at pages 338–343) and in the analysis of the new provisions relating to these matters in the Brussels IIb Regulation (2019/1111) (at pages 366–382). Once again it might be hoped that a future edition of the book would take account of the work of the HCCH on family agreements and reflect more on how such agreements can be facilitated internationally and in the EU in the context of child abduction cases. I commend this innovative book to all those interested in EU private international law and to all who are interested in authentic instruments. Paul R Beaumont, University of Stirling

PREFACE AND ACKNOWLEDGEMENTS I first encountered Authentic Instruments as a consequence of reading I did during the decade in which I taught Private International Law to lawyers who wished to be admitted as Notaries in England and Wales. My initial researches into authentic instruments revealed the paradox that – though they cannot be created and do not exist in the English legal system – they can produce legal effects in that legal system either via provisions of European Private International Law that allow their independent cross-border enforcement, or as foreign evidence. Though Brexit has irredeemably changed the nature of the relationship of the UK’s legal systems with the body of EU Private International Law, it is not so simple to undo the engagement of the UK’s legal systems and citizens from the EU or its Authentic Instruments: the UK Government wishes to continue aspects of the preBrexit alignment between the UK and the EU as it concerns civil and commercial matters – its stated wish is to join the 2007 Lugano Convention (which contains Authentic Instrument provisions) as a Third State; further, many UK citizens are party to Authentic Instruments as a consequence of foreign loans and foreign property purchases. It is hence still useful to know what an Authentic Instrument is, and even more useful to know what it is not. The last statement reflects the difficulties of properly understanding a legal institution that is foreign to one’s own legal system. The temptation is to attempt to equate the strange foreign thing with some different, but more familiar, domestic thing. The danger is that this comparison may elide essential aspects of the foreign thing and appear to suggest, wrongly, that it shares other inappropriate qualities with the familiar domestic concept of a foreign judgment. Throughout this book the point is made that foreign Authentic Instruments should not be equated in a general sense with foreign judgments. This advice is directed not only to those who would explain the authentic instrument to a common lawyer but also to the drafters and re-casters of European Private International law and to all courts faced with a foreign Authentic Instrument. Though this has not been an easy book to write, I have been variously assisted in my task by the kindnesses of various colleagues some of whom are now mentioned, subject to the usual disclaimer that the mistakes below are mine. I am particularly grateful to Paul Beaumont for good-naturedly encouraging my research and publications concerning authentic instruments; to Florian Becker for help with some German sources; to Anatol Dutta for securing other German

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Preface and Acknowledgements

sources; to Emmanuel Guinchard for help with securing certain French sources; and, to Lara Walker for providing a most useful scan. I am also most grateful to those at Hart Publishing who have helped to make this book a reality. The help and encouragement of those named above must however pale by comparison with the more general support provided by my wife Kathrin Kühnel-Fitchen during this project, and so it is to her that I dedicate this book.

CONTENTS Series Editor’s Preface����������������������������������������������������������������������������������������������������v Preface and Acknowledgements��������������������������������������������������������������������������������� vii Introduction���������������������������������������������������������������������������������������������������������������������1 I. Matters Included�����������������������������������������������������������������������������������������2 II. Matters Excluded�����������������������������������������������������������������������������������������4 III. Consequences of a Lack of an EU Competence to Harmonise the Authentic Instrument or Notarial Practice at the Domestic Level��������������������������������������������������������������������������������������������5 IV. The European Rather than Global Focus of this Book���������������������������8 V. The French and German Legal Systems as Representative Exemplars of the Domestic Functions and Possibilities of Notarial Authentic Instruments����������������������������������������������������������12 VI. Brexit�����������������������������������������������������������������������������������������������������������14 VII. Order of Treatment�����������������������������������������������������������������������������������15 PART I DOMESTIC LAWS 1. The Authentic Instrument as a Legal Institution of the Civil Law������������������19 I. The Authentic Instrument in Abstract���������������������������������������������������20 II. Notaries of the Civil Law and their Notarial Authentic Instruments Considered in Abstract������������������������������������������������������26 III. An Outline of the Steps Usually Taken by a Notary to Draw-Up an Authentic Instrument����������������������������������������������������27 IV. An Evidentiary Point: What is and is not Proven by the Authentic Instrument?�����������������������������������������������������������������������������28 V. Notarial Evidential Determinations in an Authentic Instrument May Allow Immediate Enforcement������������������������������������������������������30 2. The Authentic Instrument in the Domestic Laws of France and Germany����������������������������������������������������������������������������������������������������������33 I. Early Origins of Notaries and their Notarial Instruments�������������������34 A. The Notary and Notarial Instruments in the Legal Codifications of the Modern Period����������������������������������������������42

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Contents II. The Development of Domestic Notarial Authentic Instruments��������43 A. The Development of Authentic Instruments in the French Legal System��������������������������������������������������������������������������������������43 i. Enforcing a Notarial Authentic Instrument in France��������50 ii. Challenging an Authentic Instrument in the French Legal System�����������������������������������������������������������������������������52 iii. Challenging the Formal Validity/Instrumentum of an Authentic Instrument in French Law��������������������������54 iv. Challenging the Material Validity of the Underlying Agreement/Declaration Contained in the Authentic Instrument (the Negotium) before a Domestic Court���������57 v. Challenging the Actual Enforcement of the French Notarial Authentic Instrument before the French Domestic Enforcement Court������������������������������������������������59 B. The Development of Authentic Instruments in the German Legal System�����������������������������������������������������������64 i. When is it Necessary to Consult a German Notary?�����������70 ii. When May a Notary be Consulted?���������������������������������������72 iii. What are the Legal Provisions that Concern German Notarial Authentic Instruments?�������������������������������������������73 iv. Challenging an Authentic Instrument in the German Legal System���������������������������������������������������78 v. Challenging the Instrumentum of an Authentic Instrument in the German Legal System������������������������������79 vi. Challenging the Material Validity of the Underlying Agreement/Declaration Contained in the Authentic Instrument (the Negotium) before a Domestic Court���������81 C. Conclusion�����������������������������������������������������������������������������������������82

3. The Cross-Border Legal Effect of Authentic Instruments��������������������������������84 I. Introduction�����������������������������������������������������������������������������������������������84 II. An Authentic Instrument Employed Outwith the State of its Creation��������������������������������������������������������������������������������������������85 III. Distinguishing between Contentious Judgments and Non-Contentious Notarial Authentic Instruments������������������������������87 IV. A Preliminary Aside Concerning Judgments: Can the Contents of the Authentic Instrument be Converted to a Judgment in the Place of Drawing-Up and then be Exported as a Judgment?��������������92 V. Producing Private International Law Effects via Foreign Notarial Authentic Instruments: Legalisation���������������������������������������92 VI. Regulation 2016/1191 Promoting the Free Movement of Citizens by Simplifying the Requirements for Presenting Certain Public Documents in the European Union and Amending Regulation (EU) No 1024/2012�������������������������������������������95

Contents  xi VII. Producing Private International Law Effects via Foreign Notarial Authentic Instruments: Legalisation������������������������������������������������������96 VIII. The Circulation of the Legal Effects of Notarial Authentic Instruments via Domestic Civil Procedure Law�����������������������������������97 IX. The ‘Reception’ of Foreign Authentic Instruments ‘As Such’ by the French and German Legal Systems���������������������������������������������99 X. Allowing Domestic Effect Concerning the Probative Force of a Foreign Authentic Instrument�������������������������������������������������������100 XI. Allowing Domestic Effect Concerning the Executory Force of a Foreign Authentic Instrument�������������������������������������������������������104 XII. The Circulation of the Legal Effects of Notarial Authentic Instruments via Bilateral Conventions between Founding Member States of the EEC���������������������������������������������������������������������106 XIII. Conclusion�����������������������������������������������������������������������������������������������113 PART II EUROPEAN PRIVATE INTERNATIONAL LAW REGULATIONS 4. Authentic Instruments in the Brussels I Family����������������������������������������������117 I. Introduction���������������������������������������������������������������������������������������������117 A. Definitional Issues��������������������������������������������������������������������������121 B. The Authentic Instrument in European Private International Law: Definitional Defects and the Unibank Decision���������������������������������������������������������������������������124 C. The Unibank Case���������������������������������������������������������������������������127 II. The Legal Requirements for a Cross-Border Notarial Authentic Instrument that is to Circulate via a Member of the Brussels I Family of Conventions and Regulations����������������������������������������������132 A. Introduction������������������������������������������������������������������������������������132 B. Authentic Instruments and the Brussels I Regulation���������������134 III. Brussels I Family Eligibility Criteria Required for an Authentic Instrument to be Capable of Cross-Border Circulation in the EU or EFTA States�����������������������������������������������������������������������136 A. That the Authentic Instrument is within the Material Scope of the Regulation or Convention and is Essentially Consonant with the Presumably Autonomous Regulation or Convention Concept of an Enforceable Authentic Instrument���������������������137 B. That the Authentic Instrument Falls within the Temporal Scope of the Regulation or Convention���������������������������������������139 i. Brussels Convention��������������������������������������������������������������139 ii. Lugano Convention 1988������������������������������������������������������140 iii. Brussels I Regulation�������������������������������������������������������������140 iv. Lugano Convention 2007������������������������������������������������������141 v. Brussels Ia Regulation������������������������������������������������������������142

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Contents C. That the Authentic Instrument was Drawn-Up or Registered in the Member State or Convention State of Origin via the Intervention of a Public Authority of that State which thereby has Established its Authenticity in the State of Origin Concerning its Content���������������������������������������142 D. That the Authentic Instrument Satisfies the Requirements for its Domestic Enforceability in the State of Origin����������������144 E. That the Enforcement of the Authentic Instrument would not be (Manifestly) Contrary to the Public Policy of the Member State or Convention State Addressed���������������������������147 i. Domestic Formal Validity Challenge and Different Enforcement Procedures�������������������������������������������������������148 a. What may be Argued and Considered?�����������������������148 b. Enforcement Procedure via the Brussels I and Lugano Regimes in the Enforcement State�����������������151 c. Brussels Convention and Lugano Convention 1988 Enforcement Procedures��������������������������������������152 d. Brussels I Regulation and Lugano Convention 2007 Enforcement Procedures��������������������������������������154 e. Brussels Ia Regulation Enforcement Procedures��������155 ii. The Public Policy Exception for Enforceable Authentic Instruments via Brussels I�����������������������������������������������������157 F. Case Law on the Authentic Instrument Public Policy Exception�����������������������������������������������������������������������������������������162 i. Hypothetical Cases Justifying the Application of the Public Policy Exception for Authentic Instruments����������168 a. Geimer’s Categories��������������������������������������������������������169 b. First Category: Public Policy is Infringed by Bringing the Enforcement Request������������������������������169 c. First Category Cases may also Include Non-Liquidated Claims�������������������������������������������������174 d. First Category Cases: Conclusion���������������������������������175 e. Second Category: Attempts to Use an Authentic Instrument to Evade a Law��������������������������������������������176

5. European Enforcement Order Regulation��������������������������������������������������������179 I. Introduction���������������������������������������������������������������������������������������������179 A. Origins����������������������������������������������������������������������������������������������180 B. The Significance of the EEO Regulation for Notaries����������������186 C. General Issues Concerning the Judgment Debtor’s Rights of Defence and ‘Minimum Standards’ in the Member State of Origin in the EEO Regulation��������������������������������������������������190 D. The RAND Report 2012�����������������������������������������������������������������192

Contents  xiii II. The Legal Requirements for the Circulation of an Authentic Instrument via the EEO Regulation�����������������������������������������������������195 A. Introduction������������������������������������������������������������������������������������195 B. The EEO Regulation�����������������������������������������������������������������������199 i. Subject Matter and Minimum Standards����������������������������199 a. Excursus: The Deletion of the Commission’s Proposed Debtor Warning Requirement���������������������200 ii. Scope����������������������������������������������������������������������������������������201 iii. Temporal Application������������������������������������������������������������202 iv. A Definitions Section������������������������������������������������������������202 v. Defining a ‘Claim’�������������������������������������������������������������������202 vi. Defining ‘An Authentic Instrument’������������������������������������205 vii. Not Defining an ‘Uncontested’ Enforcement Title������������208 a. Excursus: The Effect on the Enforcement Title of the Debtor Disputing the Debt in the Member State of Origin and Article 11 EEO������������������������������210 viii. ‘Challenging’ the EEO Certificate via Article 10����������������212 ix. After a Challenge to an ‘Uncontested’ Enforcement Title������������������������������������������������������������������������������������������213 x. Conflicting Authentic Instruments�������������������������������������216 III. What Role for the Enforcement Authorities and Courts in the Enforcement Venue?��������������������������������������������������������������������217 A. Article 23, Can the Debtor Apply to Limit or Stay Enforcement in the Enforcement Venue?������������������������������������221 i. Using Article 23 to Halt or Restrict Enforcement in the Enforcement Venue����������������������������������������������������223 ii. Article 23 Procedure��������������������������������������������������������������226 iii. The Interaction of Article 11 with Article 23���������������������227 iv. Article 23 and Authentic Instruments���������������������������������229 v. The Article 21(2) Prohibition on a Révision au Fond and its Scope in the Enforcement Venue����������������������������234 IV. Procedural Disadvantage of the Debtor and Issues Related to the Regulation’s Lack of Public Policy Control�������������������������������242 A. The Systemic Procedural Disadvantage of the Authentic Instrument Debtor by the Regulation������������������������������������������242 B. No Control of Public Policy via an Express Exception Included in the EEO Regulation���������������������������������������������������245 C. Public Policy Arguments in the Member State of Origin?��������247 D. Can there be any Control of Public Policy Concerning Human Rights Compliance in the Enforcement Venue under a Regulation Lacking an Exequatur Stage and Lacking a Public Policy Exception?����������������������������������������������248

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Contents E. Reactions to the Suggestion of Latent Public Policy Control in the Enforcement Venue by National Courts���������������������������254 F. Can the Enforcement of an Authentic Instrument Trigger a Human Rights/Public Policy Outrage?�������������������������������������256 V. Conclusion�����������������������������������������������������������������������������������������������256

6. The Maintenance Regulation������������������������������������������������������������������������������258 I. Introduction���������������������������������������������������������������������������������������������258 II. Differences in National Perspectives on What is Meant by ‘Maintenance’��������������������������������������������������������������������������������������264 III. Drafting the EC’s Maintenance Regulation�����������������������������������������265 IV. The Maintenance Regulation and Authentic Instruments�����������������269 V. The Maintenance Regulation and Notarial Authentic Instruments, Similarities and Differences with the Regulations Considered so Far���������������������������������������������������������������������������������������������������������271 VI. Authentic Instruments in the Drafting of the EC Maintenance Regulation������������������������������������������������������������������������������������������������273 VII. Reaching the Final Text of the Regulation Concerning Authentic Instruments����������������������������������������������������������������������������������������������276 VIII. Article 48 Court Settlements and Authentic Instruments�����������������278 IX. What does Article 48(1) and the Maintenance Regulation Mean by the ‘Recognition’ of Authentic Instruments?�����������������������279 X. Article 48(2), What is Meant by ‘As Necessary’?���������������������������������286 XI. Operation of the Regulation: General Requirements�������������������������289 A. Article 1 Scope��������������������������������������������������������������������������������289 B. Article 76 Temporal Application and Article 75 Transitional Provisions������������������������������������������������������������������293 C. Articles 68 and 75, Temporal Issues and the Relationship between the Maintenance Regulation and Earlier EC Provisions����������������������������������������������������������������������������������294 D. Article 2(1) Definitions������������������������������������������������������������������295 E. Application of Chapter IV Recognition and Enforcement Provisions to Authentic Instruments�������������������������������������������297 F. Recognition and Enforcement via Section 1 of Chapter IV�����������������������������������������������������������������������������������300 G. Recognition and Enforcement via Section 2 of Chapter IV�����������������������������������������������������������������������������������305 H. Common Provisions�����������������������������������������������������������������������310 XII. Application of the Maintenance Regulation in the Context of Authentic Instruments�����������������������������������������������������������������������313 A. Prenuptial Agreements Relating to Spousal Maintenance Obligations and the English Court�����������������������������������������������314

Contents  xv B. Prenuptial Agreements in Notarial Authentic Instruments, the Maintenance Regulation and the English Courts����������������316 i. Choice of Court Clauses, the English Court and Article 4 of the Regulation����������������������������������������������������316 C. Assuming the English Court has the Jurisdiction to Proceed on Maintenance Matters under the Regulation; Other Provisions in the Prenuptial Agreement and Enforcement Issues�������������������������������������������������������������������������������������������������320 i. Applicable Law�����������������������������������������������������������������������320 ii. Additional Provisions in the Nuptial Agreement��������������320 XIII. Conclusion�����������������������������������������������������������������������������������������������326 7. The Brussels IIa Regulation��������������������������������������������������������������������������������328 I. Introduction���������������������������������������������������������������������������������������������328 A. Towards Intra-European Legislative Measures in ‘Family Matters’��������������������������������������������������������������������������329 B. The Road to the 1998 Brussels II Convention�����������������������������333 C. From the Convention to the Brussels II Regulation and Thereafter to Brussels IIa Regulation������������������������������������336 D. Further Progress on Family Law Issues in European Private International Law��������������������������������������������������������������337 II. The Limited but Developing Role of Authentic Instruments and Approved Settlements in the Brussels II Convention and Subsequent Brussels II Regulations������������������������������������������������������338 A. The Legislation��������������������������������������������������������������������������������344 III. The Brussels IIa Regulation��������������������������������������������������������������������346 A. Authentic Instruments in the Brussels IIa Regulation���������������348 B. The Text of Article 46 Brussels IIa Regulation����������������������������349 C. Definition�����������������������������������������������������������������������������������������349 D. Scope������������������������������������������������������������������������������������������������351 E. The Quality of Domestic Enforceability��������������������������������������352 i. What is Meant by Enforceable in Article 46 of the Brussels IIa Regulation?��������������������������������������������������������353 ii. Can an Authentic Instrument with Content Capable of Domestic Recognition but not Domestic Enforcement Still be Regarded as Enforceable for the Purposes of Article 46?�������������������������������������������������������������������������������355 iii. The Approach of the Recast Regulation – Not Necessarily ‘Enforceable’ but Possessing ‘Binding Legal Effects’���������������������������������������������������������������������������358 F. Recognition in General Terms������������������������������������������������������359

xvi 

Contents G. Enforcement in General Terms�����������������������������������������������������360 H. Proceeding to Cross-Border Recognition and/or Enforcement in the Context of Authentic Instruments via the Brussels IIa Regulation������������������������������������������������������361 IV. Proceeding to Cross-Border Recognition and/or Enforcement in the Context of Authentic Instruments via the Recast Regulation������������������������������������������������������������������������������������������������366 A. The Recast Regulation – Continuity and Discontinuity������������366 B. Reaching the New Recognition and Enforcement Provisions of the Recast Regulation����������������������������������������������������������������368 C. The Final Recast Regulation Provisions on Authentic Instruments and Agreements��������������������������������������������������������372 D. Scope and Included Authentic Instruments for the Recast Regulation����������������������������������������������������������������������������������������372 E. Certificates���������������������������������������������������������������������������������������374 F. Refusing Recognition or Enforcement of a Foreign Authentic Instrument or Agreement�������������������������������������������378 G. The Effect of the Best Interests of the Child on Recognition and Enforcement�����������������������������������������������������������������������������381 H. Procedures���������������������������������������������������������������������������������������383 V. Conclusion�����������������������������������������������������������������������������������������������383

8. Succession Regulation, Matrimonial Property Regulation, and Registered Partnership Property Regulation��������������������������������������������385 I. Introduction���������������������������������������������������������������������������������������������385 II. Authentic Instruments in the Succession Regulation������������������������389 A. An Overview of the Drafting Process������������������������������������������389 B. Investigating the Meaning of the Draft Text�������������������������������399 C. The Succession Regulation������������������������������������������������������������401 D. Provisions of the Succession Regulation Relevant to Authentic Instruments�������������������������������������������������������������������402 i. Distinguishing an Article 3(1)(i) Authentic Instrument from an Article 3(1)(g) Decision; the Role of Article 3(2)����������������������������������������������������������403 ii. Authenticity of the Authentic Instrument and the Nature of this Autonomous Concept����������������������������������407 E. Cross-Border Acceptance of Authentic Instruments under the Succession Regulation: Article 59�������������������������������410 i. The Meaning and Nature of Acceptance�����������������������������413 F. How is Article 59 Intended to be Applied?���������������������������������417 G. Article 59, the Annex 2 Form and Language Problems�������������420 i. The Annex 2 Form and the Scope and Nature of the Evidentiary Effects�����������������������������������������������������������������421

Contents  xvii H. Some Practical Problems with the Suspensive Effect of Member State of Origin�������������������������������������������������������������425 I. Article 59 Adaptation to Ensure Effectiveness����������������������������426 J. Article 59 Public Policy Exception�����������������������������������������������427 K. Cross-Border Enforceability of Authentic Instruments under the Succession Regulation: Article 60�������������������������������430 i. Article 60 and Cross-Border Enforcement�������������������������431 L. Incompatibility Arising After Article 59 or Article 60 Procedures have Concluded: Recital 66���������������������������������������437 i. Two Incompatible Authentic Instruments��������������������������437 ii. Incompatibility between an Authentic Instrument and a Decision������������������������������������������������������������������������438 III. Matrimonial Property and Registered Property Regulations������������439 A. Introduction������������������������������������������������������������������������������������439 B. Scope������������������������������������������������������������������������������������������������441 i. Temporal Scope����������������������������������������������������������������������441 ii. Subject Matter Scope�������������������������������������������������������������442 C. Definitions���������������������������������������������������������������������������������������443 D. Acceptance���������������������������������������������������������������������������������������446 E. Enforcement������������������������������������������������������������������������������������451 F. Incompatibility between Authentic Instruments or between an Authentic Instrument and a Decision���������������������455 Index��������������������������������������������������������������������������������������������������������������������������457

xviii

Introduction An authentic instrument is a public document that allows the public official who registers or draws it up to record evidence concerning matters of fact concerning a juridical act that persons may (or must) have formally recorded in such a fashion as to raise a very strong evidential presumption that the factual matters so registered or recorded are, to the extent allowed by the legal system in which the authentic instrument is created, henceforward to be presumed accurate and ‘proven’. The facts that are permitted to benefit from this presumption, which for notarial authentic instruments are those that the notary can perceive and has then drawn-up the authentic instrument to verify that he has perceived them, need not be proven again within that legal system but may, subject to judicial challenge possibilities, simply be cited as proven facts. Considered in terms of its domestic usage, an authentic instrument may be understood to function in a manner somewhat analogous to recording matters in a particular register with near conclusive evidential effect on certain facts, ie that a loan was made on a given day to a given company by a given lender for a given sum. What differentiates such a registration in a given register from the drawing-up of an authentic instrument by a notary is that an authentic instrument is a general document that may, within the bounds permitted by the place in which it is drawn-up, be adapted to any matter: one cannot record a will or an agreement for the payment of maintenance in the charges register of Companies House. In the legal systems that employ authentic instruments domestically one may, however, in consultation with a notary or another empowered public official, use an authentic instrument for any purpose permitted by the legal system in which the document is to be drawn-up by the notary and then deposited and retained by him or his successors.1 Though the domestic utility of authentic instruments in the legal systems that employ them is clear, matters become more complicated when an authentic instrument is produced in a foreign legal system by a person who asserts that the proven facts it contains should also be regarded as proven facts in that legal system and hence should lead to the same legal conclusions and effects. The legal system in receipt, which may not feature authentic instruments as a domestic legal institution, must decide whether to permit the requested extension of the domestic legal effects of the applicant’s foreign authentic instrument. There are various means by which the domestic legal effects of an authentic instrument may be allowed cross-border effect, eg via a modified version of the 1 Throughout the book the masculine pronoun will be used to refer to the notary whose actions or acts are under discussion, this convention is adopted for ease of reference and brevity only and is not intended to exclude any other notary.

2

Introduction

foreign judgment enforcement provisions or via a bilateral convention; the most extensive and ambitious means of permitting an authentic instrument to produce cross-border legal effects are however presently found in the private international law Regulations and Conventions of the EU which, whether wisely or not, have sought increasingly to maximise the possibility for authentic instruments, and various legal effects associated therewith, to ‘circulate’ within the legal systems of all European Union (EU) Member States (and to a lesser extent within the European Economic Area (EEA) States). Authentic instruments often feature in the private international law Regulations and Conventions of the EU to permit the authentic instruments associated with the given Regulation or Convention to produce a variety of cross-border legal effects across all of the legal systems party to the given Regulation or Convention without any regard to whether the legal system in receipt of the foreign authentic instrument features authentic instruments, or that type of authentic instrument, as a domestic legal institution. It is only in these EU Regulations and EEA Conventions that the legal effects associated with authentic instruments can cross the usually impermeable barrier between civil law legal systems with a pronounced Roman law legacy and those other civil law or common law legal systems that lack this Roman law commonality and hence also lack the domestic legal institution of the notarial authentic instrument: it is in this sense that the EU’s private international law Regulations and associated EEA Conventions concerning the cross-border legal effects of notarial authentic instruments are presently the most radical provisions concerning the cross-border legal effects of authentic instruments.

I.  Matters Included This book concerns the private international law Regulations and Conventions of the European Union that allow authentic instruments to produce cross-border legal effects in the legal systems of all other States bound by the Regulation or Convention in question. This book is intended to fill a gap in the English language literature of the private international law of EU Regulations and Conventions concerning authentic instruments. The gap is due to two facts: first, that authentic instruments are absent from common law legal systems, eg in the UK there are no domestic authentic instruments in the English or Northern Irish legal systems and though the Scottish legal system knows of a domestic authentic instrument it exists in a narrow and atypical form; second, as authentic instruments are creatures of non-contentious legal practice they rarely feature in the case law or jurisdiction2 driven discussions that inform the modern subject of

2 As will be seen, notarial authentic instruments are not subject to the regulation of jurisdiction that is applied to contentious legal matters resolved before courts or concerning court judgments capable of cross-border enforcement.

Matters Included   3 private international law and tend instead to remain as unfamiliar relatives of the recognition and enforcement of judgments at the unfashionable, and usually unreported, end of the subject. The authentic instruments considered in this book are overwhelmingly those drawn-up by notaries. Though it is often possible for other public officials to also draw-up certain authentic instruments, it is the notary who exercises the most general competence and expertise in this matter and hence it is the notary who is most likely to draw-up an authentic instrument that is later accorded crossborder legal effect by an EU private international law Regulation or Convention in another legal system also bound by that Regulation or Convention. Though most legal systems feature notaries, it is only the notaries of those legal systems that feature authentic instruments as a domestic legal institution who have additionally been authorised to draw-up authentic instruments within the territory of that legal system who may draw-up an authentic instrument capable of deriving a cross-border legal effect from an EU Regulation or Convention. It follows that as there are no authentic instruments at all in the laws of England and Wales or Northern Ireland the notaries particular to each of these legal systems are incapable of drawing-up authentic instruments in any circumstance when so practising. The Scottish legal system does feature a form of authentic instrument (arising from registration of enforceable obligations with the appropriate court) but does not specially authorise its notaries to draw-up or create this authentic instrument when acting in a notarial capacity; hence the Scottish notary is also irrelevant to the subject matter of this book which, from the perspectives of the UK’s legal systems, only concerns foreign authentic instruments drawn-up outside the UK by notaries also admitted and located outside the UK.3 The private international law of the authentic instruments considered in this book arises because within the EU or EEA such incoming foreign authentic instruments may produce, or be argued to produce, cross-border legal effects within the legal systems of every other EU or EEA State party to the relevant Regulation or Convention without regard to the ability of the State in receipt to itself generate such an authentic instrument. The range of such potential cross-border legal effects has expanded most notably by the EU’s development of a suite of private international law Regulations for its Member States. This expansion has been considerable, the original potential to enforce an authentic instrument concerning a civil and commercial matter across Member State borders via the Brussels Convention of 1968 has since 2000 been supplemented by additional Regulations pertaining to matters including matrimony, maintenance, succession, agreements on matrimonial property, and property agreements concerning registered partnerships. This non-exhaustive catalogue must be supplemented with developments arising from successive revisions to the treatment of civil and commercial claims

3 The legal systems of Ireland, Denmark, Cyprus, Sweden and Finland all lack the authentic ­instrument as a domestic legal institution.

4

Introduction

within the EU, including those claims deemed to be uncontested, and forms the basis of the discussion in the parts of this book that concern the private international law of authentic instruments derived from EU Regulations and EEA Conventions.

II.  Matters Excluded The treatment of the EU’s development of Regulations relevant to authentic instruments could have been extended further to include a Regulation from 2014 concerning the European Account Preservation Order (EAPO)4 and arguably a Regulation from 20165 concerning the wider uses of public documents within the  EU: these Regulations are however omitted for reasons of space and other factors now sketched. The EAPO Regulation allows the creditor of an actual or putative judgment, settlement or a qualifying authentic instrument who is domiciled in a participating Member State to employ it to secure and preserve the contents of a qualifying bank account ex parte the debtor to allow other legal proceedings to proceed with a greater eventual prospect of successful enforcement for the authentic instrument (or other enforcement title); this Regulation is related to earlier Regulations, which did not feature authentic instruments, the European Order for Payment6 and the Small Claims Procedure,7 it seeks to improve diverse domestic procedures by providing in their place a streamlined European procedure. The EAPO Regulation was not omitted because the UK did not opt-in, nor merely because of the fact that while this book was being written there was no case law,8 but mostly because its restricted 4 Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters OJ L 189, 27.6.2014, pp 59–92. See G Cuniberti and S Migliorini, The European Account Preservation Order Regulation: A Commentary 1st edn (Cambridge, Cambridge University Press, 2018). 5 Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 OJ L 200, 26.7.2016, pp 1–136. 6 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure OJ L 399, 30.12.2006, pp 1–32 (as amended). 7 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure OJ L 199, 31.7.2007, pp 1–22 (now amended by Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure (OJ L 341, 24.12.2015, pp 1–13)). 8 The first case decided by the CJEU on the EAPO Regulation C-555/18 K.H.K. v B.A.C. and E.E.K. ECLI:EU:C:2019:937 was published on 19 November 2019, it saw the court follow the earlier advice of AG Szpunar C-555/18 K.H.K. v B.A.C. and E.E.K. ECLI:EU:C:2019:652 and insist, inter alia, that only an authentic instrument that was domestically enforceable from the point that the EAPO was issued could qualify under the Art 4(10) definition of ‘authentic instrument’ for the purposes of that Regulation.

Consequences of a Lack of an EU Competence  5 operation only produces a procedural effect of an interim nature that seems to be of uncertain utility to the typical authentic instrument creditor; these factors in combination seemed to justify the decision not to include the EAPO Regulation. Regulation 2016/1191 presented a different difficulty altogether; it represents an attempt to provide uniform and equivalent procedures for the cross-border transmission and acceptance of a wide class of public documents including certain authentic instruments that are not already provided with cross-border possibilities by other EU private international law Regulations such as those discussed in this book. Despite excluding most of that discussed in this book, the remaining class of included public documents is still very wide and includes many official documents, eg birth certificates, marriage certificates, death certificates (etc), issued by an authority in one Member State, which may be demanded by the authorities of another Member State. Regulation 2016/1191 attempts to remove or minimise the possibility that an EU citizen may be affected adversely by the Member State in receipt refusing to accept that such an official document from another Member State is sufficiently equivalent with its domestic notions of such a document as to prevent it from having an equivalent legal effect within the receiving Member State. In the context of this book the difficulty with this important Regulation is that its width of application seems to require a standalone legal commentary directed to matters other than those addressed in this book: the decision to exclude this Regulation proceeded accordingly as such an analysis of these issues of private international law was impractical within a book which sets out to address the private international law of the authentic instruments involved in the EU Regulations that are excluded from the scope of the 2016 Regulation.

III.  Consequences of a Lack of an EU Competence to Harmonise the Authentic Instrument or Notarial Practice at the Domestic Level Though the intra-EU potential for an authentic instrument from one Member State to produce legal effects in another Member State requires that the authentic instrument in question complies with the scope and other technical requirements of the relevant EU Regulation – which may include compliance with an outline EU definition of authentic instrument – it is noteworthy that the EU has neither accepted the admittedly dubious invitation of the European Parliament to introduce a European authentic instrument9 nor sought to harmonise further the 9 European Parliament resolution of 18 December 2008 with recommendations to the Commission on the European Authentic Act (2008/2124(INI)) (2010/C 45 E/11). Amongst the matters that made this invitation dubious was the fact that what was proposed would have involved pan-European effects reserved to the notaries of only certain EU Member States.

6

Introduction

authentic instruments that may originate from a Member State. Less surprisingly the EU has also not attempted to harmonise domestic notarial activity in relation to the drawing-up of authentic instruments. Both notarial activity and domestic authentic instruments concern areas that remain jealously guarded Member State competencies.10 The legal system(s) of each Member State continue to determine the domestic legal requirements concerning its authentic instruments as well as determining their procedural and evidential attributes as well as determining the domestic role of its domestic notarial profession(s) and their involvement with the drawing-up of such authentic instruments. It must therefore be understood that though the EU Regulations examined in this book seek to provide an outline definition of a competent authentic instrument, it is each Member State legal system that defines its authentic instruments. Thus the domestic authentic instruments that interact with an EU Regulation may exhibit some degree of relative domestic heterogeneity. It follows from the retained competencies of the Member States that if a Member State legal system, wishing to relieve domestic pressure on its courts, opts to transfer tasks from its courts to its notaries it is free to do so. To the extent that performing these new domestic tasks involves the notary in the drawing-up of a notarial document that may be regarded in domestic terms as an authentic instrument it also follows that the Member State, by expanding the apparent range of its domestic notarial authentic instruments, will, assuming the notarial document in question appears to comply with the minimum requirements of a suitable EU Regulation, also expand the apparent cross-border possibilities of that notarial document via the given EU Regulation: should this occur, the legal systems of other EU Member States can be faced with an incoming enforcement title based on the notarial document, potentially with automatic enforceability, that the apparent debtor can only arrest by commencing legal proceedings to judicially challenge as per the Regulation. Little imagination is required to appreciate that such seeming

10 The extent of the ‘jealousy’ is apparent from the many cases heard by the CJEU in response to obduracy from numerous Member States who sought, unsuccessfully, to resist infringement proceedings instituted by the European Commission to establish the hardly radical proposition that the office of notary should not be associated with a nationality requirement particular to that Member State, see cases delivered by the Grand Chamber on 24 May 2011: C-47/08 Commission v Belgium ECLI:EU:C:2011:334, C-50/08 Commission v France ECLI:EU:C:2011:335, C-51/08 Commission v  Luxembourg ECLI:EU:C:2011:336, C-53/08 Commission v Austria ECLI:EU:C:2011:338, C-54/08 Commission v Germany ECLI:EU:C:2011:339, and C-61/08 Commission v Greece ECLI:EU:C:2011:340. Subsequently these victories may have been rendered somewhat Pyric by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System OJ L 354, 28.12.2013, pp 132–170. After considerable lobbying the Directive provides at Recital 3 that notaries ‘appointed by an official act of government’ are excluded from ‘the scope of Directive 2005/36/EC’. There have been further infringement proceedings brought by the Commission which again the Commission won, see C-392/15 Commission v Hungary (supported by the Czech Republic) ECLI:EU:C:2017:73.

Consequences of a Lack of an EU Competence  7 authentic instrument debtors may be seriously disadvantaged by the unintended consequences of a unilateral decision by a Member State to vary the domestic role of its notaries. It may be for these reasons that the French legal authorities were so keen to stress that recent French reforms to the formerly judicial procedure by which a divorce by mutual consent might be effected were not intended, despite dispensing with judicial involvement in most situations and requiring the French notary to verify that earlier legal procedures involving other lawyers have been complied with and to record a ‘notarial minute’ of the agreement, to be understood to lead to the production of a domestic French authentic instrument.11 The Court of Justice (CJEU) has recently been faced with a variety of preliminary references arising from domestic re-deployments of domestic tasks from courts to notaries by various Member States.12 In the context of civil and commercial claims the Pula Parking and Zulfikarpašić cases saw the CJEU differentiating between judge-issued judgments, that clearly could circulate across borders via the Brussels Ia Regulation (Pula Parking) or via the EEO Regulation (Zulfikarpašić), and mere notarial documents associated with the newly conferred domestic notarial activities: in each case the CJEU resisted the suggestion that the notaries were generating judgments (or authentic instruments) capable of circulation via existing EU private international law provisions. The CJEU thereby prevented these domestic expansions of the notarial role from ‘accidentally’ converting domestic notaries into domestic equivalents of judges issuing judgments capable of cross-border circulation via provisions of European private international law and, though authentic instrument issues were less prominent in these cases, also discouraged any comparable ‘accidental’ expansions of the international role of notarial authentic instruments via European private international law merely because domestic notarial documents were at issue. If however a Member State should explicitly allow its notaries a judicial role to issue judgments,13 or should specify that the domestic transfer of competence should lead to the issue of notarial authentic instruments in place of what previously were judgments, there is no obvious means by which the CJEU could construe either development to prevent the newly empowered judges issuing judgments or the newly empowered notaries 11 See the discussion on this point below in fn 57 of ch 7 on Brussels IIa. 12 See C–551/15 Pula Parking [2017] EU:C:2017:193 and C-484/15 Zulfikarpašić [2017] EU:C:2017:199. discussed by Martina Mantovani, ‘Notaries and their Debt-collection Writs under the Brussels Ia Regulation. A Difficult Characterisation’ (2019) 15(2) Journal of Private International Law 393–417. 13 A range of complications has arisen from the idea, particularly strong in Hungary, that a notary may for different purposes be regarded either as a judge/court issuing judgments, or, as a notary drawing-up authentic instruments: to accommodate such not exclusively Hungarian practices the Succession Regulation provides at Art 3(2) a means of differentiation between the two functions and permits the Member States to indicate via Art 79 whether their notaries are able to act domestically as a court or merely assist a court in certain circumstances. Unfortunately, in Case C-658/17 WB the CJEU, in default of any Art 79 notification from Poland, opted to resolve the issue by construing Art 3(2), see discussion on this point in fn 66 of ch 8 on Succession.

8

Introduction

from drawing-up authentic instruments capable of circulating respectively via existing EU private international law: unlike any such judgments the resulting authentic instruments would not be subject to the jurisdictional rules and protections of the given Regulation but would be allowed to benefit from its expedited and restricted cross-border enforcement potential.

IV.  The European Rather than Global Focus of this Book This book is focussed on matters European. It is however undeniable that authentic instruments – notarial and otherwise – are a global legal phenomenon found in most civilian legal systems which have a Roman law-influenced legal heritage. Even confining the class of authentic instruments to the notarial sub-set, the scale of notarial activities – usually but not always involving the drawing-up of domestic notarial authentic instruments – is also global. A sense of this may be appreciated by considering the International Union of Notaries (UNIL). It was formed in 1948 by 19 countries and by 2020 had expanded its country membership to 88 countries (including most EU Member States) and all but four of the G20 countries.14 Given the global scale of notarial authentic instruments, it would be reasonable to assume that a book addressing the private international law of such authentic instruments should have a correspondingly global focus: that the present book does not offer this warrants some explanation. Though ideally a study of the private international law of notarial authentic instruments would have a global rather than a European focus, the realisation of this ideal is presently impractical in terms of resources and, more significantly, for reasons addressed below, is suggested to be unnecessary. The impracticality results from a range of different considerations that militate against an overly ambitious attempt to cover a global matter in what, as far as is known, is the first English language book concerning the private international law of notarial authentic instruments. As the authentic instrument is an alien legal institution to the common law it must be presented as it is rooted in other foreign legal contexts. This involves explaining differences of civil procedure, legal effects, domestic challenge possibilities, plus the role of the domestic notary in the creation of domestic authentic instruments, before considering the willingness and ability of that or any other legal system to receive and respond to incoming foreign notarial authentic instruments. This method of treatment ensures that the reader will not be misled by an explanation of undifferentiated generality that implies (wrongly) that notarial authentic instruments are essentially homogenous across the 22 EU Member States that feature them. If this advantage could only come at the cost 14 See www.uinl.org/mission and for a map showing the global scale of UNIL membership see www.uinl.org/member-notariats.

The European Rather than Global Focus of this Book  9 of attempting to engage with the notarial authentic instrument across the legal systems of 22 EU Member States it would defeat any single author: consequently, the present volume is less ambitious by restricting its exemplars to the French and German legal systems, arguably the two most representative and influential EU Member State legal systems in this context. As for conducting a more global enquiry into the legal systems of the other 66 countries identified by UNIL as its members, the abovementioned objection of impracticality is buttressed by the more basic objection that such an exercise would also be unnecessary given that the private international law Regulations of the EU represent the apogee of any foreseeable prospect of international cooperation concerning cross-border authentic instruments. If one looks outside the EU28 even as far as the EEA States one transitions swiftly from the deepest crossborder interactions concerning authentic instruments in the EU to the shallower possibilities of the Lugano Convention 2007 and thereafter back to bilateral or unilateral arrangements. This exercise reveals that the EU has developed the private international law of notarial authentic instruments within the EU in a manner unprecedented amongst other sovereign States. To study the current developments of the private international law of notarial authentic instruments, one must therefore primarily study European private international law. In comparative terms the private international law of notarial authentic instruments is much less advanced in non-EU States. It is characterised by either residual domestic mechanisms, with a sophistication that varies in accordance with State perspectives on private international law and the nature and extent of the domestic use of notarial authentic instruments in the ‘enforcement’ venue, by bilateral arrangements (often of considerable age) between the sending and receiving States, or by unilateral provisions of private international law: these ‘pre-EU’ approaches are addressed below in the context of the coverage provided on the French and German legal systems in the introductory chapters. To this extent, despite the absence of a more global coverage, the reader is provided with enough information to appreciate the broad outlines concerning the global status quo for notarial authentic instruments (including French and German notarial authentic instruments) falling outside the ambit of the EU’s private international law provisions. It is thus unnecessary to change the European focus of this book to investigate the global condition of the private international law of notarial authentic instruments. There is however an aspect of the global context that the arguments above do not consider. This aspect concerns the basic question of the aptness and desirability of the EU developments considered from a global perspective. Though a critical evaluation of the EU private international law concerning notarial authentic instruments is frequently attempted in the chapters that follow, the decisions concerning the scope of this book mean that wider questions of whether the world, or the private international laws of other non-EU legal systems, should follow the lead of the EU concerning authentic instruments are only addressed in this introduction. In defence of this approach, there is little evidence of any trend

10

Introduction

outside the EU to empower notarial authentic instruments with cross-border legal effects. For example, most concluded Conventions of the Hague Conference on Private International Law (HCCH) do not feature notarial authentic instruments and do not allow possibilities to authentic instruments that are equivalent to those conferred by EU private international law Regulations. The HCCH has addressed with success certain issues tangentially relevant to the cross-border circulation of various documents (including notarial authentic instruments) via the Apostille/Legalisation Convention of 1961.15 Equally, it included authentic instruments amongst the classes of written agreement that may suffice to allow an international claim for maintenance.16 Apart from these tangential interactions, no other HCCH derived provision specific to authentic instruments (still less to notarial authentic instruments) has ever reached a final convention to thereby enhance the cross-border circulation or enforcement of authentic instruments among the relevant contracting parties. If this is compared to the routine incorporation of notarial authentic instruments within existing and new EU Regulations and Conventions, the absence of provisions empowering cross-border authentic instruments, notarial or otherwise, in final HCCH Conventions is striking. This is not however the end of the story; there have been unsuccessful attempts by the European Community and by representatives of the EU’s notarial professions to include enforceable (ie notarial) authentic instruments within the aborted Hague judgments project of the 1990s and within an early draft of the Hague Choice of Court Convention. Before the collapse of the 1990s Judgments project in the early 2000s, enforceable authentic instruments were included in the project via draft Article 35. The preliminary draft of October 1999 provided: Draft Art 35 original version (footnote omitted) ‘Each Contracting State may declare that it will enforce, subject to reciprocity, authentic instruments formally drawn up or registered and enforceable in another Contracting State’.17

Subsequently, the influence of the European Community (and others) led to an alternative expanded draft version of Article 35 which followed more closely existing European provisions while reversing the original opt-in requirement to require instead an opt-out (via draft Article X) if a Contracting State was, or should later

15 Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents: entered into force 24 January 1965 (currently 117 contracting parties). Art 1(c) includes notarial authentic instruments under the heading ‘notarial acts’. This Convention is discussed below in ch 3. 16 Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance see Art 3 (e) which defines a maintenance arrangement to include an agreement in writing on the payment of maintenance contained in an authentic instrument drawn-up by maintenance authorities. 17 https://assets.hcch.net/docs/e172ab52-e2de-4e40-9051-11aee7c7be67.pdf.

The European Rather than Global Focus of this Book  11 become, unwilling to give incoming authentic instruments cross-border enforceability, or wished to restrict this possibility by requiring reciprocity. Draft Art 35 version B (footnotes and square brackets omitted) 1. Authentic instruments formally drawn up or registered and enforceable in a Contracting State shall, upon request, be declared enforceable in another Contracting State. 2. The authentic instrument must have been authenticated by a public authority or a delegate of a public authority and the authentication must relate to both the signature and the content of the document. 3. The provisions concerning recognition and enforcement provided for in this Chapter shall apply as appropriate.18

Though because of draft Article X the second version of draft Article 35 was not technically mandatory, it still proved to be problematic in so far as it extended the terms of the draft convention away from judgments to include a legal institution that though familiar to some delegations was alien and suspect for others.19 In one sense this issue was familiar to the European delegation, it had arisen in the context of the discussions concerning the European Economic Community (EEC)’s 1988 Lugano Convention. Then, many of the European Free Trade Association (EFTA) States did not feature enforceable authentic instruments; for the Lugano Convention 1988 the EEC did not however allow any option to the EFTA States who were instead persuaded to accept the European law concerning enforceable authentic instruments. For the 1990s Hague draft text the Europeans were willing to compromise to the extent that a Contracting State would have options. Despite this concession, the general assumption by continental European negotiators that the draft text should emulate the precedent of the Brussels Convention of 196820 by giving cross-border enforceability to enforceable authentic instruments, did not persuade the other legal systems. This attempt by the Europeans, and by European notarial lobby-groups, to expand the cross-border enforcement potential of European authentic instruments into a global context came to nothing when most of the judgments project collapsed in the early 2000s. The few parts that were salvaged to construct the Hague Choice of Court Convention of 2005 did not, despite further lobbying from the main notarial trade-body active in Europe, lead to the inclusion of any provision on authentic instruments in the final text or in the 2005 Convention.21 18 ibid. 19 See Fausto Pocar, Costanza Honorati (eds),The Hague Preliminary Draft Convention on Jurisdiction and Judgments: Proceedings of the Round Table Held at Milan University on 15 November 2003 (Milan, Wolters Kluwer Italia, 2005) 142, and Prel Doc No 14 – Comments on the preliminary draft Convention, adopted by the Special Commission on 30 October 1999, and on the Explanatory Report by Peter Nygh and Fausto Pocar at 120, available from www.hcch.net/en/publications-and-studies/ details4/?pid=3497&dtid=35. 20 ibid. 21 The private lobby group is called The Council of the Notariats of the European Union (CNUE), See the CNUE position paper ‘The Hague Convention on “agreements on selecting a competent court

12

Introduction

As for the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, authentic instruments are absent from its final text.22 When speaking of the global position of private international law it is thus clear that in the context of notarial/enforceable authentic instruments the EU provisions represent the most advanced and developed body of such law. There seems to be no prospect that global private international law will emulate the EU’s private international law provisions. This justifies the European focus of this book.

V.  The French and German Legal Systems as Representative Exemplars of the Domestic Functions and Possibilities of Notarial Authentic Instruments As will be seen, since the late eighteenth century the French legal system has been the most influential of the legal systems now included in the EU concerning notarial authentic instruments. The German legal system will also be seen to still bear certain French influences dating back to Napoleonic occupation but these influences are mediated by what since German unification in 1871 is arguably a more sophisticated set of Federal civil procedure provisions with a somewhat less reverential attitude to the German notarial professions, to their authentic instruments, and to foreign authentic instruments. Though the limited comparative overview undertaken in the chapters that follow is restricted to the French and German legal systems, it is intended to allow the reader to grasp the domestic essentials and differences concerning the notarial authentic instruments drawn-up in each legal system. Such differences must be appreciated because EU law has not harmonised the different national laws and different national concepts of authentic instruments: thus national diversity reigns, subject to the specification of the minimum requirements that will allow a notarial document (or equivalent) to be an authentic instrument in relation to given provisions of EU private international law. In view of the lack of basic harmonisation, the comparative information provided is complemented (in both cases) by an account of the historical development of the legal regulation of notaries and of their authentic instruments. The relevance of the historical development of among professionals”’ of 2004 which attempted to introduce a draft Art 12 bis provision that would have required subsequent cross-border enforcement of an enforceable authentic instrument received in a contracting state designated by a choice of court agreement. This fanciful provision and an alternate version allowing its operation on an opt-in basis are still deemed worthy enough to be available from www.notaries-of-europe.eu/index.php?pageID=2882. 22 www.hcch.net/en/instruments/conventions/full-text/?cid=137.

The French and German Legal Systems  13 notarial authentic instruments and notarial regulation to the private international law considered by this book is due to an unresolved issue which recurs through the subject of study in the EU, viz the effectiveness of the regulation of the crossborder uses of notarial authentic instruments once they have left the legal system in which they were drawn-up. In relation to the Regulations and Conventions that comprise EU private international law, this book suggests that the issue of effective cross-border regulation of notarial authentic instruments remains open to doubt. At present if the notarial authentic instrument has been exported from one EU Member State to another (using EU private international law to achieve this) its use in the foreign legal system is often only regulated in that foreign system in a tangential fashion by the relevant EU private international law provisions and incidentally by the associated procedural possibilities of the enforcement venue. This is a consequence of the fact that, in the absence of EU harmonisation of Member State laws governing notarial activities, the cross-border use of notarial authentic instruments, and related national procedural laws, the direct regulation of the notary and the cross-border uses of the notarial authentic instrument are left to the legal system of the place of drawing-up. Though this venue is clearly appropriate for the regulation of domestic notarial practice and domestic enforcement, it is less clear that it is also equally appropriate to police the cross-border/international use of the authentic instruments presented according to EU private international law provisions outside the Member State of origin where it was drawn-up. If the cross-border regulation of notarial authentic instruments drawn-up in one of the relevant 22 EU Member States can only apply effectively to protect the creditor and debtor up to the point at which the authentic instrument is ‘exported’, this reveals a regulatory gap. After export, the de facto legal regulation of the cross-border use of a notarial authentic instrument depends on the possibilities and procedures laid down by the relevant provisions of EU private international law Regulations (mostly designed for enforcing judgments rather than authentic instruments), on the actual enforcement possibilities found in the Member State of enforcement, and also on the scarcely to be assumed willingness of even a justly aggrieved ‘debtor’ (ie one who has already experienced some form of actionable substantive or procedural injustice concerning the cross-border use of the authentic instrument) to oppose proceedings in the enforcement venue and to commence legal proceedings to seek a remedy in the Member State of origin. As well as noting the obvious that the multiplication of legal actions multiplies the debtor’s costs, it may be that in certain legal systems the debtor’s challenges are attended additional risks of procedural fines and potential entanglement with the public prosecutor if his challenge should either fail or be abandoned. The suggested regulatory gap matters because there appears to be an enduring assumption at the highest levels of the EU, understandably bolstered by representatives of some of the notarial professions, that there is sufficient equivalence between judgments and notarial authentic instruments to justify the routine inclusion of authentic instruments capable of producing cross-border legal effects in

14

Introduction

any private international law Regulation featuring comparable judgments. This dubious assumption has led to an expansion of Regulations that include authentic instruments without proper justification and, arguably, without regard for the position of the debtor. As will be seen the drafting histories of such Regulations often demonstrate an assumed equivalence between judgments and authentic instruments as well as a surprising lack of knowledge and awareness of the uses and diversity of the particular authentic instruments that the draft Regulation will empower across the legal systems of the Member States that feature it. The analysis provided in the chapters below concerning those Regulations explores issues of drafting and suggests that future drafting and recasting exercises should avoid routinely equating authentic instruments with judgments to prevent the confusion of two distinct legal concepts.

VI. Brexit When this book is published, the UK will no longer be an EU Member State. It follows that none of the EU Regulations discussed in Part II will apply within the legal systems of the UK: the quality of reciprocity associated with the Regulations that empower the cross-border legal effects of authentic instruments to be produced in UK legal systems will ensure that these provisions are not to be saved as retained laws but rather will be discarded once the UK’s withdrawal legislation has allowed this possibility to the UK legislator. The UK operation of these EU Regulations and the EEA Convention will therefore come to an end in accordance with the end of the UK’s transitional provisions once the UK/EU transition period provided by the UK/EU Withdrawal Agreement expires on 31 December at 23.00 UK time and 24.00 CET. Leaving on one side the potential route to enforce a foreign authentic instrument in the UK following a registration of that authentic instrument in the Scottish legal system, it is undeniable that Brexit will prevent the direct applicability of the EU Regulations that currently allow notarial authentic instruments to produce cross-border legal effect in the UK’s legal systems. It does not however follow that therefore these EU Regulations lose all relevance for UK citizens, residents and lawyers. An authentic instrument is enforced against a person: just as persons who reside outside the Member States who participate in a given EU Regulation may still be affected by the operation of that Regulation within the participating Member States, so may a person resident in the UK be affected post-Brexit, particularly if the person in question has assets located within the EU27. A UK citizen who has purchased a Spanish holiday home using a Spanish mortgage and who defaults on this mortgage during 2021 will obviously not be immune from suit or enforcement of the relevant authentic instrument in Spain by his Spanish creditor (nor in an appropriate UK legal system if the creditor choses to sue on the juridical act) merely because Brexit has occurred. Regardless of the route to

Order of Treatment  15 enforcement selected by the creditor, an understanding of the private international law of authentic instruments may be more relevant than ever for the UK based debtor and his legal advisors post-Brexit.

VII.  Order of Treatment The first part of this book reveals a part of the issue of the nature of the current gap in cross-border regulation by setting out a limited comparative overview of the different approaches of the French and German legal systems to domestic notarial authentic instruments, challenges relating thereunto, and to their respective procedural accommodation of incoming notarial authentic instruments. Chapter one sets out and explains the legal institution of the authentic instrument from the perspective of the major European civil law legal systems that employ it. Chapter two addresses the historical origins of notaries and their authentic instruments and how each has been incorporated into the ‘modern’ codified French and German legal systems; then considers the typical domestic legal functions, legal effects and domestic challenge procedures of notarial authentic instruments in French and in German Law. Chapter three considers earlier ways and means of giving cross-border legal effects to a notarial authentic instrument other than via overt provisions of EU private international law, ie receiving it as an incoming foreign authentic instrument, receiving it under a bilateral convention, receiving it as a judgment23 or receiving it as ‘mere’ documentary evidence. The chapters in the second part of the book explore the relevant provisions of different EU private international law Regulations. Chapter four considers the civil and commercial authentic instruments that fall within the scope of the Brussels Ia ‘family’ of European Union Regulations and the Lugano Conventions. Chapter five considers those civil and commercial authentic instruments encompassed by the European Enforcement Order Regulation. Chapter six addresses the 2009 Maintenance Regulation. Chapter seven concerns authentic instruments in the context of the Brussels II bis ‘family’ of Regulations and its Conventions. Chapter eight addresses the linked cross-border provisions concerning authentic instruments found in the EU’s Succession Regulation and in its two Regulations respectively concerning matrimonial property agreements and equivalent agreements concerning registered partnerships.

23 ie rejecting direct enforcement of the authentic instrument and instead opting to litigate the issue to receive a judgment on the juridical act contained within the authentic instrument which can then be recognised and enforced as a judgment instead of enforced as an authentic instrument.

16

part i Domestic Laws

18

1 The Authentic Instrument as a Legal Institution of the Civil Law This chapter considers the authentic instrument in abstract as a constituent legal institution of the civil law. This is necessary not only because this book is aimed at a readership which may well be unfamiliar with the authentic instrument as a constituent of a civil law legal system but is also necessary as a prelude to the consideration of the concrete examples of the notarial authentic instrument offered by chapter two. Despite the introduction of a range of EU private international law measures relevant to authentic instruments, the domestic nature and domestic use of authentic instruments is as yet unharmonised by EU law. For historical reasons there are certain domestic continuities concerning authentic instruments in the francophone EU Member States and in other places in which Napoleonic laws were influential.1 Apart from such variable historical continuities, the domestic laws of the Member States concerning authentic instruments remain unharmonised by EU law. EU private international law, relying on the Unibank decision of the European Court of Justice in 1999, specifies only the minimum qualifying characteristics for a domestic authentic instrument to fall within one of the Regulations that comprise EU private international law: it goes no further in terms of harmonisation.2 Accordingly, authentic instruments, and the domestic laws that describe them, may vary quite considerably on points of detail and practice across the legal systems of the 22 EU Member States that employ them. The absence of European harmonisation concerning the domestic law of authentic instruments means that it is necessary to consider something of the domestic laws to properly understand the authentic instrument as a domestic legal institution. This consideration is first provided in this chapter in abstract and then, in chapter two via concrete examples drawn from the French and the German legal systems to offer a broadly representative illustration of the domestic law of notarial authentic instruments in the main EU Member State legal systems.

1 The substantive and procedural laws of France, Belgium and Luxembourg have traditionally been very similar concerning authentic instruments. Recent reforms to the French law have however introduced a measure of difference to this traditional equivalence, see ch 3. 2 Harmonisation to create a European Authentic Act was proposed by the European Parliament in 2008 but has, as yet, not resulted in any legislative proposals from the Commission.

20  Authentic Instrument as a Legal Institution

I.  The Authentic Instrument in Abstract Authentic instruments (whether created by notaries or by other public authorities) are creatures of those codified civil law legal systems that are based upon legal principles and notions derived from Roman and from medieval canon laws in the territories which once formed the western part of the Roman Empire. Considerations of space prevent a full discussion of the development of what is now the authentic instrument from these early times to the point in Napoleonic France at which it attained a fair approximation of its modern domestic form.3 Though the ‘modern’ domestic form of the authentic instrument may be dated from the decision of any given civil law legal system to employ it in their codification of civil and procedural laws, this ‘modern’ form, considered in notarial terms, usually closely resembles the immediate pre-codification authentic instruments in that territory. This intrinsic continuity reflects the ubiquity and indeed ordinary nature of the notarial authentic instrument as a legal institution in the legal systems and territories that have chosen to employ it. Though the authentic instrument, especially in its notarial form, is quite foreign to the legal systems of the common law, it is one of the more mundane provisions of the civil law; so much so that though a case can be made to suggest that the codifications of civil law respectively undertaken in the original six Member States founding the EU (all of which featured authentic instruments) had radical aspects, the authentic instrument is a poor exemplar of such radicalism. Pre- and post-codification, the authentic instrument was commonly either a required or a permitted means by which particular legal transactions could be effected by the party or parties in question by appearing before a notary in a civil law legal system. By requiring or permitting various transactions to proceed before a notary (or other public official) via an authentic instrument, the State thereby compelled the creation of a written record of what was then the best documentary evidence possible of the informed and voluntary participation of a party (or parties) in what that State chose to regard as the most important types of domestic juridical acts/legal transactions. The additional permitted uses of an authentic instrument at the option of a party (or parties) to a juridical act further extended the relevance of the authentic instrument to matters which the parties considered to be important enough to merit this form. The legal institution of the authentic instrument thus offers a means by which a range of important juridical acts may be recorded and effected in a documentary form that benefits from the domestic certainty and evidential advantages associated with a public document. The recording aspect of the notarial authentic instrument stems from the fact that, classically speaking, the notary always retains the original of any authentic instrument he draws-up in his official archive (or Protocol): he will only issue authentic copies (or enforceable copies) of that authentic instrument to the

3 See

however the brief account of this development provided in ch 2.

The Authentic Instrument in Abstract  21 parties and to other persons/institutions legally entitled to demand such copies. The record-keeping duty of the notary extends beyond his professional life; the traditional rule is that when he retires, he must pass on his archive to another practising notary who will thereafter act as its custodian until he, in turn, passes it all on to another such notary. The traditional deposit and custody rules have however been amended in many legal systems to require the deposit of notarial archives of a certain vintage within a central registry. That said, for as long as the traditional deposit and custody rules endure, the State, de facto, benefits from a widely distributed and privately maintained register of all the matters concluded by notarial authentic instrument. The costs of compiling and maintaining this ‘register’ are not borne by the State, they are mostly shifted to the party or parties involved in the making of the juridical act. Cost-shifting is also visible in State requirements concerning the need for relevant private parties to produce authentic copies of notarial authentic instruments to facilitate, inter alia, enforcement, official registration requirements (eg registration of matters in the relevant State Land Registry) and to establish that taxable events have occurred at a given date and for a given value between given parties. The evidential advantages of a notarial authentic instrument arise because the civil law legal systems which use this legal institution regard it as a type of public document. It is a public document either because it is drawn-up by a public official or because it is issued by a public office. The structural relationship of notarial authentic instruments to the broader civil law category of public documents can be illustrated by borrowing from the system of classification of biology. If the public document is regarded as the ‘family’ then the category of authentic instruments may be regarded as a ‘genus’ derived from that wider ‘family’ of civil law public documents. The ‘genus’ of authentic instruments may be further subdivided into at least two different ‘species’ of authentic instrument: the first species comprises official certificates issued by public registries or by public offices such as courts;4 the second species, with which this book is concerned, comprises those authentic instruments drawn-up by a notary. It is worth emphasising that the category of ‘public documents’ employed by the civil law is much wider than the comparatively restrictive common law notion of public documents elaborated by the House of Lords in Sturla v Freccia.5 This width allows civil law systems to accommodate their frequently

4 As will be seen, it is sometimes the case that a person appointed as a notary will additionally have an official capacity in his legal system to carry out judicial or court related functions; in this circumstance because the notary does not then act as a notary (because he is acting as a court) he does not draw-up, create or issue notarial authentic instruments during that time. See Recital 20 and Article 3(2) of the Succession Regulation as discussed in ch 8 below in so far as it concerns notaries who may in certain legal systems such as Hungary have a judicial function as well as a notarial function. 5 Sturla v Freccia (1880) 5 AC 623, as discussed in NP Ready, Brooke’s Notary 14th edn (London, Sweet & Maxwell, 2013) at 6-09, posits four requirements for a document to be a public document at common law: 1) the person making the public document must be under a public duty to inquire and record; 2) the document must relate to a matter of public concern; 3) the document should not be intended

22  Authentic Instrument as a Legal Institution encountered policy of promoting non-contentious or preventive justice via, inter alia, authentic instruments. Thus, unlike the common law, the civil law does not require that public documents must relate to a matter of public concern, it is enough that the notary as an appointed public official may properly act as such to draw-up an authentic instrument concerning the juridical act in question; that this particular juridical act is of no immediate public interest does not debar the document in which it is declared from being classed as a ‘public document’ in civil law legal systems.6 Equally, and in contra-distinction to the requirements of the English common law, it is not deemed necessary by the civil law that ‘public documents’ should be open to public inspection: indeed such general public access is not allowed for notarial authentic instruments.7 Were this otherwise the privately held notarial protocols, in which the originals of all notarial authentic instruments are traditionally located, would have to be open to public inspection; it is not difficult to anticipate considerable difficulties with allowing public access rights to documents that, though in a public form, are privately held and contain very sensitive and confidential information concerning inter vivos and/ or testamentary juridical acts relating to financial, property taxation and status arrangements. As the civil law never grants a general right of public inspection concerning notarial authentic instruments, it may be wondered why the civil law classifies such authentic instruments as a type of public document. The answer to this question is connected to the involvement of a public officer or office in the ‘production’ of the authentic instrument as well as to the advantages for the State and the public of legal certainty and record keeping concerning the most important types of juridical act (as noted above): it also encompasses the public benefits of what the abovementioned civil law legal systems referred to as ‘preventive justice’. The civil law concept of preventive justice is different and unrelated to the more recent common law-criminal law concept with which it incongruously and accidentally shares a name. The civil law concept of ‘preventive justice’ concerns civil law, not criminal law, and refers particularly to the non-contentious aspects of that for temporary purposes but rather to be retained; and, 4) the document must be available for public inspection. See also ‘Study JLS/C4/2005/04 The use of public documents in the EU’ (a comparative study of public documents undertaken by the British Institute of International and Comparative Law reporting in 2007) available from www.biicl.org/files/4612_synthesis_report_legalisation_study_2007. pdf. The EU now has a Regulation dealing with the circulation of public documents – including notarial acts – which applies from 16 February 2019: see Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 OJ L 200, 26.7.2016, pp 1–136. http://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=CELEX%3A32016R1191. 6 There would for example be little immediate public interest in the conclusion of an authentic instrument concerning a loan from ‘A’ to ‘B’ or an authentic instrument containing or concerning ‘C’s’ Will/testamentary arrangements. 7 It may however be that the deposit of notarial records of great age in a central records system may be open to some form of public inspection. Thus details of the lease Thomas Jefferson took in Paris are now available and may be consulted at https://founders.archives.gov/documents/Jefferson/01-08-02-0374.

The Authentic Instrument in Abstract  23 law. In this sense preventive justice represents a systemic aspect of a civil law legal system that is designed to encourage the use of non-contentious legal devices, such as authentic instruments, to minimise the need and opportunity to turn unnecessarily to contentious proceedings. In such contexts ‘preventive justice’ refers to a ‘legal certainty preserving restriction of contentious/litigation possibilities’ that may be exemplified by the drawing-up of an authentic instrument. A rough idea of the preventive justice function of an authentic instrument may be appreciated by considering a hypothetical sale and then transfer of land between ‘A’ and ‘B’ in a hypothetical civil law legal system featuring notarial authentic instruments. If the parties consult with a notary and then appear before him to conclude and record their transaction in a non-contentious authentic instrument it is likely that the notary will be able to establish at the point of drawing it up that ‘seller’ and ‘buyer’: a) are who they say they are; b) that each is of full age; c) that each appeared together with the other one before the notary at a given date and time to signify (by his signature) his understanding of and consent to the sale obligations and transfer obligations (as explained earlier to each by the notary) concerning the specific piece of land to be transferred from seller to buyer in return for the payment of a specific sum of money; and, d) that the required transfer and receipt of the payment in exchange for the sale and transfer obligations concerning the land occurred. The evidence on these points of verified fact exists as of the formal drawing-up of the authentic instrument and does so with the evidentiary advantages of a public document. It may thus be seen that the notarial authentic instrument not only provides a useful means of conveying relevant evidence to any land registry to complete the conveyance and registration, but also that it removes the need to litigate to establish any of the matters of evidence already established by the notarial authentic instrument. In one sense the authentic instrument prevents the need for such contentious legal proceedings and hence it is frequently said that if it is considered as a legal institution, ie as a distinct component of a legal system, the notarial authentic instrument exemplifies the highest level of preventive justice or its synonymous description as non-contentious practice. Non-contentious practice refers to that part of the law and legal practice that determines or settles legal issues without recourse to litigation or other contentious legal proceedings. All legal systems feature aspects of non-contentious practice and hence all provide non-contentious legal procedures that allow factual and legal conclusions to be established without the need to artificially dispute or litigate in circumstances in which, despite there potentially being a difference of opinion between disputants, there is no real legal dispute. The simplest illustrations of non-contentious practice and procedure in common law legal systems arguably concern dispositions of property during life and after death by trusts and by will; in both contexts the common law allows the owner to follow certain formalities to make legally and evidentially effective declarations concerning the subsequent disposition and ownership of his property; in the context of succession the common law additionally provides two separate systems of contentious

24  Authentic Instrument as a Legal Institution and non-contentious probate procedures to minimise or avoid the need to litigate matters when there is no (complex) factual dispute at issue. Within common law legal systems non-contentious matters may appear somewhat piece-meal because of the absence of the organisation that codification brings and also because of the fact that for the common law ‘ex post facto’ recourse to a judge (a public officer) or a court (a public office) to determine disputed facts and legal consequences may be the only option to definitively resolve certain disputes; such ex post facto judicial resolutions do not call into question the earlier domestic actions of English public officers analogous to the notaries of the civil law as there are no such equivalents. Hence there is seemingly no general or systemic need for the common law to apply an overt legal policy to prevent contentious litigation as such, nor to protect the ex ante determinations of public officers who play no domestic role in its law. These conclusions are however vulnerable to the objection that in scenarios in which there might be a clash between matters partially resembling ex ante ‘public-officer’ and judicial ex post facto determinations, the common law does indeed act to minimise the possibility of such a clash. Though the English common law does not feature notarial authentic instruments, it does feature various registration requirements in public registers; the restrictions typically applied to challenging the evidence provided by entries in public registries represent one example of the common law seeking to minimise routine and unnecessary contentious challenges, the restrictions concerning challenges to properly executed legal documents amount to another means by which the common law promotes legal certainty for non-contentious transactions.8 In many civil law legal systems however, not only is the body of noncontentious practice defined with greater precision, due to the systemic need to organise and interrelate its different constituent legal institutions to so codify, but often there is a more overt legal policy of ‘preventing’ unnecessary contentious access to the courts concerning areas of the law that are reserved for such noncontentious practice. This preventive policy features various mechanisms designed not only to obviate the need and the ability for parties to resort to contentious legal proceedings by routinely disputing facts and associated evidential issues already established via non-contentious methods;9 this is intended to reduce the number of cases that might otherwise ‘needlessly’ come to court, and to protect the legal certainty associated with those situations in which there was an earlier intervention by the public official who drew-up an authentic instrument. Though non-contentious preventive justice certainly does not mean that the courts are wholly excluded from the realm of matters concluded via an authentic

8 Including transactions via an English notarial act in authentic form as well as many privately executed documents designed to have legal effects. 9 It is of course possible to exceptionally bring such matters before a court if the appropriate legal procedures are followed to allow the questioning of either the formalities of the drawing up of the authentic instrument, the notarial determinations it includes, or the juridical act it purports to effect. As will be seen however, this disputation may be difficult and costly.

The Authentic Instrument in Abstract  25 instrument, the later involvement of the court in such non-contentious matters is subject to the earlier involvement of the public official in the drawing-up of the non-contentious authentic instrument. Civil law courts will not routinely allow the parties to a non-contentious domestic authentic instrument to attempt to contentiously litigate matters that were already authoritatively stated by the notary (acting as a public officer) in a properly concluded authentic instrument/ public document. This aspect of the design of a civil law legal system may lead a common lawyer to wrongly conclude that the civil law thereby prejudices the rights of the parties by withdrawing challenge options that are intrinsic to the common law and also involves blatant conflicts of interest by requiring (regardless of how many parties are involved in the matter) that the legal advice concerning the transaction be provided by a single notary who also draws-up the authentic instrument. From the perspective of the civil law the errors into which the abovementioned common lawyer falls are: a) assuming an unwarranted width concerning the potential contentious challenge options offered by the common law to its closest equivalents of matters already determined by the non-contentious intervention of a public officer; and b) ignoring or misunderstanding the public duty of the notary, as a public officer, to act impartially by properly advising all the involved parties of the legal consequences of the envisaged transaction and/or juridical act. The first error is quickly revealed when the matter to be disputed is concretised and found to be one for which the common law also restricts the nature of the possible contentious challenges (whether explicitly, by treating a determined matter as conclusive evidence, or implicitly, by restricting the grounds for any appeal). In this context it may be useful to notice again that the certainty furthered by preventive justice in the civil law is comparable to the certainty furthered by the formal registration of certain transactions within given areas of both the civil law and the common law. All modern European legal systems require the registration of particularly important legal transactions: this generates evidence which allows the parties, and any court, to proceed from the register entry and avoids the wasteful need to re-prove these details. Regardless of legal system, such registration requirements foster legal certainty by producing evidence that reduces ‘unnecessary’ litigation on the registered facts. Such registration systems emerged for shares and land quite late in the development of the English legal system during the late nineteenth and early twentieth centuries. For the English legal system it was necessary to start from scratch to legislatively establish the registries, the registerable events, and the voluntary or compulsory nature of such registrations.10 In this respect the civil law legal systems had an advantage over the common law: the principle of preventive justice already accorded the notary who

10 For an illuminating account of the decades of difficulties encountered in attempting to introduce registration of land/interests in immoveable real-property in England and Wales see, S Anderson, Lawyers and the Making of English Land Law 1832–1940 (Oxford, Oxford University Press, 1992).

26  Authentic Instrument as a Legal Institution drew-up an authentic instrument a role in the production of evidence to promote legal certainty by reducing unnecessary litigation. Though the civil law States still needed to establish specific public registries, they had already generally empowered their notaries with the power to draw-up authentic instruments producing evidence that bound a party to a given transaction as surely as any later registration in a State registry.11 The second error arises because the common law lacks a wholly equivalent public legal officer to a civil law notary who is required by domestic law to act at the point of creation/declaration of a juridical act in domestic non-contentious legal practice to effect such juridical acts by drawing-up and retaining an authentic instrument. In the civil law legal systems considered by this book, such domestic non-contentious legal practice is usually connected symbiotically with the legal functions that that legal system reserves directly or indirectly to its notarial profession(s) by requiring that they be effected via notarial authentic instrument. These domestic notarial functions pre-date ‘modern’ codification tendencies and reflect the historical significance of the roles traditionally reserved to the notary by the forerunners of the present European legal systems. For the reader to properly understand the nature of the abovementioned symbiosis between preventive justice/non-contentious practice and the office of notary across different civil law legal systems it is necessary to explore in more detail the preventive role played by notaries in the drawing-up of an authentic instrument.

II.  Notaries of the Civil Law and their Notarial Authentic Instruments Considered in Abstract A notarial authentic instrument12 or ‘authentic act’ is a civil law public document drawn-up by a notary that consists of the entirety of the formal legal declarations of fact consisting of statements made by the parties to the authentic instrument before the notary and then recorded and potentially verified as true by that notary who drew-up the authentic instrument. As an exemplar of the wider civilian concept of a public document, an authentic instrument thereafter imbues its notarially recorded and verified facts with a near conclusive 11 On one view the principal advantage of public registration in such civil law legal systems is to create a single and publicly searchable venue in which the data otherwise scattered across different notarial protocols may be compiled. 12 As indicated above, the legal systems that feature a domestic role for authentic instruments also commonly allow other public offices (or less commonly other public officials) to issue official certificates that are also classified as authentic instruments. Such non-notarial issuers/creators of authentic instruments include various domestic official bodies and courts. The authentic instruments issued by these non-notarial authorities tend to have a predominately evidentiary function, eg to evidence and prove a matter included in an official register via a marriage certificate or an official entry pertaining to birth, marriage or death. It is uncommon for the facts contained in such certificates to be intrinsically enforceable domestically or via EU private international law provisions.

An Outline of the Steps Usually Taken by a Notary  27 evidentiary status of presumed proof according to the domestic law of the place of its creation. At the risk of labouring this important point, it is the notary who, by acting to draw-up the authentic instrument, technically ‘creates’ it as a public document and converts the private declarations of the party or parties he/she has advised into the notarially recorded evidence now presented by the authentic instrument/ public document. It is the formal and official manner of the notary drawing-up the authentic instrument as a public document that ensures that its recordings and notarially verified facts thereafter possess whatever enhanced domestic evidentiary status the legal system of its drawing-up will afford. Typically the aforesaid evidentiary advantage amounts to an immediate and strong, almost conclusive, presumption of truth and proof concerning the properly officially verified facts contained in the authentic instrument; such presumptions mean that the evidence in the authentic instrument is immediately and thereafter treated as de facto conclusive for all parties, legal bodies and offices (including, in some senses, the courts) of the legal system in which it was drawn-up.

III.  An Outline of the Steps Usually Taken by a Notary to Draw-Up an Authentic Instrument It is useful for what follows to set out the basic steps required for the drawingup of a notarial authentic instrument. It is assumed that the hypothetical notary is admitted and entitled to draw-up authentic instruments in the civil law legal system in which he acts. This example concerns one of many different types of juridical act that could potentially be included in an authentic instrument; the transaction involves two parties to a contractual arrangement concerning a loan over immoveable property. Though many notarial authentic instruments will be drawn-up for a single person, the bilateral example provided below has the advantage of also indicating the impartial official advising duties of the notary. It should also be noted that even in a bilateral situation it is not necessarily the case that both parties must be physically present at all times: it suffices that they are legally present (ie via a representative with a power of attorney or equivalent authority)13 or that they have been advised in different locations either by the same notary or possibly even by different notaries both acting (potentially with technical assistance from IT) to conclude the same juridical act via the drawing-up of an authentic instrument). The final caveat is that though the basic outline of what the notary does to draw-up an authentic instrument remains broadly constant, there will be variations in notarial practice, and in the requirements for validity for specific juridical acts, from one legal system to another. 13 It is not unheard of for such representatives to be an employee of the notary who draws-up the authentic instrument.

28  Authentic Instrument as a Legal Institution Two natural persons, ‘C’ and ‘D’, wish a local notary to assist them to conclude a loan agreement which they wish to be secured by a Grundschuld/land charge over ‘C’s’ land in such a manner as to make the agreement immediately enforceable if ‘C’ should default on his repayment obligations.14 The notary will first ensure that each party is fully aware of the nature and meaning of the proposed transaction; he will also impartially advise each party upon the available options by which the desired transaction could be accomplished. After this, the notary will draft an appropriate legal document that will contain, inter alia, the verified identities of the parties, their ages, the exact declarations which each must make (ie any necessary ‘offer’, ‘acceptance’ or consents) to effect the relevant juridical act(s), and a clause whereby the borrower consents to immediate enforcement should he default on the agreement. The notary will also include any other mandatory or voluntary declarations by the parties (as may properly be included in such an authentic instrument). Having prepared the document in draft, the notary will then read it aloud to the parties. Assuming each party then indicates that he understands the transaction and that he still wishes to proceed with it, the notary will then invite ‘C’ and ‘D’ (or their representatives) to sign the document. At this stage the document is still a private document. The private document only becomes an authentic instrument/public document once the notary, having declared upon it that he has read it to the parties, that they have expressly approved all their declarations within it, and that they have then signed it ‘before’ him, finally draws it up as an authentic instrument by signing it himself then formally applying his notarial seal to the document as a notary of his civil law legal system. As may be readily appreciated, this broad outline of notarial practice concerning the drawing up of an authentic instrument tends to generate evidence resistant to opportunistic challenge. No legal system featuring authentic instruments wishes to encourage routine judicial challenges. Challenges are possible, but successful ones tend to be somewhat exceptional.

IV.  An Evidentiary Point: What is and is not Proven by the Authentic Instrument? It is worth noting the elementary evidentiary distinction between the facts actually verified as true by the notary in the authentic instrument and his recording/ inclusion of statements by the private parties. After having received advice from the notary before whom he appears concerning the essential aspects of the

14 This example is loosely based on the dingliche Zwangsvollstreckungsunterwerfung ‘consent to ­execution relating to property’ and the persönliche Zwangsvollstreckungsunterwerfung ‘consent to execution relating to personal assets’ as discussed, with references to case law and literature, by H Amann at para 19, 543–45 in G Brambring and H-U Jerschke, Beck’sches Notar-Handbuch 5th edn (Munich, CH Beck, 2009).

An Evidentiary Point  29 contemplated juridical act, a party will be required to formally identify himself to that notary; assuming the notary is satisfied with the identification provided, he will verify in the authentic instrument, inter alia, that the person appearing before him is actually the Mr John Smith that he claims to be. This is an example of a notarially verified fact and one that has the probative force/evidential force of such a fact. While appearing before the notary immediately prior to the drawingup of the notarial authentic instrument, Mr Smith may also make any number of statements; if these statements are germane (and it is proper to do so) these statements may also be included by the notary in the authentic instrument he will draw-up. The fact that these statements were made by Mr John Smith before the notary (as recorded in the authentic instrument) is hence also a notarially verified fact with a certain probative force; the truthfulness and accuracy of any of those statements is not however therefore also a notarially verified fact unless the notary was competent to go further to establish and verify the accuracy and truthfulness of these matters and the authentic instrument records that he has then acted so to do. If the distinction between a notary recording merely that a given statement was made and a notary going further to record that he has verified its accuracy and truthfulness is not grasped the probative force of an authentic instrument can (wrongly) seem to a common lawyer unfamiliar with this legal institution, to bafflingly provide a means of converting any included statement, eg ‘Mr Smith stated that he owns the moon’, into a conclusive and binding form of evidence of Mr Smith’s lunar ownership ‘merely’ because his making of this statement was included by the notary in an authentic instrument. An authentic instrument confers the domestic evidential advantages and probative force permitted in the place in which it is drawn-up concerning matters that the notary who drew it up has properly recorded as having heard and seen; it also confers its evidential advantages on those facts that properly may be (and have been) verified as true by the notary. That a person verified to be Mr John Smith said before the notary who drew-up the authentic instrument that he (John Smith) owns the moon is clearly a fact, but the mere recording of Mr Smith’s statement in the authentic instrument proves only that Mr Smith made that assertion before the unfortunate notary.15 As indicated above, the legal systems that require (or allow) the domestic use of notarial authentic instruments typically rewards these public documents with an immediate and enhanced evidentiary status and probative force if compared to equivalently worded declarations concerning juridical acts in private documents. For example, it is common that the facts verified by the notary as correct 15 This extreme example ignores the likely effect on the subsequent conduct of the consultation if a party were to so assert lunar ownership before a notary. If, however the improbable example was to be extended such that the notary did then assert that he had verified Mr Smith’s ownership of the moon in the authentic instrument, this improper assertion by the notary could neither bind any party nor prevent the assertion being tested via contentious procedures.

30  Authentic Instrument as a Legal Institution in the authentic instrument must thereafter be presumed to be correct and true by all other parties including the domestic courts in that State, albeit in what de facto is often a prima facie sense pending the admission of compelling evidence to the contrary. He who holds an authentic copy of that authentic instrument can therefore prove certain facts without the need to have a court declare them to be true and proven; he who is faced with such an authentic instrument cannot merely dispute the facts verified by the notary, he must either rebut the evidential presumption with other sufficiently compelling evidence or formally challenge the authentic instrument before the courts of the legal system in which it was drawnup by impugning either its instrumentum or negotium. By way of contrast, the holder of a private document who wishes to rely on it in any legal proceedings can and is routinely required to prove not only the identity of its author and the fact of that author having made those declarations at the given time, but also to then prove the accuracy/truthfulness of those declaratory statements. The evidentiary advantages and presumptions which constitute the probative force of notarial authentic instruments can, of course, be rebutted; thus, the earlier description of the evidentiary presumptions concerning the notarially verified facts included in an authentic instrument was qualified as either almost or de facto full proof/conclusive proof. Though it is possible to challenge the authentic instrument in the place it was drawn-up, the burden of mounting such a challenge lies upon he who would dispute its presumed public document status, its evidentiary effect or the underlying juridical act. There are typically two types of challenge procedure to the authentic instrument itself: a challenge may be based on an alleged defect in the formal drawing-up of the authentic instrument, this seeks to demote the public document to a mere private document to remove the public document advantages; the second type of challenge attempts to rebut the evidentiary presumption concerning one or more matters recorded in the authentic instrument.16 Though such challenges to notarial authentic instruments are always theoretically possible, it will be seen below that it is often technically and practically difficult to defeat an authentic instrument.

V.  Notarial Evidential Determinations in an Authentic Instrument May Allow Immediate Enforcement A common additional domestic advantage of employing an authentic instrument for certain types of enforceable transactions is that in many, but not all,17 of the

16 The challenges are discussed below in ch 2. 17 This potential to independently proceed to execution is not found in Swiss law nor in the law of various EU Member States which all require that the domestic court grant permission to the authentic instrument creditor to allow him to so proceed.

Notarial Evidential Determinations in an Authentic Instrument  31 EU Member State legal systems that feature authentic instruments, the domestic evidentiary advantages of a suitably worded notarial authentic instrument will be sufficiently compelling to allow the creditor of the recorded obligation to directly and immediately enforce it against the debtor without first seeking permission or approval from a domestic court: this is the executory force of an authentic instrument. Where and when this additional advantage of executory force is present, it doubly assists the creditor by removing the need to seek preliminary judicial approval, and because the evidentiary presumptions associated with a suitably worded notarial authentic instrument prevent the debtor from simply denying its evidence to thereby put to the creditor to further proof of the obligation he would enforce. For a debtor to dispute enforceable obligations recorded in the notarial authentic instrument he must assume the burden, costs and potential risks of following whatever means of challenge are available in the legal system of drawing-up. It is not that the creditor of a notarial authentic instrument cannot ever be put to proof concerning the relevant obligation, but rather that the evidentiary presumptions associated with that authentic instrument will, unless the relevant legal system provides otherwise in the course of its actual enforcement proceedings,18 tend to prevent this unless the debtor succeeds in his challenge to the formal status of the authentic instrument or until he rebuts the evidential presumptions associated with its verified facts. Further indirect challenge options, which do not seek to impugn either the formal status of the authentic instrument or the evidential presumptions associated with its contents, involve circumventing the enforcement of the notarial authentic instrument by either producing subsequent admissible evidence that ‘supersedes’ the evidence used to sustain the enforcement proceedings or, when possible, seeking to exploit any other potential to oppose actual enforcement during the proceedings it requires.19 The hypothetical notarial authentic instrument discussed above between ‘C’ and ‘D’ may be used to further illustrate the nature of an indirect challenge to the evidence in a notarial authentic instrument. The authentic instrument drawnup by the notary recorded the fact that the creditor advanced a loan of money to the debtor, which loan was secured by reference to a land charge held by the creditor over the debtor’s land. If the debtor defaults, the creditor can therefore proceed to enforce the payment obligations without first seeking the permission or involvement of the domestic court, however this enforcement could be prevented, without as such impugning the original authentic instrument, if the 18 See ch 2 below for the German and the recently reformed French possibilities of disputing such enforcement. 19 As will be seen below in the discussion of the German legal system in ch 2, it cannot necessarily be assumed that domestic actual enforcement proceedings will also be independent of judicial intervention. A legal system that allows the independent commencement of enforcement proceedings may still feature procedures that allow the obligation debtor to advance factual evidence to indicate that the obligation has been already discharged.

32  Authentic Instrument as a Legal Institution debtor could, during actual enforcement, either prove his earlier payment/repayment, or could prove the fact that the creditor had released him from the relevant obligations (possibly evidenced by producing a different and later notarial authentic instrument). Having completed the present discussion of notarial authentic instruments in abstract, the next chapter will address the nature of notarial authentic instruments in concrete in the broadly representative contexts of French and then German laws.

2 The Authentic Instrument in the Domestic Laws of France and Germany The historical development of the authentic instrument as the foremost expression of the civil law’s concept of preventive justice is interwoven with the historical development of the notarial professions. Though a detailed account of the historical development of the notary is outside the scope of this book, Section I of this chapter provides a sketch of this history to indicate the main stages and particularly the recurring regulatory themes of the development of the notary and the notarial professions.1 Without this outline it is not possible to properly appreciate the development of the notarial authentic instrument in either the French or the German legal systems: further there is a significant risk that readers, particularly those from the common law, may misunderstand the significant differences that have existed and do still exist in the development of different notarial professions and in relation to the nature and origins of the notarial authentic instruments found in each legal system. The information in Section I may also counter the common but misleading assertion that the notarial authentic instrument (and for that matter the office of notary in a civil law legal system) appeared fully formed in thirteenth century ‘Italy’ and thereafter has continued in identical form and perennial vigour across the legal systems of the founding Member States of the European Union: in fact, as this chapter indicates, the notarial authentic instrument and the office of notary have each developed differently across even legal systems as closely located and related as those found in France and Germany. In Section II of this chapter the reader is offered an insight into the development of the notarial authentic instrument leading to the codification of the modern French and German legal systems; an account is provided for each legal system concerning the notarial authentic instrument including its compulsory and voluntary uses, and the different means by which such an authentic instrument 1 The matter is comprehensively addressed in the following works: M Schmoeckel (ed), Handbuch zur Geschichte des Notariats der europäischen Traditionen (Baden-Baden, Nomos, 2009); and within Germany in M Schmoeckel and W Schubert (eds), Handbuch zur Geschichte des deutschen Notariats seit der Reichsnotariatsordnung von 1512 (Baden-Baden, Nomos, 2012).

34  AIs in Domestic French and German Laws may be domestically enforced or domestically opposed. Some awareness of these matters is necessary if the scale, scope and ubiquity of the employment of authentic instruments in civil law legal systems is to be understood. Without an appreciation of these matters it is also difficult to understand the significance of the private international law and other legal provisions presently concerning the cross-border operation of authentic instruments. Equally, an appreciation of the domestic uses of authentic instruments assists a better understanding of the potential for its further development into cross-border matters such as those presently allowed by the developing body of EU private international law Regulations.

I.  Early Origins of Notaries and their Notarial Instruments The notarial professions all trace their origins from the classical world and times in which the ability to write, and hence to record in writing, was a special skill possessed by few. These few included those who the Romans initially called ‘scribae’ but who later were known as ‘notarii’ to distinguish them from scribes generally by reason of their mastery of ‘Notae Tironianae’ (the new technical ‘shorthand’ invented by Cicero’s secretary) that used marks and signs for words. A ‘notarius’ was thus originally a person or educated slave who made stenographic notes recording what had been said in a manner that allowed those statements to be reconstructed into a document that re-presented the oral statements but did so in writing. This task was often exercised in relation to the Roman magistrate’s noncontentious jurisdiction2 over matters such as wills, donations and immoveable property.3 The original functions of the notarii were thus to prepare such documents for a public official who would then complete and perfect the intended legal act by the application of the court or his own official seal. A comparable document-preparing function, albeit one exercised more in a private rather than a public sense, was undertaken by the ‘tabelliones’. The ­tabelliones were a class of private persons who worked in a regulated fashion (and employed clerks) to assist private parties in the preparation of documents concerning private transactions of a non-contentious nature: this could potentially lead to the tabellio drawing-up a final instrument/‘instrumentum’ in accordance with all 2 Roman Law being one that distinguished between contentious (adversarial) and non-contentious (voluntary) justice, see Marcianus, D.1,16,2pr. MARCIANUS libro primo institutionum Omnes proconsules statim quam urbem egressi fuerint habent iurisdictionem, sed non contentiosam, sed voluntariam: ut ecce manumitti apud eos possunt tam liberi quam servi et adoptiones fieri. (MARCIAN, Institutes, book 1: All proconsuls have jurisdiction from the very moment they leave the city, but not in contentious matters, only in consensual ones); for example, children and slaves can be manumitted before them, and adoptions effected. Translation from The Digest of Justinian, (translation edited by Alan Watson, Philadelphia, University of Pennsylvania Press, 2009). 3 For a brief account of another view of the derivation of the name notary see E Rory O’Connor, The Irish Notary 1st edn (Abingdon, Oxon, Professional Books, 1987) 2.

Early Origins of Notaries and their Notarial Instruments  35 the required witnesses and other formalities. Such a document was not merely binding on the private parties who took part in it, but was additionally accorded a somewhat higher evidentiary status than a mere private document by Roman law.4 Over time this higher evidential status for the instrumentum of a tabellio would eventually become equivalent with the full probative force of Roman public documents and such instrumenta would be routinely registered and deposited in the Roman public archives.5 Though some connection between the activities of the Roman tabelliones and the subsequent professional actions of modern notaries seems clear, the actual development of the tabelliones, notarii and even scribae from the time of Justinian through to the end of the medieval period is convoluted and from the fall of the Western Empire to the twelfth century AD, sometimes undistinguished.6 The decline of the Western Roman Empire into illiteracy, orality and obscurity reinforced the advantages for those who gradually replaced aspects of its governance of having persons within their employ who could read, write (even if formulaically) and, where necessary, potentially understand the texts and transactions that had once been deemed important enough to record or determine via official/magisterial actions. In particular the Catholic Church, for hundreds of years the most literate and international body in Europe, found various uses for notarii and other literate persons in the course of its ‘apostolic’ and diplomatic interactions with the rest of Europe.7 Such papal or apostolic notaries, with what now can appear a relatively geographically unlimited competence, offered a range of useful diplomatic and quasi-diplomatic authentic written recording services to 4 See NP Ready, Brooke’s Notary 14th edn (London, Sweet & Maxwell, 2013) 1-02, 3 who clarifies that the instrument produced by such a tabellio was not treated as possessing the full probative or evidentiary force of a Roman public document: if the tabellio’s instrument was challenged he had to defend it in court by oral testimony (see Justinian’s 73rd Novel chapters 5–7). It was possible to convert the instrumentum publice confectum of the tabellio into an instrumentum publicum (with full probative force/fides publica) if it was formally presented by an applicant to the curia in the course of a proceeding called allegatio apud acta; this process did however require that the other party either consented to the promotion of the instrumentum. Lack of consent and resultant disputation were thus real risks of so proceeding: for as long as it was an option, the allegatio apud acta procedure was thus probably somewhat exceptional. 5 See Ready (n 4) 1-02, 3. 6 Bellomo at 43 refers to the Lombard king Liutprand (AD 713–735) who in his 91st Edict (from AD 727) forbade, ‘… the scribae (roughly, notaries) from compiling cartulae (written acts documenting a juridical act) without direct vision and an actual reading of the text of the law, Lombard or Roman; next, he established that cartulae could be written if the legislative text was known at least from the report and testimony of someone who had actually seen it; finally, he established severe penalties for non observance of those measures’. The need for such an edict becomes clear at 46 where Bellomo notes the semi-literate nature of many such contemporary ‘notaries’ and compares this with their even less perfect legal knowledge, ‘ they were totally ignorant of both the concrete concepts that had been elaborated by Roman legal science and the concepts incorporated into the various barbarian norms (gewere, wadiatio, thingatio, etc.). This led them to jumble together in one act legal concepts or terms whose names they recalled, for instance designating the same legal act as a transaction, a donation, a sale, or barter exchange’. See Manlio Bellomo, The Common Legal Past of Europe 1000–1800 (LG Cochrane trans, Washington DC, Catholic University of America Press, 1995). 7 See O’Connor (n 3) 3.

36  AIs in Domestic French and German Laws the Church. Those outside the Church often sought to emulate aspects of these functions and hence appointed their own equivalent versions of such notaries.8 Chief amongst those who ruled Europe and wished to emulate the Church by appointing and regulating their own notarii, scribae and tabelliones – terms which from this period are often synonymous and interchangeable – was Charlemagne, the Holy Roman Emperor: he appointed ‘imperial notaries’ and in AD 803 instructed other ‘nobles’, bishops and abbots to also appoint their own notaries. In the considerable political instability which followed the gradual disintegration of that which Charlemagne had acquired by his successors, various other less august rulers also appointed notaries to assist their administrations with ‘reliable’ documentary evidence recording statements and acts. Notaries were also appointed to attempt to prevent or reduce the mischiefs routinely associated with legal documents composed for those who could not read in a world in which orality tended to prevail, subject to the considerable complicating factor that many of the major European languages, including French, German and even (vulgar) Latin, were themselves then also in a period of considerable flux. As during the Roman and post-Roman periods, it is desirable to distinguish between the ‘secular’ notaries with administrative roles focussed on ‘quasi-diplomatic’ functions and the ‘secular’ notaries variously appointed to draw-up authentic writings concerning what we would now regard as non-contentious matters arising from private arrangements and associated juridical acts.9 For reasons of space and relevance only the second type of ‘secular’ notary will be considered here. It seems probable that initially such ‘secular’ notaries were appointed to act as a quite minor official intended to assist the official magistrates also appointed by the Ruler to assist the administration of justice by using their writing skills to draw-up the non-contentious documents for the magistrate who would then seal them in the name of the Ruler/noble to bring them into legal effect. Over time this assistant role of the ‘secular’ notary became transformed in certain places into that of an official able to exercise the drawing-up and the sealing of certain types of non-contentious documents; during these tasks he would also make authentic recordings with the subsequent probative force of the sealed documents

8 In AD 805 Charlemagne required that every Bishop, Abbot and Count appoint a notary to produce authentic written writings (and hence a record) concerning his particular ‘administration’. 9 The designation ‘secular’ notary is used to indicate that the notary was not appointed by the church. It must however be remembered that such a notary might himself wish to be associated with the church to further his range of action. Such a ‘secular’ notary might therefore still seek to hold a role (eg minor orders) within the Church. See James M Murray, ‘The Profession of Notary Public in Medieval Flanders’ (1993) 61 Tijdschrift voor Rechtsgeschiedenis 3, 5 who notes the difficulty of distinguishing whether the place indicated by the notary in his eschatocol (the closing paragraph of a notarial instrument that identifies its participants and drafter in relation to the act it records) indicates the place of his notarial appointment or the place where he was admitted to minor orders (or both). Murray, at fn 6, references similar observations by CR Cheney, Notaries Public in England in the Thirteenth and Fourteenth Centuries (Oxford, Oxford University Press, 1972) 88–89. See also 13 of Murray where the relative ease with which a notary could assume (or cast-off) minor orders and a semi-clerical status is discussed.

Early Origins of Notaries and their Notarial Instruments  37 appropriate to the occasion of their creation. This transition of notarial role from ‘secular’ notary as assistant to ‘secular’ notary as an official representative able to act in an official capacity seemingly occurs first during the twelfth century AD in various Northern Italian city-state jurisdictions (Bologna and Florence)10 and broadly coincides with both an upsurge in commercial and social relations between those located within those jurisdictions and with the material improvement of legal learning and literacy11 associated with the development of the School of Bologna following the ‘re-discovery’ of the Corpus Iuris Civilis. The period is also locally significant concerning the tentative developments it saw concerning the authenticity and probative force of notarial instrumenta. The notaries of different city states of northern Italy sought, with eventual success, to claim a more extensive pedigree for the probative force of their instrumenta than might objectively have been deduced from their own immediate status; they did so by determinedly asserting that such instrumenta should be understood to provide the same intrinsic publica fides and probative/evidentiary force as a Roman public document. This professionally advantageous assertion, which, somewhat improbably, was eventually founded on a positive inference deduced from a negative clause contained in a single sentence of a Decretal of circa 1167 by Pope Alexander III, prevailed gradually within Apostolic/Ecclesiastical courts and eventually became accepted as a principle of cannon law.12 As for the development of a special executory force for notarial instruments, this also followed locally in the northern Italian city states but some time after the notion of an independent authenticity/probative force for correctly verified and drawn-up notarial instruments had been established; in some Italian jurisdictions it was not long before the possibility of a notarial instrument also possessing an executory force similar to a judgment, ie independent of a preliminary need to secure judicial permission prior to actual enforcement, was established.13 According to Wolfsteiner the first recorded example of an enforceable authentic instrument dates from Florence in 1251.14 From this point it becomes theoretically possible in certain legal jurisdictions15 for a notarial instrument to be drawn-up not only to possess authenticity and probative force concerning its notarial verifications but also for it to possess what in some places could be an additional executory force allowing an intrinsic enforceability for those enforceable verifications. Though this development concerning executory force is important, it must

10 See Peter L. Murray and Rolf Stürner, The Civil Law Notary – Neutral Lawyer for the Situation, 1st edn (Munich, CH Beck, 2010) 10 and Ready (n 4) 1-05, 5–6. 11 See Bellomo (n 6) 152–53 discussing the notary and the learning of the ius commune. 12 For the text and a translation of the relevant part of the Decretal see Ready (n 4) 1-05, 6, also F Roumy, ‘Histoire du notariat et du droit notarial en France’ in Schmoeckel (n 1) 125 who at 127 also mentions the growing authority of papal and imperial notaries over this period. 13 See Ready (n 4) 1-06, 7. 14 Hans Wolfsteiner, Die vollstreckbare Urkunde, 3rd edn (Munich, CH Beck, 2011) 6. 15 Such jurisdictions could be very small indeed – a given city-state for example.

38  AIs in Domestic French and German Laws not be misunderstood: it did not apply thereafter throughout all of what we would now understand to be continental European legal systems; nor did it apply to overcome the considerable practical difficulties that would attend any person seeking to enforce a notarial authentic instrument or judgment from Florence other than in Florence. As well as marking an early flourishing of notaries and the probative and executory force of their notarial instruments, different parts of twelfth and thirteenth century Italy also saw development concerning the office of notary and the clarification of notarial duties and training associated with preparing and retaining ‘authentic’ written records for the non-contentious legal transactions that notaries were competent to carry out independently: though the matter must not be overstated, what may loosely be described as ‘the Italian model’ would prove to be influential not just in Italy but more so outside Italy especially in France and elsewhere in continental Europe.16 The many subsequent attempts to impose legal and professional regulation on the different ‘secular’ notarial professions17 found in the varied territories and legal systems which could be said to comprise Europe from the twelfth century18 until the French Revolution tend, with certain exceptions of broader influence,19 to be fractured along monarchical lines. The regulations promulgated have a fairly similar content suggestive not only of the desirable attributes of the notary but also of the considerable and sadly recurring potential for the misuse of the office: typically the regulations stress the desirable personal and professional attributes of the notary and deplore undesirable qualities that they seek to discourage by the threat of grievous punishment and mutilation. What we would regard as elementary professional conduct rules are set out, and the regulation usually specifies how the notary should (and should not) draw-up and retain or record his (authentic) documents and official copies relating thereunto. Though the abovementioned developments concerning the probative and the executory force of notarial instruments, and the emergence of a recognisable 16 Ready (n 4) 1-06, 7 and fn 21 mentions the influence of the Bolognese notary and teacher of notaries Rolandino Passaggeri (1215–1300) who extended his influence in terms of teaching and notarial practice by publishing Summa Totius Artis Notariae circa 1295: a photographed copy may be inspected online from http://reader.digitale-sammlungen.de/de/fs1/object/display/bsb11201406_00006.html. 17 Concerning the ‘French’ notary, in 1269/70 Louis IX allowed Parisian notaries to create authentic and enforceable documents, soon after early attempts began to try to regulate these possibilities and the profession: ‘It began in 1304 with the “Ordonance sur les tabellions et notaires” by Phillip the Fair and continued through the entire 14th and 15th Centuries, achieving a measure of success only towards the end of the 16th Century’, Murray and Stürner (n 10) 15 (footnotes omitted). 18 See the discussion of the regulation of the notarial profession in Sicily and parts of southern Italy effected in 1231 by the Holy Roman Emperor Frederick II of Sicily and Jerusalem (etc) by the Liber Augustalis or Constitutiones of Melfi in Murray and Stürner (n 10) 13–14. 19 As well as the 1231 Liber Augustalis, which was of greater influence than in just Sicily because it was established by the Holy Roman Emperor, various royal decrees were issued in parts of France over the fourteenth to sixteenth centuries and the Reichsnotariatsordnung of Emperor Maximillian I of 1512 directed the Germanic parts of the professions for many years to come. See discussion with references in Murray and Stürner (n 10) ch 2.

Early Origins of Notaries and their Notarial Instruments  39 notarial profession in Northern Italy, are each important, the glimpse that they provide of a given possibility should not be assumed to indicate either that this possibility was at that time general across Europe; nor should it be assumed that it continued in this original ‘Italian’ form across all ‘European’ legal systems, or even those who were influenced by it at an early stage. Even after the thirteenth century, establishing the probative force and authenticity of a notarial instrument was often less than straightforward: despite parts of France initially following aspects of the ‘Italian model’, the ancient ‘French’ local laws (outside the special area of notarial practice that was Paris) commonly required that for a notarial instrument to have authenticity/probative force it had to be sealed with a seal from the local court of the area in which it was drawn-up.20 Such sealing could either be done at the local court or by a person, possibly but not inevitably the notary, allowed to possess and use a court seal in this manner.21 Over a considerable time such local obstructions to the presumption of full independent authenticity and probative force for appropriate notarial verifications in duly drawn-up notarial instruments would be practically and then legally circumvented within France.22 One factor in this development was that in France, and across Europe, the profession of notary expanded its numbers and its more desirable proponents developed an expertise in non-contentious matters that, in many territories, convinced those making or administering the laws that the authenticity and probative force of a notarial instrument should normally, unless a competent legal challenge had been lodged, be presumed to flow from the fact that it bore the notary’s own official seal rather than because of a subsequent application of a seal applied in confirmation by the local magistrate or court.23 That said, it should not be concluded that this ‘liberation’ of the French notary meant that French courts and public authorities ceased to be relevant for the purposes of a party who wished to establish the authenticity of a juridical act in France; the alternative possibilities offered by courts, and other public authorities, remained intact in different parts of France for many years.24 A further issue that should not be overlooked concerns the actual enforcement of a notarial instrument. As today, actual enforcement first depends on the

20 See Ready (n 4) 1-06, 8. The position in Paris was traditionally that sealing was not required see WW Smithers, ‘A History of the French Notarial Profession’ (1911–12) 60 University of Pennsylvania Law Review 19, 27. 21 See Smithers (n 20). 22 In 1706 Louis XIV abolished the office of ‘Gard Scel’ (keeper of the court seal) and required every French notary to obtain and then to use a notarial seal that bore the King’s Royal arms to confer authenticity on the authentic instrument, see Smithers (n 20) 27. See also Ready (n 4) 1-06, 8 who notes that Louis XIV thereby removed the dependence of the authenticity of French notarial instruments on a notional judicial intervention. 23 Ready (n 4) 1-06, 8, describing the abolition of the court seal requirement and granting of independent seals to notaries in France by Louis XIV. 24 See Roumy (n 12) 128 and 130–45 distinguishing between the position of the Italian model of notarial practice and modes of proof in the north and south of France from the thirteenth until the seventeenth century.

40  AIs in Domestic French and German Laws authenticity/probative force of the relevant notarial instrument being understood to allow this enforcement and then second on the ability of that instrument to engage successfully with the target debtor via the available legal ‘machinery’ provided for enforcement in the relevant territory chosen for enforcement. At a time when Europe was a bewildering patchwork of territories and laws, administered by different and frequently warring kings and nobles, the actual enforcement of any given juridical act could be difficult; if however the alleged juridical act was said to be evidenced by a notarial instrument drawn-up by a notary not necessarily appointed to that office by the same Noble, or even by the same class of Noble, who in that locale was charged with what we may abstractly refer to as ‘the administration of justice’, then greater enforcement complexities could easily arise.25 Even if the authenticity and probative force of a given notarial instrument was unambiguously established, its actual enforcement might require, or be made subject to, the seeking and securing of additional permissions and formalities from the relevant local Noble or his representatives. The actual enforcement of notarial instruments would also variously remain subject to local ‘judicial’ permissions and theoretical or real legal oversight until the establishment of the ‘modern’ regulation of the notarial professions associated with the moves to codify the private law of a given jurisdiction. By way of example, though the notion of the executory force of a notarial authentic instrument has been quite durable in France and throughout its legal systems (in 1539 Francis I unambiguously established it in French ‘secular’ law while also requiring that thereafter all French authentic instruments be drafted in French)26 this was not the case in Germany. Indeed the notion of an executory force for authentic instruments in Germany had fallen away to such an extent that it was not even alluded to in the Reichsnotariatsordnung of the Holy Roman Emperor Maximillian I in 1512.27 Prior to and after this attempted reorganisation of the Germanic notarial profession, the law in ‘Germany’ did not regard a ‘German’ notarial authentic instrument as possessing any inherent or intrinsic executory force until the French annexed the left bank of the Rhine in 1796 and de facto introduced the notion of such executory force by imposing French law on this and all other issues.28 In 1798 the executory force of a notarial authentic instrument was confirmed in the French annexed territories of Germany by a Notariatsordnung which reorganised the notaries in those territories and their 25 For an overview of some of the wider political issues from the time of Edward II until Henry VIII concerning political tensions arising from notaries appointed by foreign powers (whether apostolic or imperial) then attempting to operate in England, Ireland or Scotland see O’Connor (n 3) 6–9. 26 Prior to this Royal intervention, which also required all authentic instruments to be in French and imposed further requirements for admission to the office of notary, executory force for notarial authentic instruments in France was somewhat more variable, see Smithers (n 20) 26. 27 See the Reichsnotariatsordnung of Emperor Maximillian I of 1512 discussed by Wolfsteiner (n 14) 7 and by Murray and Stürner (n 10) ch 2. 28 See Wolfsteiner (n 14) 7.

Early Origins of Notaries and their Notarial Instruments  41 domestic law along the lines of the then contemporary French notarial laws: this provision reintroduced the intrinsic executory force of an authentic instrument into ‘Germanic’ law after hundreds of years during which that concept was unknown in those territories.29 As these brief overviews of the actual condition of probative and executory force in France and Germany show, the importance of the early developments in twelfth and thirteenth century Italy30 should not be misunderstood to indicate anything like a single and ineluctable trajectory of development concerning either notaries or their modern legal functions (including drawing-up authentic instruments) from the times of the Roman notarii and tabelliones through the dark and middle ages of continental Europe via the Italian city states and the Renaissance and then into the codifications of the nineteenth century: such are the discontinuities in this development that it is probably better to regard the role of the notary and particularly his notarial authentic instruments from any of these periods as indicating something similar to occurrences of convergent evolution whereby useful characteristics evolve and re-evolve in similar, if not identical, forms across different environments at different but propitious times.31 The significance of this suggestion for any study of cross-border authentic instruments is not just that the legal institution evolves to its environment (and continues to do so), but also that it indicates that suggestions of uniformity for that legal institution should be treated with caution: there are historical and legal differences between authentic instruments from different legal systems which, it is suggested, must be considered if the law and private international law by which the cross-border interactions of authentic instruments are to be understood. A point of notarial practice that does genuinely resound from the Roman times and across history by being regularly repeated by almost every serious attempt at regulating the notarial profession (even into present day notarial regulation) concerns the limitation of the notary’s ability to record binding factual evidence in his authentic instruments: this power is limited to that which he actually hears, sees and perceives to have been true or that which he can properly verify to be true. The import of this observation for the legal regulation of the notarial profession varies across time, but it is suggested that the modern reader notes not

29 See Wolfsteiner (n 14) 7 concerning the 1798 Notariatsordnung established in parts of Germany prior to the French modernisation of its notarial profession by the Ventôse Act of 1803. 30 G Leutner, Die vollstreckbare Urkunde im europäischen Rechtsverkehr 1st edn (Berlin, Dunkler & Humbolt, 1997) at 85 tellingly refers to France as the motherland of enforceable authentic instruments and describes Italy as having had only a ‘grandmother role’ in such developments; the modern development of the Italian notarial authentic instrument occurred after the French notary law of 1803. 31 Convergent evolution occurs when there is an evolutionary tendency for different lineages to evolve towards certain common characteristics (such as an ability to fly (consider birds, bats and insects) or the evolution of ‘sabre-teeth’ in cats (which has evolved at least three times at different times and places for different types of cat)).

42  AIs in Domestic French and German Laws only the continued relevance of the principle, but also considers the positive32 and  ­negative33 aspects of such exhortations and restrictions in the context of the different strands of the notarial professions presently found in the EU. Having indicated something of the complexities of the origins and development of the notarial authentic instrument in the period prior to the modern codifications it is now possible to turn to a consideration of their treatment within those modern codes.

A.  The Notary and Notarial Instruments in the Legal Codifications of the Modern Period The modern codifications of private law and civil procedure in the French and German legal systems over the nineteenth century each reflect a continuing and general role for preventive justice; the authentic instrument, whether drawnup by notaries or issued by other public officers, plays an important role in this plan. Taken together, the respective codified laws of France and Germany also variously formalised the evidential significance of public documents (including notarial authentic instruments) and the situations in which notarial involvement was mandatory rather than optional. They did not however seek to provide in the general codification of either private law or civil procedure a wholly novel and minute definition of a notarial authentic instrument as such; instead they continued earlier domestic forms of notarial regulation while rationalising and extending notarial functions including the ability to draw-up authentic instruments equipped with probative and, potentially, executory force. Though each codification movement was drafted, published and occurred at an opposite end of the nineteenth century, the various codifications of law and notarial practice within the French and German legal systems each reflect the enduring significance of the notary and the authentic instruments they could draw-up. This chapter attempts to briefly indicate something of the nature and scope of this significance for those readers who are not already familiar with it. The importance of grasping this domestic significance is not only that such appreciation assists comprehension of the nature, operation and extent of notarial authentic instruments, but also that it assists an understanding of what each legal system’s procedural law and private international law must provide for the crossborder use of such authentic instruments: to understand the European private international law of authentic instruments and to understand its own development it is necessary to appreciate what exists (and what is being developed) at the national level.



32 ie 33 ie

concerning that which a notary can do. concerning that which a notary cannot do/must not do.

The Development of Domestic Notarial Authentic Instruments  43

II.  The Development of Domestic Notarial Authentic Instruments A.  The Development of Authentic Instruments in the French Legal System The French legal system makes extensive use of public documents such as authentic instruments issued by public officers including those drawn-up by its notaries. Though not unitary, ‘the’ office of notary was of long standing in the different territories that constitute what we now call France and, but for the brief interruptions attributable to the French Revolution, notaries have been multitudinous34 and play an important role in and across the French legal system from the earliest times. The French Revolution interrupted and changed notarial practice, as prior to that period some, but not all, offices of notary had been rendered hereditary by the intervention of Louis XIV.35 All forms of preRevolution French notary mixed their official aspects and official functions with a private enterprise desire to maximise the profits accruing to the notary from the performance of his official functions: such offices were hence bought and sold in a venal manner that, though frequently condemned, proved difficult to reform.36 With the Revolution all, seemingly, changed. The pre-revolutionary offices of notary were abolished over 1790–9137 and after 13 years, one such office was definitively reformed into the modern notary, a hybrid public officer who, because he was never quite classified as a civil servant, was still entitled to make private profits in the course of performing the newly regulated office to which he had been appointed for his life within a defined region of France.38 This ‘new’ French notary was subject to national legislative regulation, most ­notably the Loi du Ventôse an XI of 1803.39 This Loi was ‘revolutionary’ in some

34 Murray and Stürner (n 10) 15 suggest that prior to the Revolution there were circa 40,000 notaries in France. Roumy (n 12) 164 estimates that this number reduced to roughly 20,000 at the eve of the Revolution then to 8,000 at the end of the nineteenth century and is presently circa 4,500. 35 The most prestigious and profitable Royal notarial appointments made by the French Crown could not only be sold (as was the case for most notarial appointments) but could also be inherited. 36 Not only was there the problem of reform cutting off monies received by the state from the sale of offices but also there was the prospect of compensating existing office holders. See E Suleiman, Private Power and Centralization in France: the Notaries and the State (Princeton, Princeton University Press, 1987) 36–37. 37 Along with other comparably ‘anti-revolutionary’ legal offices, eg Huissiers, Suleiman (n 36) 37 who also notes that the notaires were by the law of 29 September–6 October in 1791 permitted an indemnity to compensate them for the loss of their office. 38 Traditionally speaking the appointment of notaries, whether in the civil law or in the common law, was usually regional: ie a notary would only be appointed and authorised to practise in a particular region of a given country or state. Sometimes the presence of different legal systems within a given state might account for this, but wider political reasons tend to be the dominant determinative factor. 39 Considerations of space prevent the exploration of the condition/regulation of the notary after the revolution but before 1803. The 1803 law in its original and present heavily reformed condition is

44  AIs in Domestic French and German Laws respects but was conservative in most respects as it maintained continuity with as much pre-revolutionary notarial law and practice (including the continued use of authentic instruments and notarial ‘regionality’ within defined parts and regions of France) as was deemed acceptable in the post-revolutionary legal environment;40 in this respect the regulation of the French notarial professions presaged the equivalent conservative treatment of most civil law by the Code Civil (CC) of 1804. Though now heavily amended by later French legislation, the 1803 Ventôse law is still partially in vigour; its example of notarial regulation has influenced the statutory regulation of the notarial professions of other civil law jurisdictions whether by reason of different forms of Napoleonic conquest, for example Belgium, Spain, Italy, the Netherlands, Luxembourg and parts of Germany, or by providing an exemplar of notarial regulation that many other civil law legal systems could, mutatis mutandis, also adopt. Article  1 of the Ventôse law distinguished between scenarios in which the use of an authentic instrument was required and scenarios where a party merely wished to opt to record a juridical act in a notarial authentic instrument:41 though Article 1 has since 1945 been repealed and replaced,42 modern French law continues to reflect this approach to authentic instruments. A caveat must however be noted; notaries are sometimes one of a range of ‘public officers’ entitled to draft certain types of authentic instruments as specified in the legislation. Thus, though the specific use of a notarial authentic instrument is explicitly required by various provisions of the Code Civil, including examples that follow, there are further matters that may involve other types of authentic instruments that public officers, whether or not notaries, may also draw-up.43 It is necessary to consult a notary in the following examples drawn from the French Code Civil; assuming the notary consulted can act, an authentic instrument must be drawn-up to effect these examples. A notarial authentic instrument is required to: make or accept an inter vivos gift;44 make formal public

set out by Legifrance at www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070994 &dateTexte=20110616. 40 See Roumy (n 12) 158–60. A further example of the conservative nature of the French legislation concerning notaries is provided by the fact that the sale of notarial offices that had been abolished by the Revolution was de facto allowed again by Art 91 of the Loi des Finances 28 April 1816 see Suleiman (n 36) 40–41. 41 See Loi 1803-03-16 Bulletin des Lois, 3è S, B. 258, n° 2440. 42 See Ordonnance n° 45-2590 du 2 novembre 1945 relative au statut du notariat – Article 10. 43 As well as notaries the other public officers could – depending on context – include judges, magistrates, Huissiers and possibly other officers of state such as diplomats or consuls. Examples of this wide class of authentic instruments not necessarily reserved exclusively to notaries includes: Art 73 CC – a formal consent to a marriage; Art 316 CC – an acknowledgement of paternity; Art 348-3 – a consent to adoption; and any formal statements that may be required to be included in an ‘acte de notoriété’ to allow a party to offer a declaration of truthfulness (eg in the Code Civil see Art 71 CC, Art 310-1 and 3 CC, Art 317 CC, Art 335 CC, Art 730-1 CC and Art 815(11) CC). The Code de Commerce features sundry other commercial matters that a notary (or other public officer) could draw-up as an authentic instrument (including various actes de notoriété), see Ready (n 4) 11–26. 44 Arts 931–932 CC.

The Development of Domestic Notarial Authentic Instruments  45 transactions involving property rights (eg registration requirements) associated with immoveable property;45 make a valid and enforceable lease contract for land;46 make a Will by public act;47 make a secret/mystic Will;48 unambiguously revoke a Will;49 unambiguously renounce an inheritance;50 create a particular instrument of loan (and receipt of the same) by which it is intended that the creditor’s rights will be subrogated to the lender;51 make or vary matrimonial agreements;52 allow a debtor to acknowledge the assignor’s assignment of a debt to the assignee;53 or, allow a mortgage or security to be granted over the assets of a Partnership.54 In other situations the parties may opt to proceed via a notarial authentic instrument: such a voluntary use of an authentic instrument cannot remedy or perfect a transaction that is otherwise legally imperfect, ie an impermissible inter vivos gift,55 but it can immediately confer the general evidential advantages associated with employing a notarial authentic instrument upon that matter and for the party or parties associated with it.56 There are a range of plausible reasons to opt for the authentic instrument as a means of concluding certain transactions; eg opting to record a loan or advance of money made for the specific purpose of the purchase of an immoveable property (or for the payment of workers) via a notarial authentic instrument will allow the lender/creditor and also his purpose to be identified and hence to benefit from the special privilege of priority over other general creditors accorded by Article 2374 CC.57 As may be appreciated, there are many other commercial and business situations in which it may also be useful to record at a given date one’s stated purpose in acting. More generally, any creditor of a suitably worded notarial authentic instrument which contains a juridical act involving an enforceable financial obligation may, in the event of a default by the obligation debtor, proceed to immediate enforcement of the enforceable parts of that authentic instrument as recorded by the notary in the official authentic copy provided to the creditor for such execution: this creditor is thus given an 45 Art 710-1 CC. 46 Art 1750 CC. 47 Art 971 CC. 48 Art 976 CC. 49 Art 1035 CC. 50 Art 930 CC. 51 Art 1346-2 CC. 52 Art 1394 CC (creating such agreements) and Art 1396 CC (varying such agreements). 53 Art 1690 CC: this is one way to allow the assignment to be effective against third parties. 54 Art 1844-2. 55 See however Art 1832-1 CC which deals with the special situation of spouses entering into a commercial partnership, if an authentic instrument has been used to describe and set out their contributions the spouses will not be debarred from benefitting from the partnership because of what would otherwise be treated as a disguised inter-spouse donation. 56 See Art 2441 CC concerning the cancellation of an entry on a register – the use of an authentic instrument is one way to authoritatively evidence the consent and identities of the relevant parties to this matter. Equally an authentic instrument must be used to register matters as per Art 2524 CC. 57 In essence the money so supplied and described in the authentic instrument remains distinct from general funds, see Art 2374 2° and 5° CC.

46  AIs in Domestic French and German Laws additional enforcement option to proceeding to court to seek a judgment as an enforceable title, which he may exercise at his discretion.58 Having set out a representative number of the different situations in which the French legal system domestically requires or allows the use of a notarial authentic instrument it is now possible to proceed to consider the provisions of the Code Civil which set out the attributes and requirements of authentic instruments. These provisions are found in a part of the Code Civil that was renumbered and redrafted with effect from 1 October 2016.59 The 2016 changes have seen a notional reduction of the number of articles formerly provided under the Code’s subheading specific to authentic instruments from six60 to three. The new and redrafted Code Civil articles introduced by the reforming 2016 Ordonnance are intended to modernise, simplify and rationalise the older provisions (and their accumulated amendments) concerning, inter alia, the different types and methods of civil proof. The relevant provisions on authentic instruments are relocated to Book III, Title IV bis, Chapter III; Section 1 of which is concerned with written evidence. Subsections 1, 2, 3 and 5 include provisions on proof that now relate to French authentic instruments. Two provisions in Subsection 1 mention authentic instruments: Article  1364 makes plain that proof of a juridical act is established in advance (ie immediately) if that act is created in writing in an authentic public form (or alternatively by a private document signed by its parties); Article 1367 provides, inter alia, that if a juridical act requires a signature to perfect it, such a signature identifies its author and demonstrates his consent to any obligations that flow from that juridical act; more significantly for present purposes Article 1367 also provides that if a public official (inter alios a notary) affixes his signature to such a juridical act this confers authenticity on that juridical act. Subsection 2 is headed ‘L’acte authentique’; it comprises Articles 1369 to 1371 which are quoted below in their original61 and ‘official’ translated forms.62 Article 1369: L’acte authentique est celui qui a été reçu, avec les solennités requises, par un officier public ayant compétence et qualité pour instrumenter.

58 There are circumstances in which the creditor would still wish to proceed to court and his freedom to do this is preserved despite the initial decision to use the authentic instrument to complete the transaction. 59 See Ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations, NOR: JUSC1522466R available from www.legifrance.gouv.fr/ affichTexte.do?cidTexte=JORFTEXT000032004939&categorieLien=id ; for a generally critical assessment of the ordinance’s reform of the French law of evidence see Étienne Vergès, ‘Réforme du droit de la preuve civile. – Quelle perspective après l’échec de l’ordonnance du 10 février 2016?’ La Semaine Juridique Edition Générale n° 18, 1er Mai 2017, doctr. 510. 60 The six articles in the Code Civil in force prior to the 2016 reforms, as found in Book III, Chapter VI, Section 1, Paragraph 2 under the heading ‘Of authentic titles’, were Arts 1317, 1317-1, 1318, 1319, 1320 and 1321. 61 The reform of 2016 was effected by Article 4 of Ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations. Under the pre-reform version of the Code Civil, the subsection on authentic instruments was found in Arts 1317–1321(1) Code Civil. 62 English translations from 51–52 of The Law of Contract, the General Regime of Obligations, and Proof of Obligations; the new provisions of the Code civil created by Ordonnance n° 2016-131

The Development of Domestic Notarial Authentic Instruments  47 Il peut être dressé sur support électronique s’il est établi et conservé dans des conditions fixées par décret en Conseil d’État. Lorsqu’il est reçu par un notaire, il est dispensé de toute mention manuscrite exigée par la loi. English translation: An authenticated instrument is one which has been received, with the requisite formalities, by a public official having the power and the function to draw it up. It may be drawn up in an electronic medium if it is created and stored on the conditions fixed by decree of the Conseil d’État. Where it is received by a notary, it does not require any statement in his own hand otherwise required by legislation. Article 1370: L’acte qui n’est pas authentique du fait de l’incompétence ou de l’incapacité de l’officier, ou par un défaut de forme, vaut comme écrit sous signature privée, s’il a été signé des parties. English translation: An instrument which is not authenticated as a result of the lack of authority or incapacity of the official, or of a defect in its form, takes effect as a signed document provided that it was signed by the parties. Article 1371: L’acte authentique fait foi jusqu’à inscription de faux de ce que l’officier public dit avoir personnellement accompli ou constaté. En cas d’inscription de faux, le juge peut suspendre l’exécution de l’acte. English translation: An authenticated instrument constitutes proof of the act it contains unless an allegation of forgery against the relevant public officer as regards things which he has personally accomplished or has given formal recognition is made. Where the instrument is forged, the court may suspend its performance.

These three articles set out the modern general substantive civil law concerning authentic instruments in domestic French law. The first sentence of Article 1369 CC describes the domestic requirements for the creation of an authentic instrument; the instrument must be received with the required formalities by a public official who has both the legal power and the legal function to then draw it up as an authentic instrument. The second sentence allows the drawing-up of an authentic instrument via electronic means (in accordance with regulations issued as decrees by the Conseil d’État) and the third sentence clarifies that notarial authentic instruments are exempt from any further annotation requirements that the law would normally apply to private documents. Article 1370 CC clarifies that an instrument will not be an authentic instrument if: there is a defect in the legal power of the public officer who attempted to draw it up; nor if there is a defect in the public officer’s capacity to act; nor if there is a defect in the form required for the attempted authentic instrument. Instead of being an authentic and public instrument, such an instrument will be of 10 February 2016 translated into English by John Cartwright, Bénédicte Fauvarque-Cosson and Simon Whittaker, translation commissioned by the Direction des affaires civiles et du sceau, Ministère de la Justice, République française, available from: www.textes.justice.gouv.fr/art_pix/ THE-LAW-OF-CONTRACT-2-5-16.pdf.

48  AIs in Domestic French and German Laws classified as a private document that, as per Article 1372 CC, will still potentially be binding on its private parties if they have signed it. Article  1371 CC establishes that the findings and recordings made personally by the public official who drew-up the authentic instrument are evidence of the act(s) it contains unless forgery proceedings are issued against him.63 This newly formulated provision is less emphatic but more precise concerning the nature and strength of the probative/evidential presumption associated with an authentic instrument in French law.64 The first sentence of the forerunner of new Article 1371, old Article 1319, provided, ‘L’acte authentique fait pleine foi de la convention qu’il renferme entre les parties contractantes et leurs héritiers ou ayants cause’ (in English: ‘An authentic act is absolute proof of the agreement it contains between the contracting parties and their heirs or assigns’) (my italics) and thus, read literally, appeared to indicate that the authentic instrument was conclusive evidence of the entire agreement between the parties. This literal reading of old Article 1319 Code Civil was however misleading to the extent that the ‘agreement’/convention in question consisted of more than just its notarially verified essential elements; the notary who drew-up such an authentic instrument would rarely be able to clothe every aspect of an agreement or juridical act with such conclusive authenticity even if he wished to do so. It will be remembered that as a matter of notarial practice, a notary can only confer the authenticity on an instrument allowed by his legal system: in outline form this restriction usually means that a notary can only confer authenticity and its associated evidential benefits on facts that he has witnessed personally and properly verifies and records based on his own knowledge and experiences of the matters before him. A French notary could and can properly and personally verify identities, dates, signatures (etc) and the fact of the making of statements relevant to and required by a given juridical act: he could not however additionally unilaterally determine as a matter of evidence that a person appearing before him was ‘of sound mind’ in a legal sense at that date as required by a transaction; similarly a notary who does not witness a payment being made cannot verify that it was made (or received) merely by relying on a party statement to this effect made by one party to the transaction. If he does not ‘observe’ the payment, the notary cannot confer authenticity upon it. Similar comments may be made concerning the impossibility of a notary placing the legal reality of the existence of a contractual agreement (ie that there is no defect of capacity or other operative ‘error’) or other juridical act beyond doubt on the basis of his recordings in the authentic instrument that the parties who appeared before him made certain statements that the law requires for the creation of the contemplated juridical act. Such 63 Also new Art 1379 clarifies – in a simpler form than under the old equivalent provision – that an authentic copy (or an executory copy intended for enforcement) of authenticated writing is deemed to be ‘a reliable copy’ possessing the same probative/evidentiary force as the original document that the notary will retain in his protocol. 64 Force probante in French.

The Development of Domestic Notarial Authentic Instruments  49 notarial recordings evidence only that the statements were made by the parties, and hence may legitimately form the basis for subsequent actual enforcement as contemplated in the authentic instrument, the court must however be the ultimate arbiter of the actual existence of the seeming juridical act. To correctly understand the ambit of the evidential presumption conferred by old Article 1319 CC it was always necessary to qualify its seeming application with basic caveats concerning: a) ‘simulation’ (ie false or fictitious transactions included in an authentic instrument to attempt to clothe them in its a­ uthenticity);65 and b) the limits of that which a notary could personally verify and record. Despite the elementary nature of these points, it has been periodically necessary for even the highest French courts to restate the limits of the evidential extent of old Article 1319 CC. In a decision from 2005 the Cour de Cassation emphasised the limited nature of the evidence in an authentic instrument that could (then) be regarded as conclusive as a consequence of the notary properly finding, verifying and including facts involved in the matter before him.66 The text of new Article 1371 CC is drafted to attempt to better reflect the practical limitations and the case law concerning the conclusiveness of the probative/ evidential force provided by old Article  1319 CC.67 New Article  1371 CC removes the notional quality of evidential conclusiveness previously enjoyed by all French authentic instruments. The change in wording concerning proof in new Article  1371 CC communicates that the evidential significance of the notarial authentic instrument is now admitted by the legislation to be a document containing written ‘proof in advance’ concerning facts which the notary (or other competent public officer) has properly found and verified before recording them within it: it is suggested that the reformers concluded that sufficient proof/ probative force was conferred on the relevant notarial findings in an authentic instrument if they should be regarded as immediate ‘evidence’, and that there was no need to bolster this concept of evidence further with a confusing quality of conclusiveness that could only endure in relation to aspects of the findings recorded in the authentic instrument or until the authentic instrument or its juridical act were judicially challenged. The 2016 simplification of old Article  1319 CC continues with the deletion of part of the first sentence of the old provision concerning contracting parties, heirs or assigns (all of whom were originally stated to be bound by the evidential 65 Though the internal problems arising from authentic instruments that concern fictitious transactions (or transactions that involve a misrepresentation as to value) are mostly outside the scope of this book, the conclusive proof applied by old Art 1319 CC did not obstruct or prevent these problems from being addressed internally within France: see Cour de Cassation chambre commercial 20 Oct 1958: D 1958 748, and Cour de Cassation chambre civile 1, 4 Mars 1981 Bull. Civ. I, n° 79. 66 See Cour de Cassation, civile, Chambre civile 1, 2 novembre 2005, 03-19.622, Publié au bulletin, Bull. 2005, I, n° 399, 332; in a more recent case the third chamber of this court declined to quash an appeal court that had reached the same conclusion, Cour de Cassation, Chambre civile 3, 10 mars 2016, N° de pourvoi: 14-29.762. For further examples see Code Civil Annoté 2018 117th Ed Dalloz Art 1371. 67 See Étienne Vergès, ‘Droit de la preuve : une réforme en trompe-l’oeil’ La Semaine Juridique Edition Générale n° 17, 27 Avril 2016, 486.

50  AIs in Domestic French and German Laws presumption concerning the authentic instrument). Instead, new Article 1372 CC is allowed to indicate (in much the same manner as did old Article 1322 CC) that a signed instrument of a type that would include, inter alia, an authentic instrument will, by reason of its signature and actual or deemed acknowledgement, constitute proof whether concerning its signatories inter se or concerning their heirs, assigns and successors.68 New Article  1371 CC also modernises the description (but not the consequences) of challenging an authentic instrument by raising an allegation of ‘forgery’; its second sentence clarifies that either a civil or a criminal allegation of forgery will suffice to allow the French court to consider matters of evidence free from the normal evidentiary presumption of advance proof concerning the proper findings and recordings of the notary or other public officer who drewup the authentic instrument. The two sentences of new Article  1371CC thus respectively provide a simpler and more accurate description of the true evidential significance of an authentic instrument (notarial or otherwise) and the civil and criminal consequences of a judicial challenge to its authenticity than did old Article 1319 CC.

i.  Enforcing a Notarial Authentic Instrument in France According to Article 19 of the Ventôse Notarial law of 1803 all (French) authentic instruments have executory force throughout France. This meant that for many years any authentic instrument drawn-up by a French notary which contained a part that could be enforced was, to that extent, therefore automatically enforceable within France. This executory force when coupled with the many circumstances in France in which notarial authentic instruments were employed, and with the restricted options by which a notarial authentic instrument’s probative force could be challenged, meant that many parties to notarial authentic instruments were de facto incapable of challenging any matter that had been so drawn-up: in the probable event that this had been brought to the attention of the parties to the authentic instrument by the notary who drew it up, this was onerous; in other cases if a party was unaware of this probability, it could border on the oppressive. As part of the reforms to civil procedure and notarial practice effected after World War II, a requirement was hence introduced by Décret n° 1047 du 12 Juin 1947 that made the immediate enforceability and actual enforcement of notarial authentic instruments drawn-up from that date forwards conditional on the inclusion of an executory formula (formule exécutoire) in the enforceable copy of that authentic instrument issued by the notary.69 68 Concerning third parties, new Art 1377CC clarifies, inter alia, that the date of execution for an authentic instrument will be the date upon which its substance was declared formally in that authentic instrument. 69 Without such a formula it would be necessary to secure an enforceable title by another permitted means eg via proceedings before a court.

The Development of Domestic Notarial Authentic Instruments  51 A French notarial authentic instrument bearing the prescribed executory formula is the fourth of the enforceable titles specified in Article L. 111-3 of the Code Des Procédures Civiles D’Exécution70 and thus may be enforced in the French legal system, without first requiring a judicial order to confer the status of ‘enforceable title’ on the complying authentic instrument. A notarial authentic instrument bearing an executory formula may be presented a Huissier de Justice who will then proceed to the first stage of actual enforcement/execution by legally ‘attaching’ the relevant assets of the debtor (to prevent the debtor from disposing of them) and will then inform the debtor of this as per the relevant provisions of the Code Des Procédures Civiles D’Exécution.71 The debtor may either allow the execution of the enforceable title or seek to resist this ‘attachment’ by notifying the juge de l’exécution (usually this ‘enforcement judge’ sits in the Tribunal de Grande Instance) that he wishes to oppose the instant forced execution of the notarial authentic instrument. Though the process of opposing the attachment necessary to allow the further operation of the actual enforcement/execution of the notarial authentic instrument is not technically a challenge to the validity (or to the de jure enforceability) of the authentic instrument or its contents, each of which is technically unaffected by this actual enforcement challenge; a debtor who is able to resist execution/ actual enforcement of an ostensibly enforceable authentic instrument in this fashion will, assuming that the defects cannot be remedied to allow a second attempt at enforcement after securing a court order, have de facto if not de jure defeated this attempt to actually enforce that notarial authentic instrument. Equally, if defects in the instrumentum of a notarial authentic instrument of sufficient seriousness should be revealed by a challenge brought at the stage of actual enforcement, it is conceivable that what was previously assumed to be an enforceable authentic instrument will be shown not to be enforceable or even not to be an authentic instrument. The significance of this possibility is that it offers the authentic instrument debtor the option of waiting for enforcement proceedings to begin and then objecting to the actual enforcement during these proceedings before the juge de l’exécution. Though the possibility of resisting the actual enforcement of an authentic instrument is hardly unique in the civil law world – as will be seen below, the German legal system is designed to also allow it – this possibility has been controversial within the French legal system as, by allowing the debtor an alternative means to resist actual enforcement without the need to follow the onerous forgery (inscription de faux) proceedings, detailed below, the effectiveness of the notarial authentic instrument as an enforceable title is arguably undermined. 70 This provision has replaced the law and regulations concerning the execution or actual enforcement of civil matters; see www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000025024948. Art L.111 – 5 makes further legislative provision for the enforcement of, inter alia, notarial authentic instruments in the departments of Moselle, Bas-Rhin and Haut-Rhin. 71 See L Lauvergnat and L Raschel, Code des procedures civiles d’exécution 6th edn (Paris, LexisNexis Paris, 2018).

52  AIs in Domestic French and German Laws The relatively recent development in France of challenging the ostensibly enforceable domestic notarial authentic instrument at the point of its actual enforcement is important: it shows that the French authentic instrument and its procedures are still developing. Such developments concerning the basic principles of law concerning the enforcement of authentic instruments in France arguably pose questions pertinent to the future development of equivalent ‘enforcement challenges’ within the EU’s private international law concerning authentic instruments. The development of the French enforcement challenge is discussed in more detail below after the traditional and more orthodox challenges to the instrumentum and negotium of the French authentic instrument have been considered.

ii.  Challenging an Authentic Instrument in the French Legal System Technically, a challenge to a notarial authentic instrument in the French legal system may occur either in terms of a challenge to its instrumentum or as a challenge to its negotium. As indicated in chapter one, there are two conceptually distinct ways to challenge the legal implications of the instrumentum of a notarial authentic instrument within the legal system in which it was drawn-up or issued. An instrumentum challenge in France may proceed either on the basis that: a) there was a fatal defect in the legal formalities required to draw-up the authentic instrument (eg the French notary was legally incapable of acting as a notary in the given factual context, or the authentic instrument was not signed by one of the parties72 or even was not signed by the notary);73 or, b) that a notarially verified matter properly included in an otherwise properly drawn-up French authentic instrument is incorrect by reason of an act of ‘forgery’. If the first type of instrumentum challenge is established, the supposed authentic instrument will simply be invalid as an authentic instrument and it will default back to the status of a private document (albeit one presumably signed by the parties and hence to be treated as legally and evidentially binding to that extent).74 The second type of instrumentum challenge involves directly or incidentally challenging the authenticity and accuracy of one or more of the notarially verified pieces of evidence contained in the authentic instrument, eg an identity, an age verification (etc) on the basis of an allegation of ‘forgery’.75 If the second 72 See Code Civil Annoté 2018 117th Ed Dalloz Art 1369 notes 8 and 10 with examples. 73 See Code Civil Annoté 2018 117th Ed Dalloz Art 1369 notes 9 and 10 with examples. 74 See Arts 1372–77 New Code Civil. 75 Discussed in the text associated with fns 84 and 85 below in the context of Arts 314–316 CPC and Arts 306–13 CPC.

The Development of Domestic Notarial Authentic Instruments  53 type of instrumentum challenge is made out this may, depending on the extent of the issue and the circumstances, lead either to a judicially ordered correction of the evidential error attributable to the forgery or to the nullification of part or all of the ‘forged’ authentic instrument.76 In contrast with either of the abovementioned instrumentum challenges, a negotium challenge does not inevitably attack the authentic instrument as such but targets the juridical act that the authentic instrument is supposed to contain. A negotium challenge targets the compliance of the alleged juridical act with whatever may be the requirements of its applicable law and in so doing seeks to question its legal validity. Thus if the juridical act at issue purports to be a contractual obligation, the fact that it is recorded in an authentic instrument does not remove the judicial oversight of the existence of the elements required by the applicable law for a valid contractual obligation at the point when the authentic instrument was drawn-up: thus challenges to a contract based on alleged defects in contractual capacity (considered in terms of matters the French notary cannot properly verify, eg actual soundness of mind), mistake, misrepresentation and error may all theoretically be routinely attempted in the course of contentious proceedings without necessarily calling into question the notarial authentic instrument by which the seeming contract is presently assumed to have been concluded. In the circumstance that a challenge to a juridical act concerns a matter that has properly been the subject of notarial verification and recording in an authentic instrument, eg an alleged notarial error as to the age or identity of a contracting party, that challenge must, in the absence of any alternative means of parties or courts circumventing the evidence provided by the notarial authentic instrument (eg by agreeing the point or withdrawing it from the proceedings), proceed via an instrumentum challenge alleging forgery in the course of either direct or incidental forgery proceedings.77 A forgery challenge to the instrumentum of an authentic instrument arises directly if it is the subject matter of an original legal challenge; it arises incidentally if it occurs during other legal proceedings before a court already hearing a matter. An incidental forgery challenge to the instrumentum of a notarial authentic instrument is very likely to cause the staying of the main proceedings until the allegation of instrumentum forgery has been resolved. If a notary made a mistake concerning the age of a purported contracting party and this matter arises incidentally in the course of other legal proceedings, any challenge to the notarial verification of age would require an instrumentum challenge alleging forgery; theoretically this instrumentum challenge would entail a stay of the main proceedings, in practice however the court may be able to circumvent the alleged forgery by deciding 76 See Arts 309–10 CPC. 77 If the issue of forgery arises incidentally under Art 313 CPC before a court which is not a Tribunal de Grande Instance (or a court of appeal) the party alleging forgery must within one month of any stay also serve this plea with the clerk of the Tribunal de Grande Instance; failure to do so will terminate the forgery claim and be deemed to represent an acceptance that the document previously alleged to be forged is in fact valid.

54  AIs in Domestic French and German Laws the case on the basis of other admissible evidence or by ruling only on issues not tainted with the forgery allegation.78 Also, depending on the nature of the procedure invoked, the parties may make various concessions to either avoid the need to resolve undisputed issues with the instrumentum of a notarial authentic instrument (eg the parties agree to use other admissible evidence or not to dispute an error in a verified age) or act to speed a determination of the forgery allegation by not disputing/pursuing it.79

iii.  Challenging the Formal Validity/Instrumentum of an Authentic Instrument in French Law A party to what is alleged to be an authentic instrument drawn-up in France by a French notary may challenge its formal validity (instrumentum) before a French court on the basis of the French notion of ‘forgery’. The French concept of forgery is wider than the common law concept of forgery. The French concept of civil forgery need not indicate that the notary involved has acted with any intent to commit that which the law regards as forgery: he may have been entirely unaware of the ‘inaccuracy’ which is nonetheless wrongly represented as authentic by the authentic instrument he has drawn-up as a public officer while creating a public document. That said, if a French notary does intentionally commit any act of forgery he potentially faces serious criminal, civil and professional investigations each of which may then lead to further penalties. Though the suggested equivalence must not be overstated, it may be better for a common lawyer, accustomed to think of forgery only as a deliberate act requiring intent, to consider the French concept of forgery (in the present context) as exemplifying a spectrum of inaccuracy by a public official somewhat equivalent with the common law’s different gradations of culpability concerning contracts induced by misrepresentation.80 This equivalence is offered to indicate the breadth of the French concept of forgery without minimising its seriousness. That an allegation of civil forgery is not in itself necessarily an indication of an action with knowledge or intent was clarified by the Cour de Cassation in 2016 concerning a civil forgery allegation against a French public official (in this case the public official was a Huissier de Justice) who had drawn-up an authentic instrument which was alleged to be inaccurate and hence forged; the court held that this allegation did not necessarily imply that the official knew of the inaccuracy and further held 78 These freedoms are conferred on either the Tribunal de Grande Instance or on any appeal court by Art 307 CPC. 79 See Art 315 CPC. 80 The English legal system allows three different types of actionable misrepresentation concerning the conclusion of a contract. The false statement of fact which induced the misled party to enter a contract may be a fraudulent misrepresentation, a negligent misrepresentation or an innocent misrepresentation. The classification of the type of misrepresentation affects, inter alia, the remedies that may be claimed if the claim is successful and also affects the consequences as far as the claimant is concerned if the claim should fail; eg only a failed claim of fraudulent misrepresentation may potentially found a later defamation claim.

The Development of Domestic Notarial Authentic Instruments  55 that it did not follow that a civil forgery challenge must be construed as prejudicial to the character of any public official.81 The principles of the instrumentum challenge procedure are broadly common across the francophone and French law influenced parts of the European Union; he who would dispute the formal legal effect of an authentic instrument must follow a special and separate legal procedure to bring that challenge before a specified court.82 In France this challenge procedure is however only applicable to domestic French authentic instruments, ie those authentic instruments properly drawn-up by a French notary in France; it cannot be used in France for a foreign authentic instrument even if it originates from what has historically been regarded as a very similar legal system, eg Belgium.83 The French challenge procedure involving a civil forgery allegation is called ‘inscription de faux’; the claimant, after notifying the public prosecutor of his intention to bring such a proceeding, may subsequently pursue it directly as an independent legal complaint which must commence before a Tribunal de Grande Instance,84 or, if the forgery allegation against the authentic instrument has arisen incidentally, he may follow the incidental procedure before a Tribunal de Grande Instance, an appeal court, or before another civil court.85 Because the inscription de faux is technically treated as a separate legal action and is notionally distinct from any existing legal action which may ‘incidentally’ have caused questions about the authenticity of the authentic instrument to have arisen, this claim not only raises issues concerning the staying of any original legal action (as discussed above), but also raises issues concerning the suspension of the legal effects of the disputed authentic instrument, and the escalation (by reason of case duplication) of legal costs and fees. If there is an incidental forgery claim concerning an authentic instrument, the court seised with the first proceedings will, assuming there to be no way for it to proceed with the first dispute without deciding on the validity of the authentic instrument, stay the original proceedings pending its decision on the instrumentum challenge. The court may also suspend the enforceability of the disputed authentic instrument while any type of inscription de faux claim is being determined. Though in one sense this has never seriously been in doubt, the re-drafting of the second sentence of old Article 1319 CC provided by new Article 1371 CC makes it plainer that the judge may whenever necessary suspend the executory 81 See Code Civil Annoté 2018 117th Ed Dalloz Art 1371 note 11 referring to Cour de Cassation 1st Chamber 25 fevr. 2016 n° 14-23.363: D 2016, 2535 with comments from Bretzner and Aynes. 82 A similar process is required by those legal systems which follow a ‘French’ influenced version of notarial practice, inter alios, Belgium, Luxembourg, parts of Italy, Greece: see GAL Droz, ‘L’activité notariale internationale (Volume 280)’ in Collected Courses of the Hague Academy of International Law. Consulted online at http://dx.doi.org/10.1163/1875-8096_pplrdc_A9789041114877_01, at 112. 83 See P Callé, L’Acte Public En Droit International Privé 1st edn (Paris, Economica, 2004) at paras 624–26, 324–27. 84 See the direct procedure set out by Arts 314–16 CPC. 85 For the Tribunal de Grande Instance and any appeal court the incidental procedure is set out by Arts 306–12 CPC. For any lower court see the incidental procedure as set out by Art 313 CPC. The Cour de Cassation procedure is set out in Arts 1028–31 CPC.

56  AIs in Domestic French and German Laws force of the disputed authentic instrument in connection with forgery claims sounding either in criminal or in civil law.86 Despite such clarifications, the inscription de faux claim is typically associated with high legal costs and court fees as a consequence of the claim being treated as distinct from any other ongoing claims it may affect: thus to pursue such a forgery claim in an incidental manner means that the legal costs and official court fees double by reason of the original litigation now straddling two distinct cases with costs and fees levied accordingly. Even if there is only one direct forgery claim, it must proceed in the relevant Tribunal de Grande Instance, ie an equivalent of the English High Court with costs and fees accordingly. Such instrumentum ­challenges are thus inherently costly to bring even if successful. If however such a forgery claim is unsuccessful, the claimant does not just face the normal costs and fees of bringing that claim; Article 305 CPC states that the claimant who brings a forgery claim and loses it, will be fined (not may be fined) by the court a sum of up to €10,000 for failing in this claim.87 Article 305 CPC explains that this judicial fine is separate from any other damages claims that may additionally be brought against the unsuccessful claimant by other parties affected by his allegation. Lest it be thought that it might be ‘safer’ (in procedural terms) to discontinue any forgery action which appears unlikely to succeed before the court can arrive at a final judgment that the claimant’s case has failed; those who bring a forgery claim, but abandon or settle it, are subject to Article 311 CPC and will be reported to the public prosecutor who can investigate to determine if there is a need for criminal proceedings to be taken against the discontinuing or settling claimant.88 Claims challenging the instrumentum or formal validity of authentic instruments are thus relatively rare in France; the French legal system tries to prevent challenges which unnecessarily call into question the efficacy of its authentic instruments and therefore its system of preventive justice. This systemic discouragement of spurious challenges by the parties is continued, and arguably balanced, by the grievous sanctions which may be imposed upon any civil law notary who deviates from that which his State or professional body deem to be appropriate professional conduct.89 For these reasons, successful judicial challenges to the instrumentum of an authentic instrument are seemingly even rarer.90 86 Previously old Art 1319 CC seemed to suggest that suspension only applied to criminal forgery allegations. 87 Gilbert Tonon v Office Cantonal de la Jeunesse de Tutlingen [1995] I L Pr 23 provides an example of this as it saw the imposition of a fine (FF5,000) for bringing an appeal which the French Cour de Cassation deemed to be ‘abusive’. 88 Art 311 CPC. 89 The notary who breaches these duties potentially commits an act of forgery punishable by criminal sanctions. Equally, a notary may expect to face both serious professional sanctions, including expulsion from the profession, and personal civil liability to those who have suffered losses caused by his breach of duty. 90 In 2004 it was suggested by Casamayor Puigvert, citing Notter, ZBGR 1993, S.90, that in France from some 4.3 million issued authentic instruments, only 0.05  per  cent came before the  courts.

The Development of Domestic Notarial Authentic Instruments  57 If however an instrumentum challenge succeeds, it potentially negatives the public document status of the supposed authentic instrument and thereby deprives it of both its probative force as a public document and its executory force allowing or justifying immediate enforceability as per Article 502 CPC. Depending on the nature of the formal defect alleged, a successful forgery claim will potentially reveal the previously supposed authentic instrument to have always been a mere private document with whatever domestic evidential value such a private document may have had from the date of its creation.91 Any such revelation of private document status is one that would operate with an ab initio effect that may have significant implications arising from the actual and intended uses of a supposedly properly drawn-up authentic instrument. A further and related point, concerning all authentic instruments, is that challenges to authentic instruments are not usually limited by time in the sense that they are only possible until the point at which the authentic instrument has been relied upon or enforced: a challenge to an authentic instrument can, in theory, be brought long after the juridical act it purported to record and evidence via a public document has been relied on even to the extent of erroneous enforcement.

iv.  Challenging the Material Validity of the Underlying Agreement/ Declaration Contained in the Authentic Instrument (the Negotium) before a Domestic Court In the French legal system, a negotium challenge questions the legality of the underlying agreement or declarations that constitute the juridical act which the authentic instrument purports to contain and record. The bringing of a negotium challenge does not necessarily involve a challenge to the formal validity (instrumentum) of the matters verified by the notary. Though it is possible for an ambitious claimant to challenge the instrumentum and the negotium of a given authentic instrument simultaneously, it is rarely necessary or advisable to do so. A negotium challenge differs significantly from an instrumentum challenge not only by reason of targeting different issues but potentially also in relation to the applicable law. It is worth re-emphasising that unlike an instrumentum challenge, which is always concerned with a domestic notary acting entirely within the domestic law of the legal system in which the authentic instrument was drawn-up, a negotium challenge to the

This  figure would amount to roughly 2,150. She claims that the rate of challenge is similar in Germany. E  Casamayor Puigvert, Die notarielle Urkunde und die Naturalexekution (Ph.D Thesis, Universität Bremen, 13 Jan 2004) 17 and 225. Available from http://deposit.d-nb.de/cgi-bin/ dokserv?idn=979701414&dok_var=d1&dok_ext=pdf&filename=979701414.pdf. Arguably the development of challenging actual enforcement of domestic authentic instruments in France at the point of actual enforcement should also be considered. 91 Since the 2016 reform of the Code Civil this evidential effect may, if the private document is signed by its private parties, be pretty much equivalent to the document in public form, albeit without the option of immediate enforcement: see new Arts 1364 and 1367 CC.

58  AIs in Domestic French and German Laws agreement or declarations forming the juridical act in question may conceivably involve the application of any other laws determined to be applicable by the operation of the conflict of laws principles of the lex fori. If a negotium challenge succeeds it will typically reveal a defect in the legal validity of the attempted juridical act which otherwise purported to demonstrate a contractual agreement or a legal declaration. If the juridical act is revealed to be legally invalid it follows that this must affect the subsequent ability of any person to rely on the authentic instrument whether to evidence a matter or to seek to enforce it via domestic execution procedures: further, if such execution has already been granted against the supposed debtor a successful negotium challenge may, depending on the circumstances, require or allow restitution from the supposed creditor in favour of the challenger. Though it may be difficult to imagine that any system of law would normally require the entire restitution by the creditor of a sum extracted from the debtor by enforcing an authentic instrument that a later negotium challenge reveals to be based on an invalid juridical act (ie an invalid debt obligation), there are in fact a range of abnormal circumstances in which such an outcome could indeed result. The abnormal circumstances in question concern attempts by the parties to illicitly use the authentic instrument to misrepresent or to conceal matters, often related to taxation, from the State and also from the notary as a public officer of that State.92 The parties may conspire to use an authentic instrument to undervalue a transaction on which ad valorem taxation is due, or to set up a sham loan transaction to allow a capital transfer which is falsely represented to be associated with a loan rather than a gift made with no intent of re-payment. Even if the fact of the purported loan is real, it may be that the parties wish to use the authentic instrument to circumvent aspects of the legal regulation of such loans which the law either regulates differently or flatly forbids (eg restrictions on the sums to be lent or statutory controls over interest rates).93 Equally, it may be that the parties attempt to render enforceable those agreements that the law, for reasons of policy, will not enforce, eg the perennial example of a contract for gambling debts. Despite the abovementioned observations concerning abnormal transactions, it should not be assumed that a negotium challenge is necessarily a simple one to bring successfully. Though a negotium challenge does not require the following of a special procedure as potentially hazardous as the instrumentum’s inscription de faux procedure, it does require the demonstration of a defect in the juridical act purportedly included in the authentic instrument. This demonstration is, very properly, likely to be complicated by the involvement of the notary who

92 Though common human failings may afflict a notary just as any other public officer or lawyer, it would be most unusual for a notary to be willing to risk his career and liberty to knowingly facilitate such a plan. Even a suspicion of such illicit intentions by the parties would tend to lead to the notary refusing to act. 93 Aspects of such transactions are discussed in Part II in connection with the operation of the public policy exemptions of the different EU Regulations.

The Development of Domestic Notarial Authentic Instruments  59 presumably will have acted as an impartial legal advisor in the drawing-up of the authentic instrument to avoid such defects. It will be recalled from chapter one that before the authentic instrument is drawn-up, the notary will already have advised each party on the law and legal implications of the proposed course of action; that he will have proffered (and will re-proffer) this advice in an impartial manner aiming towards validity and ensuring that he has been understood and that the party or parties still wish to so proceed. As part of this process the notary will also routinely consider the legal efficacy of the proposed juridical act in the places in which he is aware it must be used and advise the parties accordingly. After the notary completes these steps and other domestically required checks, the necessary documentation will be drafted and re-checked by the notary to ensure that it includes the exact declarations which each party must make to allow the creation of the juridical act in question (ie for a contractual arrangement, an ‘offer’ and an ‘acceptance’ plus appropriate consents to immediate enforcement). On the day appointed for the drawing-up of the authentic instrument, the notary will usually explain again to all of the parties (or their appointed representatives) in each other’s joint presence the legal issues and implications of the intended juridical act.94 He will read it aloud to them all again in each other’s presence, before inviting them all to signify their consent to the proposed course of action and juridical act by each signing the document before him: the notary then will finally draw-up the authentic instrument by making the required verifications and declarations before signing the document himself and applying his notarial seal to it. Assuming the notary to have been thorough and competent in performing his professional services, the manner of the creation of the juridical act and of the drawing-up of the authentic instrument will each act to reduce, if not necessarily to eliminate the potential bases upon which a party could claim that the juridical act in its negotium was invalid as a matter of law. At present it is not necessary to offer any further insights as to the potential negotium challenge in the French legal system and so the consideration will now turn to the recent development of a domestic challenge to the actual enforcement of a French authentic instrument during this enforcement.

v.  Challenging the Actual Enforcement of the French Notarial Authentic Instrument before the French Domestic Enforcement Court As indicated above, it is only since 2009 that the possibility of bringing such a challenge during the actual enforcement of an ostensibly enforceable copy of a French notarial authentic instrument (ie one featuring an executory formula) has been 94 It is of course possible that one of the parties will have appointed a representative to act for him as a proxy; if this is the case that party will be legally present but not personally present at the drawing-up. There are further situations in which only one side of a given juridical act will usually be present, eg if a matter is being prepared for the benefit of an official register.

60  AIs in Domestic French and German Laws unambiguously allowed in the French legal system.95 Since this time there have been a range of important cases concerning this ‘unorthodox’ and passive manner of indirectly resisting the enforceability of a domestic French notarial authentic instrument. By an advisory opinion issued in 1995 the Cour de Cassation had initially indicated that it was not possible to dispute the validity of a notarial authentic instrument during actual enforcement proceedings conducted before the juge de l’exécution: it held that the enforcement judge could not rule on the invalidity of an undertaking in an ostensibly enforceable notarial authentic instrument on the basis that the debtor opposing enforcement alleged that one of the conditions required by law for its formation was absent. Thus, in the instant case, the enforcement judge was held not to be competent to hear (still less to rule on) the allegation by the debtor that at the relevant time the debtor had been ‘insane’ so as to affect his involvement in the undertaking and in the authentic instrument which the creditor bank now sought to enforce as an enforceable title via the compulsory execution procedure.96 In this advisory opinion the Cour de Cassation explained that in principle the enforcement judge could not hear applications that sought to call into question the enforceable title; further he could not hear applications directed to the validity of the rights and obligations of such an enforceable title. In many ways this decision was surprising, but particularly because it so restricted the wide and express exclusive competence explicitly conferred upon the juge de l’exécution by the relevant provision of the Code de l’organisation judiciaire, without any clear legislative basis being cited by the court to justify this outcome.97 This textually unfounded advisory opinion from 1995 was eventually re-examined by the Second Chamber of the Cour de Cassation in an application for cassation in 2009 concerning a dispute in which the debtor sought to reverse an enforcement attachment made pursuant to an application by the creditor bank on the basis of the invalidity of the notarial authentic instrument that ostensibly allowed the bank to exercise this quasi-‘security’ right against him.98 This time however the Cour de Cassation quashed the earlier decision of the Cour d’appel, which had applied the opinion of the earlier 1995 Cour de Cassation to hold that such an application going to the validity of the formation of the 95 See discussion above concerning the actual enforcement of a French notarial authentic instrument. 96 Cour de Cassation saisie pour avis, N°9 du 16 juin 1995, 09-50.008. Discussed by P Hoonakker, Procédures civiles d’exécution 7th edn (Brussels, Bruylant, 2018) paras 156–58 and 161 with further references. 97 The first line of Art L 213-6 of the Code de l’organisation judiciaire reads ‘Le juge de l’exécution connaît, de manière exclusive, des difficultés relatives aux titres exécutoires et des contestations qui s’élèvent à l’occasion de l’exécution forcée, même si elles portent sur le fond du droit à moins qu’elles n’échappent à la compétence des juridictions de l’ordre judiciaire’: www.legifrance.gouv.fr/affichCode. do?cidTexte=LEGITEXT000006071164&dateTexte=20180323. 98 Cour de cassation, civile, Chambre civile 2, 18 juin 2009, 08-10.843, www.legifrance.gouv.fr/ affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000020768187&fastReqId=119793807 6&fastPos=1.

The Development of Domestic Notarial Authentic Instruments  61 authentic instrument could not be entertained by the juge de l’exécution: the Second Chamber then explained that the juge de l’exécution was competent to consider such matters when presented with an application from the debtor of an authentic instrument who sought to dispute the executory attachment of his assets as a preliminary step in the process of actual enforcement. The legal basis for this competence of the juge de l’exécution was his empowerment by Article L 213-6 of the Code de l’organisation judiciaire to consider and rule on all matters, including matters of substance, justiciable by the courts, if raised in the course of actual enforcement procedures.99 It is from this 2009 foundation that the indirect French challenge to the actual enforcement of a notarial authentic instrument during a hearing before the juge de l’exécution has since developed to allow the debtor to oppose the execution of a notarial authentic instrument.100 This method of opposition is necessarily a restricted one: it depends upon there being an enforceable domestic notarial authentic instrument which is presented for actual enforcement which the debtor then opposes in such a fashion as to allow the application of Article L 213-6 of the Code de l’organisation judiciaire. If there is no presentation of an ostensibly enforceable domestic notarial authentic instrument by the creditor, or if the notarial authentic instrument has already been executed/actually enforced, the debtor’s challenge cannot proceed in this manner. If however the creditor presents an ostensibly enforceable notarial authentic instrument for enforcement and the debtor seeks to oppose this, then, according to a series of decisions by the second chamber of the Cour de Cassation, it is not only proper for but also required of the enforcement judge to consider and, if necessary, to rule on the formal validity and the material validity of the notarial authentic instrument, and agreements or undertakings within it, if the debtor raises such issues in the course of actual enforcement proceedings brought to oppose the execution requested by the creditor.101 As may be expected, this enforcement challenge is very dependent on the facts that the debtor can bring to the attention of the juge de l’exécution in the course of the application to resist the actual enforcement by overturning the attachment of his assets. Equally, it is not the case that merely because the debtor can demonstrate the existence of a legal defect in an ostensibly enforceable notarial authentic instrument, the enforcement judge must therefore decide that the defect is fatal to the authentic instrument or to its enforceability. The question will depend upon the nature of the defect and its effect on the enforceable title.

99 See Hoonakker (n 96) 110 citing academic comment on this case. 100 See Cour de cassation, civile, Chambre civile 2, 31 janvier 2013, 11-26.992 quashing the earlier restrictive decision of the Cour d’appel Paris and even fining – in accordance with his powers – the bank €2,500. 101 See Lauvergnat and Raschel (n 71) 790–91 discussing, inter alia, Cass. 2 Ch civ 25 févr. 2010 N° 09-13.909; Cass. 2 Ch civ 5 déc. 2013 N° 12-27.939; Cass. 2 Ch civ 30 janv. 2014 N° 12-29.689 and Cass. 2 Ch civ 5 juin. 2014 N° 2013-16.053.

62  AIs in Domestic French and German Laws The law concerning the French enforcement stage challenge is in the process of emerging and the jurisprudence it has generated is still somewhat fluid. Thus during 2012 in the course of a multitude of cases, brought in the aftermath of the global financial crisis to facilitate or oppose the enforcement of notarial authentic instruments concerning land purchases, a significant difference of opinion emerged between the first and second chambers of the Cour de Cassation concerning the legal consequences for actual enforcement of the notary failing to comply with the technical legal requirement to append a p­ rocuration102 to any authentic instrument that he drew-up which required such a thing (or alternatively to refer to the existence of the procuration and the fact of its deposit in his notarial minute).103 A procuration is similar to (and may in some circumstances in fact be) a power of attorney. In the present context it is granted by one party to the contemplated authentic instrument to allow another person to act as a proxy in his name and on his behalf in the drawing-up of the authentic instrument by which he – the first party – will then be bound as if he had been present and had personally participated in the events. In many of the cases discussed below, the proxy for the debtor appointed by the procuration was a clerk or other employee of the notary who had drawn-up the authentic instrument. Various debtors attempted to resist the actual enforcement of the authentic instruments, as sought by the creditor banks who wished to enforce the ‘security’ they had been granted by the debtors as a condition of advancing mortgage loans (now in default) to finance the debtors’ purchase of real property: in five applications concerning variations on the failure by the notary to append or refer to the procuration, the second chamber of the Cour de Cassation ruled, in agreement with the suggested reasoning of certain lower courts and other commentators,104 that a notarial authentic instrument that did not comply with the requirement of appending or referring to a procuration granted by the debtor to the office clerk of the notary who drew-up the authentic instrument should lose its authenticity and hence its inherent immediate enforceability as an authentic instrument for failing to comply with mandatory legal requirements.105 Though the practice of appointing an office clerk of the notary as a proxy may surprise common lawyers and civil lawyers alike, the outcome of these cases was still surprising. Though the décret in question did (and does) sanction certain breaches of its requirements with nullity, this sanction had never been applied to a

102 A ‘procuration’ is similar to (and may in some circumstances in fact be) a power of attorney. It is granted by one person to allow another person, in many of these cases a clerk in the office of the notary, to act in his name and on his behalf, eg in relation to the drawing-up of an authentic instrument by which he – the first person – will be bound. 103 See Arts  21 and 22 du décret n° 71-941 du 26 novembre 1971 relatif aux actes établis par les notaires. 104 See P Delebecque, ‘L’acte authentique imparfait. – Observations sur le défaut d’annexion de procurations dans un acte notarié’ La Semaine Juridique Edition Générale n° 9, 27 Février 2012, doctr. 263. 105 See Cass. civ. 2, 7 juin 2012, n° 11-17.759; Cass. civ. 2, 7 juin 2012, n° 11-15.112; Cass. civ. 2, 7 juin 2012, n° 11-15.440; Cass. civ. 2, 7 juin 2012, n° 11-16.107; and, Cass. civ. 2, 7 juin 2012, n° 11-15.439.

The Development of Domestic Notarial Authentic Instruments  63 breach of the obligation to append or refer a procuration.106 It was hence surprising that non-compliance with the requirement of appending the procuration should be treated as so serious a formal defect under Article 1318 old Code Civil (new Article  1370 Code Civil) that the loss of authenticity for the notarial authentic instruments should result to remove their enforceability as titles which the creditors could present to request their immediate actual enforcement.107 The reasoning of the second chamber was all the more surprising as it did not follow the reasoning of the first chamber which only a few months earlier had also encountered a similar case and had also ruled on the nature of the legal implications for subsequent actual enforcement arising from a failure by the notary to append or refer to a procuration in the enforceable copy of an authentic instrument that they had drawn-up. This earlier first chamber decision of 22 March 2012 had ruled that the notary’s failure to append or refer to a procuration in the authentic instrument (or in the enforceable copy of that instrument) did not lead to the nullity of the authentic instrument as an enforceable title: indeed the first chamber had held that the Cour d’Appel of Lyon had been wrong to confirm the sanction of nullity on the enforceable notarial authentic instrument (as applied by the juge de l’exécution) and had therefore ordered that those two earlier decisions be quashed.108 Given such a fundamental difference between different chambers of the Cour de Cassation on a matter of legal, political and economic significance it was decided to convene a Chambre mixte to allow a resolution of the different opinions. It was decided by the combined judges of the different chambers that the failure of the notary to append or refer to a procuration did not cause the authentic instrument to lose its authentic character (either under the provisions of the relevant décret or via Article 1318 old Code Civil) and, consequently, that such a notarial omission did not deprive the resulting notarial authentic instrument of its status as an enforceable title allowing it to be used as such in actual enforcement proceedings.109 These proceedings were only possible as a consequence of the 2009 decision by the second chamber of the Cour de Cassation allowing the debtor under an 106 Art 41 of the décret does apply the sanction of invalidity concerning breaches of certain other provisions eg Art 2 (which have been subsequently deemed by the Cour de Cassation to lead to invalidity of the notarial authentic instrument as an enforceable title – see Cass. (1 ch) civ., 31 oct. 2012, n° 11-25.789) but it does not include the failure to append/refer to procurations within the Art 41 sanction. 107 See critical comment by M Mekki, L’acte authentique, la copie exécutoire et le défaut d’annexion des procurations (Paris, Recueil Dalloz, 2012) 1789; also criticism Note sous arrêt par Gaëlle Deharo ‘Sanction de l’acte authentique imparfait : le titre ne perd pas son caractère exécutoire’ La Semaine Juridique Edition Générale n° 6, 4 Février 2013, 141. 108 Cass. 1st civ., March 22, 2012, n° 11-11.925 note La Semaine Juridique Edition Générale n° 14, 2 Avril 2012, 401. 109 See Arrêt n° 273 du 21 décembre 2012 (11-28.688) – Cour de cassation – Chambre Mixte – ECLI:FR:CCASS:2012:MI00273 and Arrêt n° 274 du 21 décembre 2012 (12.15.063) – Cour de cassation – Chambre Mixte – ECLI:FR:CCASS:2012:MI00274 both via www.courdecassation.fr/jurisprudence_2/chambres_mixtes_2740/arrets_n_25056.html.

64  AIs in Domestic French and German Laws ostensibly enforceable notarial authentic instrument to respond to his notification of the attachment of his assets preliminary to execution/actual enforcement by applying to the juge de l’exécution to oppose this enforcement: such an application contesting actual enforcement now exists and is being developed by domestic case law alongside the challenges to the instrumentum and the negotium of French notarial authentic instruments in France. In closing this examination of the operation of notarial authentic instruments in the French legal system it is suggested that the main point to notice is that the legal institution of the authentic instrument is not static; it is developing in response to the development and adjustment of the legal system in which it is found. It is suggested that this has implications for the EU private international law of authentic instruments as it indicates only that there are differences from one legal system to another but further that such differences are not merely historical, but are also a product of present development of the legal institution of the authentic instrument in domestic laws.

B.  The Development of Authentic Instruments in the German Legal System The modern German legal system is usually understood to have been established with the coming into force of the Burgerliches Gesetzbuch (BGB) in 1900 nearly 30 years after the unification of Germany in 1871; as will be seen, the position concerning authentic instruments is more complex. As in the example of France, the modern German legal system also has a range of uses for public documents, including authentic instruments, issued by its official bodies, eg courts, or drawnup by public officers such as its notaries. It has already been indicated that the office of notary in what is now called Germany is much older than either its 1900 codification of German civil law or even its 1871 unification; it would be too complicated to attempt to chart the development of notarial activities and the emergence of a recognisably Germanic Notariat across what we now call Germany prior to and even during the nineteenth century.110 The reader must thus be content with the following overview of major items and events that are deemed to represent points of navigational utility in the eventual emergence of the different German notarial professions and their authentic instruments with footnote references to the more detailed literature on this topic. The development of the different types of German notaries111 who do comprise (and have comprised) the German notarial professions (or notariat) 110 See however W Schubert in Schmoeckel (n 1) who provides an overview from 203–38. Much more detail is provided by the various authors contributing to Schmoeckel and Schubert (n 1). 111 Until 2017 there were four types of notary in Germany, the first two below still exist: 1) the hauptberufliche Notar or Nurnotar – closest to the French idea of a notary and originally associated with French influenced parts of Germany – he only (hence ‘nur’) practises as a notary and is thus

The Development of Domestic Notarial Authentic Instruments  65 and the development of the enforceable authentic instrument in Germany are each more complicated than the equivalent developments in France. The main complicating factors arise from the more fragmented nature of what we now call Germany, as ‘organised’ until 1806 under the auspices of the Holy Roman Empire and later in 1815 into the 38 Germanic States distinguished by the Congress of Vienna. If compared to France, first organised under its Kings and then in the wake of the Revolution by Napoleon, Germany, whether considered in terms of territory politics or law, was far more complex and has also been far more prone than France to long periods of fragmentation and coalescence since the eighteenth century until the late twentieth century. These tendencies have had a particular relevance for the different German notarial professions and for their notarial instruments.112 Originally in Germanic territories notaries could only be appointed by the Pope, however the Holy Roman Emperor soon emulated this position and from AD 803 ordered and allowed his lesser nobles to do likewise. Though the earliest notarial activities in what we now call Germany appear to have been by predominantly ecclesiastical notaries following the Italian model,113 the office of notary in Germany would later be radically, and sometimes scandalously, expanded by nobles who, as well as appreciating the administrative advantages of having their own notaries, also saw the financial advantages of receiving a fee to admit additional persons to the office of notary. At times this proliferation of notarial appointments led to the admission of many who, in common with other so-called and self-styled ‘lawyers’ during this period, possessed the requisite fee, but only the barest of competence judged in terms of knowledge of law, notarial practice or even literacy.114 That there were eventually also very good medieval and renaissance notaries in parts of Germany and elsewhere is not disputed, but it must be accepted that such loud and repeated calls to regulate impartial in all circumstances; 2) the Anwaltsnotar – originally associated with Prussian ideas concerning legal and notarial practice – as well as impartial notarial work he also works as a lawyer/solicitor for a given client (hence he is not ‘neutral’ when acting in the second non-notarial capacity); plus the two now abolished ‘sub-species’ of civil servant notary – Amtsnotare and Bezirksnotare – that were only found in the Land of Baden-Württemberg. With effect from the end of 2017 the Amtsnotare and Bezirksnotare were abolished and existing members of these two professions had to elect whether to stay as civil servants (but no longer as notaries) or to leave the civil service and to continue as notaries: see www.notariatsreform.de/pb/,Lde/Startseite. 112 Reasons of space prevent any discussion of the consequences for notaries or their authentic instruments following either the division of Germany after the Second World War or the re-unification of Germany in 1990: see Wolfsteiner (n 14) paras 2.9–2.10, 9 with references, see E Koch, ‘Das Notariat in der DDR’ in Schmoeckel and Schubert (n 1) 191 ff and also in the same work, O Vassius, ‘Das Notariat in der Bundesrepublik und im wiedervereinigten Deutschland’, 213 ff. 113 See Schubert (n 110) concerning notarial activities in the eleventh and twelfth centuries at 203–04. 114 See H Grziwotz, Kaiserliche Notariatsordnung von 1512 1st edn (Munich, CH Beck, 1995) which contains the original regulation, a modernised translated version of the same and an essay in German, French, Spanish, Italian and English, 205–19; also containing a coruscating and astounding catalogue of notarial incompetence and bad behaviour leading up to the 1512 provision, 228–31. Schubert offers a brief overview of thirteenth and fourteenth century indications of notarial activity in parts of Germany before summarising the provisions of the 1512 law, see Schubert (n 110) 204–07.

66  AIs in Domestic French and German Laws professions as were heard in this context are rarely a consequence of a surfeit of excellence. The case for Imperial reform of notaries in the German Empire115 eventually became overwhelming. Reform was intended to end many astonishing, disreputable and deplorable notarial practices and this was ordered by the Imperial Diet held at Freiburg in 1498. The Edict that this order would however have required was never issued; instead at the Imperial Diet at Cologne in 1512 Emperor Maximillian I issued the Kaiserliche Notariatsordnung which the Imperial peers approved but did not formally sign.116 This was the first attempt to introduce an Imperial provision setting out the basic minimum of regulation for the notaries that had previously, and unsatisfactorily, been subject to a Gordian tangle of different regional laws and customary practices throughout ‘Germany’.117 Grziwotz has explained that this outline regulation sought to ‘pour’ the generally accepted ‘ars notariae’ – as set out by standard texts on notarial practice issued since 1256 – into what he calls ‘a legalistic mould’.118 In this respect the 1512 Notariatsordnung was successful at introducing a basic Imperial description of notarial practice and a minimal legal regulation of notaries throughout the German realm; it was not however intended to be the last word on either matter and thus it allowed for the possibility that Imperial, customary and local laws concerning the competence and standards of the notary in Germany might develop or supplement its provisions.119 The 1512 Notariatsordnung deals briefly with aspects of what we now call notarial authentic instruments and the requirements for their authenticity in its preamble (‘… trustworthy public documents …’) and then again in its third and fourth paragraphs which concern, respectively, the formality of a notarial instrument and the need to observe the customs of the place (as well as dating notarial documents by noting the name of the emperor or king and the year of his reign): it does not however state explicitly the point that it assumes, ie that a properly drawn-up notarial authentic instrument is authentic proof of that which is properly notarially verified within it.120 Grziwotz argues that the omission of 115 Similar calls for reform were common across other countries in Europe too, see K Burns, ‘Notaries Truth and Consequences’ (2005) American Historical Review 350 concerning the disreputable reputation of elements of the ‘spanish’ profession in literature and in practice at 353–54, and, concerning attempted reforms in 1503 in Castile, in Spain, and concerning attempts in 1522 to prevent the export of bad practices to Spanish Latin America at 358–61. 116 Grziwotz (n 114) 231. 117 Grziwotz (n 114) discussing earlier attempts at intervention discussed at the Imperial Diet of Landau in 1497 (also discussed at 226) and the Imperial Diet of Freiburg in 1498. 118 Grziwotz (n 114) 233. 119 Subsequent imperial provisions concerning an examination for notaries established in 1725 are discussed, with references, in Grziwotz (n 114) 230. The 1725 examination was deemed necessary by Emperor Karl IV, ‘some notarii have so little knowledge of their art, that they are unable to draw up and create any formal statement, contract, will, or any other legal enactment in the way it should be done’. Grziwotz, ibid, 230 fn 69 quoting Schimkowski, Handbuch zur neuen österreichischen Notariatsordnung (1871) 61. 120 See para 6 requirements for certification at 207 and para 10 the will of the parties and legal assumptions at 208 of Grziwotz (n 114).

The Development of Domestic Notarial Authentic Instruments  67 such an explicit provision is consistent with the limited intended function of the Notariatsordnung and provides references to support the convincing argument that as far as the probative force or authenticity of a properly drawn-up notarial authentic instrument was concerned, by 1512 the provisions had no need to state something that was commonplace within the Holy Roman Empire, viz, that an authentic instrument drawn up by a notary was presumed to have the full probative force of a public document on the matters that the notary had and could properly personally verify when that document was produced in legal proceedings or before a court.121 Indeed, Schubert has dated the emergence of the authenticity and probative force of a duly signed and sealed ‘German’ notarial authentic instrument, as an ‘instrumentum publicum’, to the course of the twelfth century AD.122 Though it seems plausible that the 1512 Notariatsordnung is properly read to indicate that it presumes that already well-established concepts of authenticity and probative force would attach to properly drawn-up Germanic notarial authentic instruments, there can be no equivalent conclusion concerning executory force at that point in time. The absence of even an elliptical reference to the potential for the intrinsic enforceability of a Germanic notarial authentic instrument is a consequence of the fact that the Notariatsordnung was directed to the politically tricky matter of imperially regulating the conduct of an office that was created by a cascade of different nobles across a large and divided set of territories in which no such enforceability (independent of a court or magistrate) existed at that time: to have attempted to introduce intrinsic enforceability for notarial instruments in 1512 in such a provision would have been an act of utmost folly. The 1512 Notariatsordnung is therefore silent on executory force and indeed the introduction of an executory force for notarial authentic instruments in what we now call Germany is something that was only introduced in stages in parts of given Länder beginning with the Napoleonic annexation of the west of the Rhine in 1796. Napoleon’s annexation of Germany west of the Rhine meant that French law applied within that territory, including the nascent 1796 reform of the French law concerning notaries and their authentic instruments.123 In 1798 a ‘German’ order established a Notariat in the territories of the French annexations and thereby reformed the possibilities for notarial authentic instruments in those annexed regions of Germany. The 1798 reform followed established French notarial principles and thus not only confirmed the inherent authenticity of the notarial authentic instrument but also its inherent executory force. In due course the French law concerning notaries and authentic instruments from the 1803 Ventôse Act on notaries was also incorporated into the new notarial law applied in the parts of Germany which were then subject to French law. 121 Grziwotz (n 114) 240–41 with references. 122 See Schubert (n 110) 204, also noting that it was not until the fourteenth century that such documents were appearing written in German. 123 Discussed in outline by Schubert (n 110) 211–16.

68  AIs in Domestic French and German Laws For the other parts of Germany, the route to executory force for notarial authentic instruments was less immediate.124 The matter of introducing executory force for notarial authentic instruments in Länder east of the Rhine first arose in Bavaria in 1851 and quickly led to a debate concerning the conditions for the operation of any such executory force.125 The main point of controversy was whether executory force should, after the French fashion, be deemed inherent in the authentic instrument itself or should require the inclusion of an express clause indicating that the parties to the authentic instrument had submitted to such an immediate executory possibility. The Bavarian legislation oscillated between the two possibilities during the 1850s until it was resolved in 1861 that the French approach was preferable.126 An opposite conclusion was however reached by both the Hanoverians and the Wurttembergers; each of whom opted in their own newly drafted civil procedure codes (Article  528 of 1853 and Article  903 of 1868 respectively) not to follow the French model and instead to predicate the possibility of a notarial authentic instrument having executory force in their respective legal systems upon the inclusion within it of an express ‘submission to immediate execution’ clause (ie a Vollstreckungsklausel).127 The requirements for the enforceability of Germanic notarial authentic instruments in what from 1871 had become Germany was thus an issue that continued to vary from one Land to another.128 This variability included the differences between the Länder who did and did not follow the French approach, but extended beyond this issue into questions concerning the nature of the executory force of a notarial authentic instrument, eg there were significant divergences concerning what could be enforced via an enforceable notarial authentic instrument. At the risk of oversimplification, the French influenced areas of Germany tended to allow the enforceability of a wider range of performance obligations than just those concerning money payments; the other areas of Germany tended to be more restrictive of the enforceability that could flow from a notarial authentic instrument and often did limit this to the satisfaction of money payment obligations. These issues were amongst those that the Imperial harmonisation of civil procedure law sought to resolve via the introduction in 1877 of the Reichscivilprozeßordnung (CPO – Imperial Civil Procedure code)129 that, albeit 124 For an overview see Schubert (n 110) 216–22; for detail see the numerous contributions to Part II ‘Das Notariat in den Territorien’ in Schmoeckel and Schubert (n 1). 125 See Wolfsteiner (n 14) para 2.5, 7. 126 See Bayerische Notariatsgesetz of 10.11.1861 and Art 822 of the Bayerische Civilprozeßordnung of 1869 as discussed by J Kohler, ‘Über executorische Urkunden’ in Archiv für die civilistische Praxis – N.F. 22.1888 = 72.1888 p 8ff available from www.digizeitschriften.de/kontakt/kontakt/ and also in Wolfsteiner (n 14) para 2.5, 7–8. 127 For discussion and extracts see Kohler (n 126) 7, fn 7 and 8; and Wolfsteiner (n 14) para 2.5, 8. 128 Wolfsteiner (n 14) at para 2.7, 9 records the simply astonishing fact that until 1937 Land Oldenberg knew nothing of enforceable notarial authentic instruments: until that time the only enforceable provisions were those that came from a court. 129 Wolfsteiner (n 14) at para 2.6, 8, provides outline details on § 702 No 5 of the Reichscivilprozeßordnung (CPO) of 30.1.1877, RGBl. s 83.

The Development of Domestic Notarial Authentic Instruments  69 in significantly amended form as the Zivilprozessordnung (ZPO), continues to lay down common procedural rules for, inter alia, the enforcement of domestic notarial authentic instruments in Germany.130 The original imperial legislation left the manner in which the authentic instrument was to be drawn-up to the laws of the individual Land131 but set a single common procedure whereby all German authentic instruments could be enforced in Germany if they included a Vollstreckungsklausel. From this point, if the authentic instrument was not drawn-up with a Vollstreckungsklausel it was not intrinsically enforceable within Germany under the new civil procedure rules, even if it had been drawn-up in a Land following the French approach to enforceability. The creditor of a notarial authentic instrument that lacked a Vollstreckungsklausel would therefore have to commence court proceedings to try to secure an enforceable title in the form of a judgment to enforce any obligations it evidenced. The Imperial CPO effected further procedural harmonisation between the enforcement possibilities for enforceable notarial authentic instruments in the different Länder by originally restricting such enforcement to obligations concerning the payment of a sum of money: subsequently this restriction would be varied by different legislative provisions to accommodate wider forms of enforcement that might need to flow from notarial authentic instruments concerning what may loosely be called mortgages (Hypotheken) and other types of charges registered and secured on land (Grundschulden etc); such ‘secured’ transactions would lack true enforceability if only claims for money sums could be enforced in the event of debtor’s default of payment.132 Once the enforcement provisions of the Imperial CPO were joined by the provisions of the substantive civil law of the Bürgerliche Gesetzbuch (BGB) of 18 August 1896 (in force as of 1 January 1900) the basic architecture of the modern law concerning the probative and executory force of a German notarial authentic instrument was established on a mostly harmonised federal basis throughout Germany. Over time further legislative provisions would establish federal laws concerning notaries and notarial documents. Thus German notaries are now subject to federal regulation via what is currently the Bundesnotarordnung of 1961(BNotO),133 their notarial documents (including authentic instruments) must be produced to comply with the Beurkundungsgesetz of 1969 (BeurkG) and their costs are also regulated by federal laws of which the latest is the Gerichtsund Notarkostengesetz of 2013 (GNotKG).134 Such federal legal provisions exist 130 Thus the current German civil procedure code, the Zivilprozessordnung (ZPO), is the original Imperial CPO but in a significantly amended form; new provisions are sometimes introduced by Novellae and at certain times of national significance there has been a bigger re-draft and re-publication. 131 The matter is now regulated by the Beurkundungsgesetz. 132 See Wolfsteiner (n 14) para 2.7, 8. For a survey of these developments see L van Vliet, ‘The German Grundschuld’ (2012) 16(2) Edinburgh Law Review 147–77. 133 Replacing and updating the 1937 Reichsnotarordnung of 13/02/1937. 134 Bundesnotarordnung of 1961(BNotO); Beurkundungsgesetz of 1969 (BeurkG); and Gerichts- und Notarkostengesetz of 2013 (GNotKG) are all available from www.gesetze-im-internet.de/aktuell.html.

70  AIs in Domestic French and German Laws alongside the regional laws of the Länder which provide further details concerning specific regional variations in notarial practice for given types of notary allowed to practise in any given Länder.135

i.  When is it Necessary to Consult a German Notary? The German legal system requires the involvement of a notary and the production of a notarial authentic instrument for the validity of certain types of legal transaction. This is usually for the reason that the transaction is an important one for which the party or parties should have the full and impartial advice that a notary is professionally obliged to provide.136 Authentic instruments are also commonly required by official registries if the official register is to be amended to reflect any given juridical act or alteration of circumstance: the reason for this is to ensure the production of the best evidence concerning the transaction at issue.137 If a notarial authentic instrument is produced to an official registry it may be content that the notary will have verified the identities of the parties and have advised them fully and impartially on the nature of that which was contemplated before the matters that it evidences were then effected; such de facto requirements for registerable transactions to proceed via notarial authentic instrument help to maintain the integrity of various German public registers. For reasons of space it is not possible to consider all of the circumstances for which authentic instruments are required across the breadth of German civil law; even if such a survey is confined to the BGB the resulting list is already long. Within the BGB these transactions include: a contract to transfer or acquire ownership of a plot of land;138 a contract by which a person agrees to transfer all or part of his land (or to subject it to an usufruct);139 a contract between future heirs concerning their expected reserved shares following the expected intestacy of a now living third party testator;140 a contract promising a gift;141 marriage contracts;142 a declaration of waiver of a share of matrimonial property or a

135 These matters are outside the scope of this book but the Bundersnotarkammer website provides a basic indication of the nature of the regional organisation of the profession in Germany. The following Länder follow the Nur Notar model: Bayern, Brandenburg, Hamburg, Mecklenburg-Vorpommern, Rheinland-Pfalz, Saarland, Sachsen, Sachsen-Anhalt, Thüringen and the ‘rheinischen Teile’ of Nordrhein-Westfalen. The remaining Länder (and Berlin) follow the Anwaltsnotar model, see www.bnotk.de/en/index.php. 136 See §§ 17–21 of the Beurkundungsgesetz. 137 See § 24 (3) of the Bundesnotarordnung (BNot O) concerning the role of the notary under § 15 (2) of the der Grundbuchordnung (Land Registry Code), § 25 of the Schiffsregisterordnung (Ship Register Regulations), § 378 of the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Family Procedures Act). 138 § 311b (1) BGB. 139 § 311b (3) BGB. 140 § 311b (5) BGB. 141 § 518 BGB. 142 § 1410 BGB.

The Development of Domestic Notarial Authentic Instruments  71 contract relating thereunto;143 a termination of community of property by the surviving spouse by declaration or by contract;144 set-off or lump sum payments required following a termination of community of property arrangements by a surviving spouse;145 a maintenance contract if it is agreed before the divorce;146 an acknowledgement of paternity;147 declarations concerning consent to an adoption;148 declaration of revocation of consent to adoption by the child;149 declarations of parental custody of children of unmarried parents;150 applications to change registered habitual residence;151 a contract of inheritance152 and a declaration of avoidance relating thereunto;153 to draw-up a power of attorney suitable for an authorised representative able to disclaim an inheritance;154 a contract by which a co-heir disposes of his share in an estate;155 the creation of a public will;156 a consent by the other party to the testator cancelling by his will a legacy or testamentary burden;157 and, a contract to either renounce or sell an inheritance.158 Concerning contracts that according to legislation must be drawn up by notaries, § 128 BGB allows the notary to first record the offer and then to record the acceptance. There are further requirements for the involvement of notaries and the drawing up of authentic instruments in relation to the formation of corporations and similar business entities (and for aspects of what may loosely be called their administration).159 Within the Introductory Act to the BGB, the EGBGB,160 the following situations also require the involvement of a notary and

143 § 1491 (1) and (2) BGB. 144 § 1492 (1) and (2) BGB. 145 § 1501 (2) BGB and see § 1516 BGB. 146 § 1585c BGB. 147 § 1597 BGB. There are also numerous instances involving changing or establishing a name that will involve a notary. 148 § 1750 BGB. 149 § 1746 (2) BGB assuming the child has capacity and is 14 years or older and that the pronouncement of the adoption is not yet legally effective. 150 § 1626d BGB. 151 § 1560 BGB. 152 § 2276 (1) BGB. 153 § 2282 (3) BGB. 154 § 1945 (3) BGB. 155 § 2033 (1) BGB. 156 § 2232 BGB. 157 § 2291 (2) BGB. The notary is not the only official to issue authentic instruments concerning successions; instead of a notary a competent probate court will as per § 2353 BGB issue the Erbschein (certificate of inheritance) and by § 2368 BGB a Testamentsvollstreckerzeugnis (executor’s certificate). 158 § 2348 and § 2371 BGB. 159 See Ready (n 4) who at 11–26, 242 provides a list concerning the formation of private and public companies, their change of corporate form and for private companies matters such as share transfer and change of internal corporate statutes. Some of these requirements are found in the BGB but others are found in the relevant corporate legislative provisions. 160 Einführungsgesetz zum Bürgerlichen Gesetzbuche in der Fassung der Bekanntmachung vom 21. September 1994 (BGBl. I S. 2494; 1997 I S. 1061), das zuletzt durch Artikel 2 Absatz 4 des Gesetzes vom 20. Juli 2017 (BGBl. I S. 2787) available from www.gesetze-im-internet.de/bgbeg/BJNR006049896.html #BJNR006049896BJNG000103377.

72  AIs in Domestic French and German Laws the production of a notarial authentic instrument: by § 14 EGBGB a choice of applicable law for a marriage, and, by § 46d EGBGB a choice of applicable divorce law (allowed via Article 5 of Regulation (EU) No 1259/2010).161

ii.  When May a Notary be Consulted? It is not always necessary to consult only a notary to effect a given matter requiring the involvement of an office or official according to German law. Sometimes the German legal system permits the involvement of a notary or another official. Within the BGB these situations include: a declaration of a conveyance of land;162 transactions in which a public office such as the Land Registry163 or a court164 each offer an alternative to notarial involvement;165 and numerous instances in which a notary or another competent official or a court may compile an official list or inventory.166 Just as in the French legal system it is also generally possible for a party to elect to effect any lawful juridical act with the impartial assistance of a German notary; he may choose to do this to benefit from the enhanced probative value of notarial evidence or to benefit from the evidence and record-keeping/safe-keeping advantages that consulting a notary can confer;167 eg in the context of deposit for authentication of a private will.168 It is equally possible for parties who wish their contemplated juridical act to have the benefit of the probative and executory force of an authentic instrument to seek the impartial advice of a notary on a wholly voluntary basis rather than to produce their juridical acts privately or via another type of private lawyer.

161 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation OJ L 343, 29.12.2010, pp 10–16 (the so-called Rome III Regulation) available from http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=ce lex%3A32010R1259. 162 § 925 BGB. 163 § 873 (2) BGB. 164 § 127a BGB concerning court settlements. 165 § 1155 BGB. 166 § 1035 BGB concerning usufructs; § 1379 (1) concerning the termination of a matrimonial property regime; § 1640 and 1667 (1) BGB inventory of inherited property administered by parent for a child; § 1802 (2 and 3) BGB inventory of property made by a guardian of children with help from notary or made by the notary by order of court; § 2002 BGB heir may require a notary or another competent person to compose and inventory of the estate; § 2215 BGB executor’s inventory of estate; § 2314 BGB rights of reserved share owner to see or have an inventory drawn up by notary or other competent authority. 167 See Beurkundungsgesetz §§ 8, 36 concerning notarial record keeping and § 45 concerning notarial retention of authentic instruments. 168 See § 2231 BGB concerning a private will made by declaration to a notary and the Public Will made with the notary via § 2232 BGB: both are authentic instruments. Once such wills are authenticated they will be deposited with the local competent court, a notary may retain a contract of inheritance but it is likely that it would be deposited in the German central register of wills.

The Development of Domestic Notarial Authentic Instruments  73

iii.  What are the Legal Provisions that Concern German Notarial Authentic Instruments? As indicated above, the probative and executory force of a German notarial authentic instrument is detailed in the Zivilprocessordnung.169 § 415 ZPO concerns public records and documents containing declarations relating to matters that are required by law to take this form; it sets out that such public documents and authentic instruments establish ‘full proof ’. This provision is complemented by § 418 ZPO that, in the circumstances that there is no legislative requirement for the use of such a document to ensure the formal validity of the transaction, allows (subject to the rules of any given Länder) such public documents and authentic instruments to additionally confer the same presumed ‘full proof ’ on all the matters that they may lawfully concern. § 415 Beweiskraft öffentlicher Urkunden über Erklärungen (1) Urkunden, die von einer öffentlichen Behörde innerhalb der Grenzen ihrer Amtsbefugnisse oder von einer mit öffentlichem Glauben versehenen Person innerhalb des ihr zugewiesenen Geschäftskreises in der vorgeschriebenen Form aufgenommen sind (öffentliche Urkunden), begründen, wenn sie über eine vor der Behörde oder der Urkundsperson abgegebene Erklärung errichtet sind, vollen Beweis des durch die Behörde oder die Urkundsperson beurkundeten Vorganges. (2) Der Beweis, dass der Vorgang unrichtig beurkundet sei, ist zulässig.170 English translation: § 415 – Evidentiary value of public records and documents regarding declarations (1) Records and documents that have been prepared, in accordance with the requirements as to form, by a public authority within the scope of its official responsibilities, or by a person or entity vested with public trust within the sphere of business assigned to him or it (public records and documents), shall establish full proof, provided they have been executed regarding a declaration made before the public authority or the public official issuing the deed. (2) Evidence proving that the transaction has been improperly recorded is admissible.171 § 418 Beweiskraft öffentlicher Urkunden mit anderem Inhalt (1) Öffentliche Urkunden, die einen anderen als den in den §§ 415, 417 bezeichneten Inhalt haben, begründen vollen Beweis der darin bezeugten Tatsachen. (2) Der Beweis der Unrichtigkeit der bezeugten Tatsachen ist zulässig, sofern nicht die Landesgesetze diesen Beweis ausschließen oder beschränken. 169 Zivilprozessordnung in der Fassung der Bekanntmachung vom 5. Dezember 2005 (BGBl. I S. 3202; 2006 I S. 431; 2007 I S. 1781), die zuletzt durch Artikel 11 Absatz 15 des Gesetzes vom 18. Juli 2017 (BGBl. I S. 2745) available from www.gesetze-im-internet.de/zpo/BJNR005330950.html#BJNR005330 950BJNG000032301. 170 From www.gesetze-im-internet.de/zpo/__415.html. 171 From www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p1067.

74  AIs in Domestic French and German Laws (3) Beruht das Zeugnis nicht auf eigener Wahrnehmung der Behörde oder der Urkundsperson, so ist die Vorschrift des ersten Absatzes nur dann anzuwenden, wenn sich aus den Landesgesetzen ergibt, dass die Beweiskraft des Zeugnisses von der eigenen Wahrnehmung unabhängig ist.172 English translation: § 418 – Evidentiary value of public records and documents with other content (1) Public records and documents setting out other content than that designated in sections 415 and 417 establish full proof of the facts set out therein. (2) Evidence proving that the facts set out therein are wrong is admissible unless the laws of a federal Land rule out or limit such evidence. (3) Should the certification not be based on the own perception of the public authority or the public official issuing the deed, the rule established in subsection (1) shall be applied only where it is apparent from the laws of a federal Land that the evidentiary value of the certification is independent of that own perception.173

The significance of this presumed ‘full proof ’, in either context, is that it restricts the options of the German courts to adopt their normal free evaluation of the evidence properly provided by the authentic instrument. For as long as the evidential presumption in § 415 ZPO or § 418 ZPO continue to apply, the court is prevented by § 286 (2) ZPO174 from freely evaluating the truthfulness of the evidence with which it has lawfully been presented: this is the probative force175 of a German public document and it also applies to German notarial authentic instruments. § 437 (1) ZPO records that German public documents, which category includes notarial authentic instruments, are presumed to be authentic.176 This probative force/presumption of truthfulness is however qualified by the possibilities allowed by the legislation: § 415 (2) ZPO states that evidence indicating improper

172 From

www.gesetze-im-internet.de/zpo/__418.html. www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p1067. 174 § 286 ZPO Freie Beweiswürdigung 173 From

(1) Das Gericht hat unter Berücksichtigung des gesamten Inhalts der Verhandlungen und des Ergebnisses einer etwaigen Beweisaufnahme nach freier Überzeugung zu entscheiden, ob eine tatsächliche Behauptung für wahr oder für nicht wahr zu erachten sei. In dem Urteil sind die Gründe anzugeben, die für die richterliche Überzeugung leitend gewesen sind. (2) An gesetzliche Beweisregeln ist das Gericht nur in den durch dieses Gesetz bezeichneten Fällen gebunden. § 286 – Evaluation of evidence at the court’s discretion and conviction (1) The court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges. (2) The court shall be bound to statutory rules of evidence only in the cases designated in the present Code. Original from www.gesetze-im-internet.de/zpo/__286.html; English translation from www. gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p1067. 175 Beweiskraft in German. 176 § 437 (2) ZPO allows a court that is concerned by the authenticity of the public document to require (ex officio) that its author provide a statement of authenticity.

The Development of Domestic Notarial Authentic Instruments  75 recording of the transaction (ie evidence indicating a formal defect in the procedure required to draw-up the notarial authentic instrument) is admissible; § 418 (2) ZPO declares that evidence demonstrating that the facts recorded are wrong is also technically admissible, subject to the regional laws of the Länder which may restrict the admissibility of evidence under § 418 ZPO. Another aspect of the executory force of a German notarial authentic instrument177 is provided by the ZPO: § 794 (1) of which provides a range of enforceable titles that includes at No 5 enforceable notarial documents (­öffentliche Urkunden). § 794 Weitere Vollstreckungstitel (1)  Die Zwangsvollstreckung findet ferner statt: … 5. aus Urkunden, die von einem deutschen Gericht oder von einem deutschen Notar innerhalb der Grenzen seiner Amtsbefugnisse in der vorgeschriebenen Form aufgenommen sind, sofern die Urkunde über einen Anspruch errichtet ist, der einer vergleichsweisen Regelung zugänglich, nicht auf Abgabe einer Willenserklärung gerichtet ist und nicht den Bestand eines Mietverhältnisses über Wohnraum betrifft, und der Schuldner sich in der Urkunde wegen des zu bezeichnenden Anspruchs der sofortigen Zwangsvollstreckung unterworfen hat; (2)  Soweit nach den Vorschriften der §§ 737, 743, des § 745 Abs. 2 und des § 748 Abs. 2 die Verurteilung eines Beteiligten zur Duldung der Zwangsvollstreckung erforderlich ist, wird sie dadurch ersetzt, dass der Beteiligte in einer nach Absatz 1 Nr. 5 aufgenommenen Urkunde die sofortige Zwangsvollstreckung in die seinem Recht unterworfenen Gegenstände bewilligt.178 English translation: § 794 Further enforceable legal documents (1)  Compulsory enforcement may furthermore be pursued: … 5. Based on records or documents that have been recorded in accordance with the requirements as to form by a German court or by a German notary within the bounds of his official authority, provided that the record or document has been recorded regarding a claim that can be provided for by a settlement, that is not directed at obtaining a declaration of intent, and that does not concern the existence of a tenancy relationship for residential spaces, and furthermore provided that the debtor has subjected himself, in the record or document, to immediate compulsory enforcement of the claim as specified therein; (2) Insofar as, pursuant to the stipulations of §§ 737, 743, § 745 (2), and of § 748 (2) it is necessary to [determine that] a party involved [must submit] to compulsory enforcement, this shall be [dispensed with if] the party involved approv[es], in a record or document prepared pursuant to subsection (1) number 5, the immediate compulsory enforcement against the objects that are subject to the title he holds.179 177 Vollstreckbarkeit in German. 178 Original from www.gesetze-im-internet.de/zpo/__794.html. 179 The reference to the four other provisions in § 794(2) ZPO all concern situations in which the transaction must have proceeded via a notary and hence for which there is no need to provide additional

76  AIs in Domestic French and German Laws According to § 795 ZPO the enforcement of, inter alia, a German notarial authentic instrument may immediately proceed according to §§ 724–793 ZPO (which concern the enforcement of an enforceable domestic judgment) subject to: a) necessary modifications to §§ 724–793 ZPO to accommodate the notarial authentic instrument as another type of enforceable title, or b) to specific modifications introduced by §§ 795a–800 ZPO concerning the different types of other enforceable titles included in § 794 ZPO. The most general of the specific modifications for the enforcement of notarial authentic instruments is found in § 797 ZPO which concerns the procedure to be followed when the enforcement is based on public (or other enforceable) documents. The notary who has retained the original authentic instrument has the competence to issue an execution copy of that document and his local court (Amtsgericht) has the jurisdiction to deal with objections and applications relating to this matter.180 The usual procedural rule concerning the enforcement of judgments, ie that only objections that arose after the final available judicial hearing may be pursued in the course of the enforcement phase of proceedings, is disapplied by § 797(4) ZPO if the enforcement concerns an authentic instrument; neither the consultations with the notary leading to the drawingup of the authentic instrument nor any eventual application to that notary by a creditor for an enforceable copy related to the original authentic instrument can be equated with a judicial hearing of a dispute leading to an enforceable judgment.181 The most important of the other specific modifications to the normal enforcement procedures are set out by §§ 799–800a ZPO. These modifications concern and facilitate the enforceability of notarial authentic instruments that have been drawn-up to allow immediate enforcement against the debtor’s registered ‘land’ or associated registered property interests (eg mortgages, charges secured on land, or annuities secured on land).182 It will be remembered that at the point of drafting the original ‘CPO’ there were a range of differing opinions across the procedural laws of the different Länder concerning whether or not the executory force of a notarial authentic instrument should extend beyond the execution of money claims to also include the execution of claims based on the ownership of ‘land’ (or other forms of real-property interests): in its present form the ZPO may best be understood to reflect a compromise on these issues.

protection for the parties concerning the making of an informed choice. English translation from www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p2690, the parts in square brackets have been inserted by the author to improve the sense of the original translation. 180 See § 797 (2) and (3) ZPO. 181 § 797 (4) ZPO disapplying § 767(2) ZPO. 182 § 799 ZPO allows the creditor’s successor to proceed against the debtor without first notifying him of its succession. § 799a ZPO subjects creditors, other than those named in the authentic instrument (or their successors), who seek to enforce against the debtor under the authentic instrument to a liability to compensate him for any losses and for his expenses in opposing execution if their attempted enforcement is declared inadmissible.

The Development of Domestic Notarial Authentic Instruments  77 Thus § 800 ZPO explicitly allows an immediate claim for execution against the debtor’s registered real property interests183 but requires that the debtor must have consented to this immediate enforcement and that this consent itself must also have been entered and registered in the land register; this registration of the creditor’s enforcement interest adheres to the debtor’s property for the duration of the obligation it secures. A transfer of the land that does not itself also cause the discharge of the obligation contained in the notarial authentic instrument184 is thus a transfer of real property subject to the security granted by the original owner/authentic instrument debtor: if therefore the authentic instrument debtor falls into default after the property he used as a security has been transferred to another, the creditor of the authentic instrument can still enforce against the property charged with the registered debt. To facilitate such enforcement § 800 (2) ZPO removes the need for the creditor to serve a document proving his acquisition of ownership against any later owner of the land; the creditor can simply proceed to enforce against the land (eg by auction). Jurisdiction over these matters is given to the local court in the place where the ‘land’ is located. § 800 ZPO is however subject to § 801 ZPO which allows the Länder to vary aspects of these default possibilities for enforcement against ‘real property’ based security interests.185 The question of what type of obligation may be rendered enforceable in an authentic instrument has also been expanded from merely money claims since 1  January 1999186 and now includes any permitted obligation to do or not to do most things. Thus the performance required by a German notarial authentic instrument can extend to an obligation to build a property or to clear a site and each may be made immediately enforceable via § 794 (1) No 5 ZPO without any need to involve the courts in any contentious proceedings.187 This freedom is however subject to the restrictions on enforceable notarial authentic instruments by § 794 (1) No 5 ZPO which acts to prevent the enforcement of any German notarial authentic instrument to the extent that it concerns: a) claims that cannot be settled by a compromise; b) claims that seek to so submit a Willenserklärung (a legally binding declaration of will required for a valid juridical act)188 or, c) that relate to the existence of a residential lease. Without these restrictions on its ability

183 Under § 800a ZPO there are similar provisions for ships and maritime assets upon which a mortgage may also be secured: these provisions are not subject to variation by the laws of regional Länder. 184 As may be imagined, the existence of the secured obligation will become apparent to any subsequent buyer of the land in the course of the sale and subsequent registration of the transaction. 185 This issue is outside the scope of this book. There is no equivalent freedom for the Länder to vary the provisions concerning maritime mortgages, see § 800a ZPO. 186 For details of the 1999 provisions that amended the ZPO on this issue see Seiler, § 794 rn 45 p 1100 in Thomas and Putzo, ZPO Kommmentar 38th edn (Munich, CH Beck, 2017). 187 These examples are given by R Geimer, The Circulation of Notarial Acts and Their Effect in Law, XXIII. International Congress of Latin Notaries Report of the German Delegation, 25 http://bundesnotarkammer.de/_downloads/UINL_Kongress/Athen/GEIMER_ENGLISH.pdf. 188 This restriction does not prevent the notarial certification of such a Willenserklärung.

78  AIs in Domestic French and German Laws to create an enforceable title, the notarial authentic instrument could be employed to circumvent important aspects of the administration of justice in the German legal system by restricting or removing the ability of the courts to supervise and render binding judgments concerning these three important matters, eg how could a court decide that a litigant it wishes to specifically perform shall be deemed by its judgment (via § 894 ZPO) to have made a necessary Willenserklärung (to constitute the performance of a given juridical act) if there is also an enforceable notarial authentic instrument drawn-up to have a contrary effect?189

iv.  Challenging an Authentic Instrument in the German Legal System The German legal system, in common with the French legal system (discussed above), does not encourage routine contentious challenges to the operation or the products of its system of non-contentious jurisdiction. That said, the presumptions made by the German legal system concerning notarial authentic instruments and their enforcement have traditionally been less absolute and are seemingly more flexible than those of the French legal system on equivalent issues.190 In large part the impression of German liberality is an enduring consequence of the general and well-established procedural potential within its federal civil procedure law for a ‘debtor’ to raise objections to enforcement during domestic enforcement proceedings: in the case of the enforcement of an authentic instrument this potential is theoretically even wider than with a judgment as an authentic instrument (whether or not enforceable) generates no preclusive or res judicata effects.191 A further factor in what may seem to be the relative liberality192 of the German legal system concerning challenging authentic instruments is that the provisions of the ZPO establishing the presumptions of authenticity (§ 437 (1)) and proof (§  415(1) or § 418(1)) concerning authentic instruments are each qualified with a second paragraph which contemplates the possibility of the rebuttal of the relevant presumption in normal proceedings before any court, rather than requiring the disputant to engage in special and separate inscription de faux-style ‘forgery’ proceedings as per the legal systems following the French approach to

189 See Seiler § 794 rn 51 p 1101 in Thomas and Putzo (n 186) cross referring to Seiler § 894 ZPO concerning ‘fictitious’ (ie judicially implied) Willenserklärungen that the court can, in its judgment, order that a party to the litigation shall be deemed to have made, see rn 5 at 1320 for examples. 190 Though this impression may have been somewhat attenuated by the 2016 reform of old Art 1319 Code Civil, it has not been dispelled entirely. 191 If such res judicata effects are required it is necessary to seek a declaratory judgment concerning the relevant aspect or aspects of the authentic instrument and then to enforce the declaratory judgment. 192 Geimer makes the point that it is easier in practice to challenge a notarial authentic instrument under § 415 (2) ZPO than to challenge the evidential import of a declaration or consent to a transaction if a party has placed his genuine signature on a document that has then been notarially certified as such under § 416 ZPO; see Geimer (n 187) 15.

The Development of Domestic Notarial Authentic Instruments  79 this issue. That said, it is important to note that the ZPO still represents a compromise between the federal law and the laws of the Länder, eg for matters requiring challenge via § 418 (2) ZPO (but not for § 415 or § 437 ZPO) the admissibility of evidence in rebuttal is potentially affected by the local evidence rules of the relevant Land in which the challenge is to be presented.193 Despite the ostensible liberality of the German legal system concerning challenges to the authenticity, formal requirements and the probative/evidential force of notarial authentic instruments, the evidence provided to sustain such challenges must not only be admissible but must also be sufficiently compelling to rebut a strong residual presumption of notarial compliance with procedures, and voluntary participation by the parties, concerning the matters recorded in a notarial authentic instrument; merely attempting to cast doubt over what objectively appears to the court to be a notarial authentic instrument properly drawn-up according to German notarial and registration procedures will not suffice to rebut any of the challengeable presumptions.

v.  Challenging the Instrumentum of an Authentic Instrument in the German Legal System A challenge to the instrumentum of a German notarial authentic instrument may either concern an allegation of a technical defect in the formalities of drawingup the authentic instrument of sufficient seriousness as to prevent it from being regarded as an effective public document, or may concern a challenge based in effect on what can be regarded as akin to an act of falsity/forgery concerning the drawing-up of that authentic instrument. Theoretically there are two methods for a debtor to challenge the instrumentum of a German authentic instrument and the applicant may elect between them. The first method is for the debtor to seek a negative declaration from the court concerning that authentic instrument.194 This procedure is however rare as even if the relevant declaration is granted it will not prevent the instigation of domestic enforcement proceedings against the debtor. Nothing more will be said of this first method of challenge.195 The second, and most frequently employed, method

193 As the admissibility of civil evidence in Germany varies across the Länder, it is possible that the evidence that the debtor would wish to adduce may not actually be admissible in the relevant local German court, see the qualification offered in § 418 (2) ZPO. 194 See § 256 ZPO which provides a declaratory action (Feststellungsklage) subject to the requirement that the claimant must possess an appropriate legal interest (besonderes Rechtsschutzinteresse) to employ it. Geimer notes that the debtor’s version of this action is very rare for the reason that even if granted it does not affect the enforceability of the authentic instrument, see Geimer (n 187) 59. 195 The negative declaration (a negative Feststellungsklage) only rules on the relationship between the parties to the authentic instrument, it does not affect the underlying enforceability of the authentic instrument itself which continues until the debtor opposes domestic enforcement. A Feststellungsklage cannot be enforced personally against the creditor, thus the debtor possessed of such a declaration must still plead it at the enforcement stage of proceedings.

80  AIs in Domestic French and German Laws of challenge is for the debtor to use the Vollstreckungsgegenklage provided by § 767 ZPO to oppose either the possibility196 or the actualité of enforcement of the notarial authentic instrument. Such use of § 767 ZPO to challenge the instrumentum of a notarial authentic instrument is not prevented by the debtor having earlier consented to immediate enforcement. The challenge proceeds however only via the admissible provisions of the ZPO (eg § 415 (2) or § 418 (2) ZPO) and does not involve the provisions of the BGB: the dominant opinion of German jurisprudence and of German legal literature is that an instrumentum challenge cannot be based on the provisions of the Bürgerlichen Gesetzbuches eg attempts to use the BGB provisions concerning voidability to sustain an instrumentum challenge have been rejected by the Bundesgerichtshof concerning voidable mistakes of intention (§ 119 BGB), voidability for deceit or duress (§ 123 BGB), and in relation to the BGB’s consequences of voidability (§ 142 BGB).197 The debtor may be proactive and initiate the challenge but usually prefers to wait until the creditor attempts to rely upon the authentic instrument in enforcement proceedings, before raising a defensive challenge to oppose the enforcement by adducing admissible counter evidence demonstrating either an error or falsity in the process, the declarations or the notarially verified facts via either § 415(2) or § 418(2) ZPO as appropriate. Assuming there to be neither notarial misconduct nor error, it will be appreciated that a debtor who has sought the assistance of a notary and who has then over a period of what might be weeks received his impartial advice198 concerning the legal effects (for all the parties) of the contemplated transaction, who has seen a draft of the document and who later hears the final version of the document being read aloud in his presence and has then indicated his consent to its contents by signing it before a notary, is likely to find it difficult to exploit the possibilities offered by § 415 (2) ZPO or § 418 (2) ZPO to rebut the evidence formally recorded in the authentic instrument. If however it can be demonstrated to the court that the manner of the drawingup of the authentic instrument deviated in a significant fashion from that which the law requires of the German notary, this will assist he who would dispute its formal validity and its authenticity. Assuming however that the authentic instrument at issue was properly drawn-up, as indicated above, the truthfulness or otherwise of the disputed evidence is, subject to the potential for local variations to the admissibility of counter evidence falling under § 418 (2) ZPO, always a matter reserved to the German court: if sufficiently convinced by full proof it may make a reasoned decision that the evidence offered, whether via an authentic

196 § 767 ZPO does not require the debtor to wait until the creditor seeks to enforce the obligation. The debtor may use § 767 ZPO to actively pre-empt such enforcement. 197 See Casamayor Puigvert (n 90) 94 citing BGH DNotZ 1981, S 738 and BGH DNotZ 1985, S 47. 198 The advice of a notary in this situation is deemed to be impartial because he is carrying out his public function: he does not represent one party or the other (as would a private lawyer) but rather is supposed to act in a neutral fashion without the ‘bias’ arising from representing only one ‘client’.

The Development of Domestic Notarial Authentic Instruments  81 instrument or otherwise, does not prove the truth of the contentions which the would-be enforcer of the authentic instrument wishes to advance.199 Equally, the court may conclude from other admissible evidence that the enforcement of a seemingly accurate and ‘true’ authentic instrument should not proceed if the other admissible evidence proves either that the debtor has already paid the sum claimed, or, that the creditor had waived all or part of such payment or performance as is required by the original authentic instrument concerned in the § 767 ZPO proceedings.200 Though the bringing of challenges to the formal validity of an authentic instrument in the German legal system seems somewhat less daunting, less costly and less personally hazardous201 than bringing comparable challenges within the French legal system, it appears that the prospects for success of this mode of challenge are not usually much better in Germany than they are in France. Every civil law legal system which has a domestic role for authentic instruments, notarial or otherwise, strongly upholds and defends the probative and executory consequences which it accords to those authentic instruments.

vi.  Challenging the Material Validity of the Underlying Agreement/ Declaration Contained in the Authentic Instrument (the Negotium) before a Domestic Court As in the French legal system, a negotium challenge in Germany also questions the legality of the underlying agreement or declarations that constitute the juridical act which the authentic instrument purports to contain and record. Thus, a n ­ egotium challenge need not involve a challenge to the instrumentum of the authentic instrument. A negotium challenge differs significantly from an instrumentum challenge not only by reason of targeting different issues but potentially also in relation to the private international law that determines jurisdiction and particularly the applicable law over the relevant disputed juridical act. A successful negotium challenge will however typically invalidate the attempted juridical act contained in the authentic instrument and therefore must affect the ability of any person to seek or continue its domestic execution: such a challenge may occur before or after any attempted enforcement and, depending on the circumstances, may prevent actual enforcement or, if enforcement has already occurred, may require restitution by the supposed creditor. The German legal system is just as sensitive as its French equivalent to the domestic misuse of authentic instruments as a means to conceal and/or to

199 See § 286 (1) ZPO. 200 A debtor possessed of a negative Feststellungsklage may also use the Vollstreckungsgegenklage procedure to ask the court to refuse an order for enforcement on the basis that his declaration states there to be no relationship of creditor/debtor between the parties. 201 There being no routine civil fine of the ‘unmeritorious’ or settled case in Germany.

82  AIs in Domestic French and German Laws misrepresent aspects of transactions (proper and improper) and their associated monetary values.202 As in the abovementioned consideration of a negotium challenge in the French legal system, it is often practically difficult to sustain such a challenge in relation to a notarial authentic before the German courts. It will be remembered that a negotium challenge requires the demonstration of a significant defect in the juridical act contained in the notarial authentic instrument. The involvement of the notary in the drawing-up of the authentic instrument should normally restrict the usual bases upon which such claims can be founded. Assuming a normal transaction and a competent notary, a party can hardly say that he was unaware of the nature of the transaction or the legal effects of signifying his consent to an arrangement by signing a document that was read aloud to him in the course of creating the juridical act that was then included in the authentic instrument. The orthodox manner of the drawing-up of the authentic instrument and the creation of the juridical act should each normally act to reduce, if not necessarily to eliminate, the potential bases upon which a party can plausibly claim the juridical act to be invalid under whatever may be its applicable law.

C. Conclusion This chapter has set out the basics of the historical development leading to the current domestic operation of notarial authentic instruments in the French and in the German legal systems. As well as revealing the differing domestic development of such authentic instruments in each legal system it has indicated the continued existence of differences as well as similarities in the domestic laws of the States which employ them. This alerts the reader to avoid the mistake of the comparatist who assumes that a recently discovered alien legal institution is everywhere the same. In fact, the accounts of the domestic French and German laws offered above show that domestic conceptions of authentic instruments and their notary authors did not and do not follow identical paths. It is equally plain that domestic ­authentic instruments and domestic notarial professions each develop and adapt within their legal systems in response to shifting domestic and international factors. With respect it is suggested that such domestic dynamism is an important yet often insufficiently appreciated aspect of the notary and the authentic instruments he may draw-up. The comparative error mentioned above can just as easily manifest itself in an assumption that the undoubted existence of an EU private international law of authentic instruments suggests that there must be a single ‘EU authentic instrument’ instead of the reality of a non-exhaustive collection of attributes advanced

202 See the discussion in this chapter concerning the position in French law in the text associated with fns 92–93.

The Development of Domestic Notarial Authentic Instruments  83 by European legislators in the course of the Lugano Convention 1988 and then approved by the European court of Justice in the Unibank case in 1999 that other European legislators have subsequently cut-and-pasted, with minor amendments, into further EU private international law Regulations as discussed in chapters four to eight below. What we are left with are domestic laws concerning authentic instruments and their notary authors that are regulated, developing and adapting at the Member State level, plus an expanding body of European private international law Regulations concerning authentic instruments within various constellations of Member State legal systems that allow various cross-border legal effects to be produced in an enforcement venue by a notarial intervention that is unregulated in that venue by that venue. In the absence of a European legal institution of an authentic instrument/authentic act the only effective regulation of the conduct of the notary and the use of the authentic instrument in the Member State of enforcement must proceed at the debtor’s expense in the Member State of origin. With great respect to the notaries and their representatives, who have certainly not created this difficulty, this widening regulatory gap is vulnerable to abusive conduct by a creditor to the authentic instrument debtor and should be minimised. As at present it appears politically impossible to contemplate a harmonisation of domestic authentic instruments or notarial professions via the introduction of an EU authentic instrument or an EU notary, it is suggested that attention should be directed to the minimisation of the potential mischief of a de facto unregulated authentic instrument presented in an enforcement venue which a given EU Regulation renders incapable of regulating its enforcement. It is suggested that the authorities in the enforcement venue should always have the options of staying the requested enforcement and/or contacting the notary author (or his successor) seeking information relevant to the requested enforcement. It is true that such possibilities could potentially slow the enforcement process to the detriment of the creditor’s interests, however as well as providing a spur to future harmonisation to properly resolve the issue they may be so designed as to place a costs sanction on the debtor who unnecessarily invokes them. The next chapter will also indicate such frequently overlooked dynamism in the account it offers of the development of the early (and now residual) potential for the legal effects of a domestic authentic instrument to cross borders that, in later conjunction with the development of the European Economic Community, would lead to the establishment of the multi-lateral cross-border potential contained within the European private international law of authentic instruments.

3 The Cross-Border Legal Effect of Authentic Instruments I. Introduction The foregoing chapters have indicated that a properly drawn-up notarial ­authentic instrument commonly has an enhanced domestic evidentiary significance because it is treated as a public document in its legal system of origin: this evidential significance is referred to as its ‘probative force’.1 In legal systems that feature the notarial authentic instrument this probative force is, until rebutted, treated de facto as conclusive proof of all of the factual matters which the domestic notary has properly and competently personally verified as true.2 Further, in most, but not all, such legal systems these notarial verifications may also be allowed to lead on to an additional ‘executory force’ allowing the authentic instrument creditor an extra non-contentious domestic enforcement option to enforce it directly against its debtor without any need for prior judicial approval or a judgment produced by commencing contentious legal proceedings.3 The previous chapter assumed that a creditor of a notarial authentic instrument would only wish to employ its probative and (potential) executory force within the legal system in which it had been drawn-up. What though if the creditor of a notarial authentic instrument validly drawn-up in State ‘A’ now wishes to use that instrument to produce evidentiary or enforcement effects in State ‘B’? It is with the private international law implications of this question that the second part of this book is concerned. This chapter considers the extent to which a notarial authentic instrument drawn-up in one State may be employed in a different State to produce crossborder evidentiary or enforcement legal effects other than via the provisions of EU private international law. This matter is significant for various reasons. At an immediate level it applies, in principle, to the cross-border use of all notarial authentic instruments that originate outside the EU. It also applies to any intra-EU

1 Force probante in French, Beweiskraft in German. 2 It must not be forgotten that the specifics of what the notary can properly verify can and does vary from State to State. 3 Force obligatoire in French, Vollstreckbarkeit in German.

An Authentic Instrument Employed Outwith the State of its Creation  85 use of notarial authentic instruments that cannot derive their cross-border efficacy from EU private international law because they are wholly or partially outside the scope of the relevant EU Regulation: the position here is complicated further by the continued existence of residual State provisions and also various bilateral arrangements between certain EU Member States that allow an incoming notarial authentic instrument that cannot engage, or engage fully, with EU private international law to produce various cross-border evidentiary or enforcement effects. As the discussion below demonstrates, the question of the cross-border potential of notarial authentic instruments is of great significance in connection with the delineation and comprehension of the private international law of such instruments.

II.  An Authentic Instrument Employed Outwith the State of its Creation A domestic legal system is ideally situated to supervise the authentic instruments which it allows its notaries to draw-up: it balances the different aspects of its contentious and non-contentious legal practice, sets out evidential presumptions (and challenge possibilities) concerning the authenticity, probative force and executory force of its authentic instruments. Such arrangements are however particular to each legal system; if the creditor of a notarial authentic instrument takes it from the legal system in which it was drawn-up to a different State and wishes to use it there as an authentic instrument, a range of difficult legal issues may, depending on his intentions, arise. The most basic difficulties concern the fact that the authenticity, probative and evidential advantages conferred on an authentic instrument are derived from its status as a public document in the legal system in which it was drawn-up. What should it signify in State ‘A’ if a would-be creditor of a notarial authentic i­nstrument drawn-up in State ‘B’ produces it and then wishes to rely on one or more of its State ‘B’ qualities of authenticity, probative force and executory force in State ‘A’? The answer to this question is important as it is the facilitation of authenticity, probative force and executory force allowed to the incoming notarial authentic instrument by the receiving State that constitutes the private international law of notarial authentic instruments. The first step to understand the nature and extent of the private international law of notarial authentic instruments, and to appreciate why it is often obscured from view, is to again note the important distinction between a notarial authentic instrument and its material contents. If the content/negotium of the State ‘B’ authentic instrument is argued to amount to a juridical act in State ‘A’, it is to the conflict of laws rules of the forum (State ‘A’) concerning that alleged juridical act that we turn to determine the applicable law of the juridical act: we do not need to consider this matter differently, eg by employing a special method to determine

86  Cross-Border Legal Effects in General the applicable law, because the juridical act was expressed in an incoming authentic instrument. There is no distinct private international law of notarial authentic instruments in this context. In the circumstance that the use of the foreign authentic instrument sought by its creditor in another legal system requires no more than the demonstration that the particular juridical act it is argued to include occurred and did so validly, it suffices to employ standard conflict of law principles to determine the applicable law and then, if necessary, to rely on the forum when addressing these issues to treat the foreign authentic instrument as ordinary documentary evidence admissible as to the actions of the relevant parties. Even if the juridical act in question is one that the legal system of the place of drawing-up requires, for reasons of formal validity, to be via a notarial authentic instrument, this and associated matters of authenticity may usually be resolved, if contested, by a process called ‘legalisation’4 or, if legalisation requirements have been suspended between the two States, by a mere inspection of the authentic instrument as an exemplar of documentary evidence. Thus, when a foreign notarial authentic instrument is produced in contentious or in non-contentious proceedings merely to evidence the existence of a juridical act, it (the authentic instrument) need not interact as such with the operation of that legal system’s conflict of laws principles which determine the applicable law of the material content of the authentic instrument, nor for that matter need it necessarily interact in a special manner with the forum’s evidence rules to affect their normal operation.5 This will however change if the creditor presenting the foreign authentic instrument tries to do something other than merely to use it as ordinary documentary evidence to substantiate the existence of a juridical act. If the creditor wishes to affect the operation of the forum’s law of documentary evidence when he presents the foreign authentic instrument, ie he wishes to rely on its domestic public document status and associated ‘conclusive’ probative force (derived from the place in which it was drawn-up) to establish equivalent presumptions concerning the evidence in the authentic instrument as such, he is then trying to achieve something with his foreign authentic instrument that is at least partially analogous to the recognition that might be accorded to an incoming foreign judgment. It is worth noting that even if the receiving legal system permits an ‘importation’ of aspects of the enhanced probative force for a foreign authentic instrument, this still does not displace the operation of the forum’s conflict of laws rules that determine the applicable law concerning the assumed juridical act in the authentic instrument; if the creditor’s request is accepted, the applicable 4 Discussed in s V below. 5 For simplicity of exposition it is assumed that the normal operation of the evidence law of the forum does not automatically treat the incoming authentic instrument as a public document with evidential advantages. This assumption is however vulnerable to some of the bilateral arrangements discussed below.

Contentious Judgments and Non-Contentious Notorial Authentic Instruments  87 law principles of the forum will still be applied, but this may be subject to the influence of such of the foreign probative force and evidentiary presumptions as the legal system in receipt is willing to attribute to the foreign notarial authentic instrument. Related issues arise when the creditor presents a foreign notarial authentic instrument for enforcement. If the receiving legal system is asked by the creditor to enforce an incoming foreign authentic instrument, this request must again be distinguished from applications concerning the material content/negotium of the juridical act (the governing law of which is, as before, determined via the normal applicable law rules of the forum). The creditor who would enforce a foreign authentic instrument is also attempting to achieve something partially analogous to the cross-border enforcement (following recognition) of a judgment; this time however its creditor wishes not only to invoke a foreign probative force but also to invoke and employ its domestic potential to exert an executory force upon the debtor despite proceeding in a foreign legal system. The private international law of notarial authentic instruments concerns the extent to which these non-contentious notarial documents can as such produce legal effects in foreign legal systems; these effects relate to the law of procedure and evidence of the forum in receipt and are thus, with the necessary modifications to accommodate their non-contentious nature, most closely analogous to the area of private intentional law associated with the cross-border recognition and enforcement of foreign judgments. Foreign notarial authentic instruments do not change the nature of the receiving forum’s normal jurisdiction or applicable law procedures; such instruments may however affect the operation of the forum’s procedure and evidence rules in relation to matters of authenticity, probative force and evidentiary force in a manner somewhat analogous to the effects of an incoming civil judgment.

III.  Distinguishing between Contentious Judgments and Non-Contentious Notarial Authentic Instruments Though the creditor of a foreign notarial authentic instrument who seeks to rely on its authenticity, probative force or executory force in a different legal system is attempting to achieve something partially analogous to the cross-border recognition and enforcement of a judgment, it is important not to misunderstand or to overstate this partial equivalence. The cross-border potential of a notarial authentic instrument cannot be routinely or entirely equated with the cross-border potential of a final judgment: there are points of similarity but also very important points of difference that reflect the fact that a final judgment is a creature of contentious justice while the authentic instrument is no such thing and is, instead, a creature of non-contentious justice.

88  Cross-Border Legal Effects in General A foreign final judgment may be produced and recognised, subject to the forum’s recognition law, as near conclusive proof that various matters have been determined in such a way as to preclude the parties concerned, and others affected by that judgment, from further disputing those findings or orders within the courts of the State in receipt. Such a final judgment – also technically regarded as a public document for international law purposes – has res judicata properties; recognition of that judgment by a receiving State confirms that those res judicata properties are wholly or partially effective in the forum in receipt and therefore affect its laws of procedure and evidence concerning those matters: a refusal of such recognition is a refusal by the forum to allow the judgment presented by its creditor to import such res judicata properties and hence is also a refusal to allow the forum’s laws of procedure and evidence to be affected by the foreign judgment in the manner requested by the judgment creditor.6 Why is this the case? Considered in abstract, the reason that recognition is accorded when a contentious judgment is presented is because the authorities in the State in receipt are satisfied that the foreign judgment accurately expresses the public law involvement of the judicial organs of the State of origin in connection with a private law dispute that has been properly consensually commenced and conducted by the private parties via contentious litigation leading to a final judicial decision that can be accommodated by the legal system of the receiving State now granting the requested recognition. It follows that the recognition of a foreign judgment, in abstract, may generally be withheld if these requirements are not complied with because: a) there are doubts about the finality, authenticity or accuracy of the foreign document that has been presented in the State in receipt as a judgment for recognition; b) the court of origin appears to the State in receipt to have wrongly taken jurisdiction over the dispute; c) the dispute was not in fact of a private law nature; d) the dispute was not properly consensually commenced and conducted by the parties via the contentious litigation that gave rise to the presented judgment; e) the foreign decisions cannot be accommodated within the receiving legal system by the requested recognition – whether because such recognition would entail a conflict with other judgments, with other public international law provisions, or because it would violate the forum’s overriding laws or its public policy. What can be deduced from this abstract summation of the different grounds to allow or refuse the recognition of a foreign judgment is that such recognition

6 The refusal of recognition need not be total, it may be that only an aspect of the recognition is denied.

Contentious Judgments and Non-Contentious Notorial Authentic Instruments  89 proceeds initially from a consideration of factors drawn from the realms of public law and private law by the State in receipt and, if this first consideration yields a favourable result, via a subsequent consideration of whether the legal system of the State in receipt can accommodate the presented judgment without leading to conflicting decisions or a violation of its domestic public policy. Whether considered at home or abroad, an authentic instrument can never produce the res judicata effects of a final judgment: a non-contentious foreign authentic instrument cannot affect the forum’s law of procedure and evidence in the same preclusive ways as can a contentious foreign judgment capable of recognition. As well as the obvious lack of any judicial involvement in the drawing-up of a notarial authentic instrument,7 it also necessarily lacks the quality of finality required of a judgment capable of potential recognition.8 Despite these distinguishing observations it is still useful to briefly consider the extent to which there can be a non-contentious analogue of the recognition of contentious judgments as set out in abstract above. Such a consideration reveals factors that are relevant to the conferral by the State in receipt of additional probative and executory effects on the incoming notarial authentic instrument. The presentation of a properly drawn-up and legalisation compliant notarial authentic instrument to the authorities of the receiving State, with a request that its domestic probative effects and or its domestic enforcement effects be replicated in that State, may demonstrate various points of similarity with the abstract crossborder recognition of a judgment. The notary who, via the exercise of his official functions, draws-up the authentic instrument, represents one aspect of the public law intervention of the State of origin; thereafter further public law interventions arguably follow from the enhanced domestic probative and executory forces attributable to its domestic public document status. The notary however is not a judge and cannot decide that the purported juridical act in the authentic instrument is valid. Unlike a final judgment a notarial authentic instrument does not determine the valid existence of the juridical act it purports to include: at best the receiving State can conclude that a notarial authentic instrument indicates that on a given day at a given place a juridical act appears to have been effected and can hence be assumed to exist (pending proof to the contrary) within a public document drawnup by a notary in the sending State. Given the lack of finality of a notarial authentic instrument, if compared with a final judgment, additional questions are often required if the authorities in the

7 Even in the circumstances that a notary is given an explicit judicial competence by his domestic legal system (eg Hungary) he does not exercise that judicial competence when acting as a notary to draw up a notarial authentic instrument: nor for that matter does he produce a final judgment when acting as a notary to draw-up an authentic instrument. 8 As noted in the preceding chapters, including a juridical act in a properly drawn-up authentic instrument does not establish the lawfulness of that juridical act; equally, the authentic instrument itself remains potentially subject to domestic challenge possibilities which continue even after it has been enforced.

90  Cross-Border Legal Effects in General receiving State are to decide to confer the requested probative or executory force on a foreign notarial authentic instrument. Assuming the legal system in question allows such a possibility, and assuming legalisation compliance, the next question is whether the foreign notarial authentic instrument is sufficiently equivalent with the forum’s conception of that legal institution to permit or warrant the requested conferral of probative or executory force by and within the receiving State. This question may be asked in relation to factors concerning not only the legal institution but also concerning the notary who drew it up. If sufficient equivalence is found by the receiving State to allow it to potentially confer probative and/or executory effects on the incoming notarial authentic instrument, the next question is whether its public policy allows it to do this in the manner requested. If this question is answered in the affirmative, the next questions concern whether, and if so how, the receiving State should confer the requested probative and executory force on the incoming notarial authentic instrument. In connection with the last two questions it is again worth noting the consequences of the absence of finality for a non-contentious notarial authentic instrument, as compared to a contentious judgment. Though issues of party consent are incorporated within the process of granting recognition to a foreign judgment, the finality of the judgment necessarily minimises the extent to which party consent is relevant at the point of the presentation of the judgment for recognition and enforcement.9 The same cannot be said of a notarial authentic instrument presented with a request for additional cross-border probative and executory force: here the receiving State may only assume, absent challenges, that the notarial authentic instrument demonstrates initial and enduring party consent to engage with the non-contentious justice of the State of origin that justify it allowing additional probative or executory effects. The assumed consensual engagement with non-contentious justice is a relevant justification for the preliminary decision to allow the conferral of the requested cross-border legal effects going to probative and executory force. If, however, the receiving State learns that the notarial authentic instrument (and hence the assumed consensual engagement with noncontentious justice) is being challenged in the State of origin, this may be a strong reason to refuse to allow it to produce cross-border probative or executory legal effects in the receiving State. It is thus possible to draw out certain similarities between the different processes by which certain States consider whether foreign judgments should be recognised and enforced and whether foreign notarial authentic instruments

9 Party consent may be relevant to a judgment recognition application if it undermines the substantive or procedural basis of the conduct of the litigation in the State of origin; eg a court lacking another jurisdictional base claims to take jurisdiction based on a consent that the debtor disputes, or, the judgment was produced without the debtor being properly notified of the litigation, or, the judgment was produced because the debtor was prevented (improperly) from defending the litigation.

Contentious Judgments and Non-Contentious Notorial Authentic Instruments  91 should be granted additional probative and executory legal effects. If the issue is approached in abstract terms, and with allowances for the differences resulting from the contentious judgment and the non-contentious notarial authentic instrument, it is even possible to abstractly regard each process as exemplifying a sub-set of a broader category of cross-border recognition and enforcement procedures. Despite the potential to engage in such abstract equivalences in some legal systems, it is however rarely advisable to speak unguardedly of the ‘recognition’ of a foreign notarial authentic instrument. In legal systems that directly and exclusively connect recognition with the preclusive effects of a final judgment, and in legal systems that lack authentic instruments, such imprecision leads to confusion.10 Even if the legal system has the authentic instrument as a legal institution, it is inadvisable to muddle that which is allowed to contentious matters with that which is allowed to non-contentious matters. To avoid such difficulties most legal systems distinguish between the formal exequatur procedures for the recognition and enforcement of foreign judgments and the less formal ‘exequatur like’ arrangements (if any) they provide for incoming foreign authentic instruments.11 As following chapters reveal, confusion can grow significantly if EU private international law Regulations with narrowed or no exequatur provisions, conceptualised predominantly for the cross-border circulation of judgments, are imprecisely drafted to employ the term ‘recognition’ in the different context of cross-border authentic instruments. Since 2012 the EU has preferred to use a different term than recognition (‘acceptance’) concerning the authentic instruments that feature in its new private international law Regulations; regrettably it does not seem inclined to amend the terminology employed in its earlier Regulations. To try to reduce this confusion this book tends to use the nouns ‘receipt’ or ‘reception’ to describe the non-contentious version of what in the context of judgments circulating across borders would be called ‘recognition’.12

10 For exactly this reason Germany has latterly tended to object to suggestions that authentic instruments should benefit from recognition under EU legislation such as the EU’s Succession Regulation discussed below in ch 8. 11 The legal systems that apparently regard recognition as also encompassing authentic instruments can appear surprisingly sanguine concerning the risks of imprecision until it is understood that they are able to manage the eventualities via the same widely drawn exequatur stage that, at least in the mind of a foreign observer, potentially allows the issue to arise. 12 Though it can be argued that there are also risks of similar muddle inherent in unguardedly speaking of the enforcement of foreign notarial authentic instruments, eg that the shared use of the word ‘enforcement’ may elide the differences between the cross-border enforcement of judgments and of notarial authentic instruments, there is no pressing need to also adopt a new term to avoid this eventuality.

92  Cross-Border Legal Effects in General

IV.  A Preliminary Aside Concerning Judgments: Can the Contents of the Authentic Instrument be Converted to a Judgment in the Place of Drawing-Up and then be Exported as a Judgment? The discussion below concerning the cross-border use of authentic instruments and their attributes assumes that there is no suitable mechanism in the State of origin that allows a creditor to convert the relevant aspects of the content of the authentic instrument into a domestic judgment which might then be presented by the creditor to produce the desired legal effects against the debtor in the relevant foreign State. If this assumption is wrong, it may be that the creditor with a notarial authentic instrument drawn-up in State ‘B’ could find it simpler to convert its contents into a domestic judgment by suing the non-performing debtor via contentious proceedings and then seeking the recognition and enforcement of that judgment against the debtor in State ‘A’: this possibility is conditional on the availability of a ‘conversion process’ (eg litigating on the content/obligation contained in the authentic instrument) that will work in the given factual context of the dispute (ie the defendant must be subject to the jurisdiction of the court in State ‘B’ or ‘A’; that court must operate with reasonable expedition and at reasonable cost; the domestic judgment (and the orders it will contain) must be able to adequately ‘translate’ the content of the authentic instrument into a final judgment that State ‘A’ will recognise and or enforce, etc). If it is not possible or economic to so convert the contents of a notarial authentic instrument from State ‘B’ into a judgment which will then allow the required evidentiary and enforcement aspects of that instrument to be recognised and enforced in State ‘A’, it is necessary to consider the issues set out below.

V.  Producing Private International Law Effects via Foreign Notarial Authentic Instruments: Legalisation From the perspective of the receiving State a notarial authentic instrument from another State is not necessarily regarded as a public document, nor an authentic instrument, and nor is it clear that it was drawn-up by an admitted notary: without something to establish the necessary aspects of authenticity concerning the incoming notarial authentic instrument it will not, as such, be able to produce any legal effects as a foreign authentic instrument on the laws of procedure or evidence in the receiving State’s legal system relating to its original probative and executory force. The first requirement for an incoming notarial authentic instrument is thus to demonstrate to the receiving State that it possesses the various qualities of ‘authenticity’ required to allow the receiving State to understand that it is a

Producing Private International Law Effects  93 foreign notarial authentic instrument drawn-up by a notary in and from the State of origin. This demonstration process relies on the fact that the notarial authentic instrument, just like a final judgment, is, for international law purposes, a public document and hence the necessary demonstration of authenticity may proceed via the operation of any applicable legal mechanism designed to allow the circulation of this type of public document. Assuming for the present that there are no other more expeditious ways in which to demonstrate the required authenticity, the desired circulation of the notarial authentic instrument as a type of public document can proceed if the receiving State is satisfied that the person who drew-up the foreign public document/authentic instrument in the sending State was a person entitled to do so and also that by so acting he has conferred the required forms of authenticity upon it according to the law of the sending State: this problem is traditionally solved by a process called ‘legalisation’ or sometimes ‘consularisation’.13 Viewed in abstract ‘legalisation’ refers to the process by which aspects of a public document created in one legal system are verified and certified as accurate to the satisfaction of a different legal system which, it is anticipated, will receive that document: if it is effective, legalisation means that the said verified and certified matters need not be re-verified and re-certified as accurate when the ‘foreign’ document is actually produced in the receiving legal system. In the present context, legalisation attempts to demonstrate to the satisfaction of the receiving State that the ‘author’ of the relevant public document was domestically entitled in the sending State to draw it up and to seal it as an authentic public document. The Consular and Diplomatic staff of the receiving State who are present in the sending State are usually responsible for legalisation duties. Legalisation procedures and requirements can be very diverse.14 For notarial documents, legalisation would traditionally require a notary from the sending State to prove his own status, signature and notarial seal to the satisfaction of the local consular office (or equivalent diplomatic office) of the receiving State by whatever means it would require of him. Though legalisation (in various forms) may sometimes still be required, it was and is, rightly, regarded as a slow and potentially very inefficient way to facilitate the circulation of public documents. Since 1961 the Hague Convention of Legalisation for Foreign Public Documents of 5 October 1961 (hereafter the

13 See Report on the Convention by GAL Droz for the Hague Conference on Private International Law at www.hcch.net/index_en.php?act=publications.details&pid=52; RH Graveson, ‘The Ninth Hague Conference of Private International Law’ (1961) 10 ICLQ 18; JT Haight, ‘Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1975) 9 The International Lawyer 755; KD Sherry, ‘Old Treaties Never Die, They Just Lose Their Teeth: Authentication Needs of a Global Community Demand Retirement of the Hague Public Documents Convention’ (1998) 31 John Marshall Law Review 1045; JW Adams, ‘The Apostille in the 21st Century: International Document Certification and Verification’ (2012) 34 Houston Journal of International Law 519. 14 See NP Ready, Brooke’s Notary 14th edn (London, Sweet & Maxwell, 2013) 244, § 11–29.

94  Cross-Border Legal Effects in General Apostille Convention) has, where applicable, addressed these problems by simplifying various matters.15 The Apostille Convention introduced a procedure by which signatory States mutually agreed to waive certain legalisation requirements for ‘Public Documents’16 inter se if the documents received featured a completed apostille form issued by authorities of the sending State in the sending State.17 Once applied, the Apostille Convention form removes the need for the legalisation of public documents, concerning: a) the authenticity of the signature(s); and b) the capacity in which the person(s) signing has acted; and c) the identity of the seal or stamp applied. The apostille form features 10 standardised pieces of information which the competent sending State authority – in England and Wales the Foreign and Commonwealth Office – ensures are completed and then affixed to the public document before recording the apostille in its register.18 Between its contracting States, the Apostille Convention thus allows foreign notarial authentic instruments (and other qualifying public documents) to demonstrate the authenticity of their signatures, the capacity in which the signatories acted and the identity of the seal of the notary who drew it up. The Apostille Convention is however limited in two senses: first, the Convention does not make it mandatory to use the apostille procedure within signatory States, second, the Convention exemption from legalisation does not extend to the content of the public document. Thus, even within signatory States the affixing of an apostille to a notarial authentic instrument does not equip it with the potential to produce probative or executory effects concerning its contents outside the legal system in which it was drawn-up. The apostille only clarifies the status of the sending State’s notary, his seal and the signatures on the ‘public document’ (here a notarial authentic instrument) for the receiving authorities in the receiving State: it does not address the wider issues of the material content of that authentic instrument or whether, and if so how, the probative force or executory force of the sending State authentic instrument may be given effect in the receiving State. Some 10 years after the conclusion of the Apostille Convention, France and Germany (inter alios) decided make further concessions concerning the circulation of public documents inter se: they concluded a bilateral agreement19 15 The apostille was introduced as an alternative to legalisation by The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. This Convention is applicable within all Member States of the EU and also in many other jurisdictions, for details see www.hcch.net/en/instruments/conventions/full-text/?cid=41. Should the Convention not suffice to establish authenticity, traditional forms of legalisation would then be required. 16 As defined in Art 1 of the 1961 Convention. 17 For an example of an apostille see the annex to the 1961 Convention. 18 In the UK see www.gov.uk/get-document-legalised. 19 The 1971 agreement came into force on 1 April 1975: Abkommen zwischen der Bundesrepublik Deutschland und der Französischen Republik über die Befreiung öffentlicher Urkunden von der Legalisation vom 13 September 1971, Bundesgesetzblatt BGBL. 1974 II S. 1075.

Regulation 2016/1191 Promoting the Free Movement of Citizens  95 abolishing  the need for an apostille or other authentication concerning public documents (including notarial authentic instruments) which moved from France or Germany to be ‘used’ in the other.20 Thus a French notarial authentic instrument drawn-up according to domestic French law may – without any legalisation or any apostille requirement – pass into Germany as a public document and be used and treated as such in Germany (or vice versa). As will be seen below, such bilateral arrangements are not uncommon between States, including those that founded the EEC.

VI.  Regulation 2016/1191 Promoting the Free Movement of Citizens by Simplifying the Requirements for Presenting Certain Public Documents in the European Union and Amending Regulation (EU) No 1024/2012 Within the legislative realm of the EU itself, the issue of the circulation of public documents is one that has been traditionally approached in terms of specific provisions included within its private international law Regulations to abolish intra-EU legalisation requirements concerning the judgments, authentic instruments and settlements that circulate across borders due to these Regulations. These abolitions speed the intra-EU circulation of specific types of the public documents (ie judgments and authentic instruments) that the Regulation seeks to allow to circulate.21 These provisions have been supplemented recently by another EU Regulation22 created to remove the need for intra-EU legalisation of many other types of public documents issued by a public authority in one EU Member State which may now circulate in other EU Member States without any need for legalisation. This Regulation has its origins in the wake of the unsuccessful attempts by the European Parliament to persuade the European Commission to propose a European Authentic Act, as discussed above in the introduction.

20 Such ‘use’ is mentioned in Art 1. Though the Agreement makes no express provision for the cross-border transmission of evidentiary effects or enforcement effects, it refers to the ‘use’ of public documents (including authentic instruments) from one State in the other State; that this use includes demonstrations of authenticity may be concluded from the equivalence conferred on qualifying public documents and also by the existence of provisions allowing serious concerns or doubts concerning the authenticity of the public document (Art 7) or the signatures upon it (Art 6) to each be addressed by a review procedure initiated by the authorities of the receiving State. 21 See eg Art 61 of Regulation 1215/2012 the Brussels Ia Regulation. 22 Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012, OJ L 200, 26.7.2016, p 1–136. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R1191.

96  Cross-Border Legal Effects in General Regulation 2016/1191 has applied fully since 16 February 2019 and is intended to simplify the circulation and presentation of public documents that do not already benefit from the intra-EU abolition of legalisation requirements in accordance with EU private international law.23 Thus the new Regulation supplements the specific EU private international provisions that already allow the apostille free/legalisation free intra-EU circulation of certain public documents (eg authentic instruments and judgments) that circulate via the EU private international law Regulations analysed in the following chapters. Regulation 2016/1191 does not change the law concerning the earlier abolition of intra-EU legalisation concerning the enforcement titles capable of circulation via specific private international law provisions, it will however ease the legalisation requirements for other examples of public documents (eg other notarial acts, certified copies and translations) within the EU that are not otherwise suspended because the matter falls within a specific EU private international law Regulation. What Regulation 2016/1191 does not do however is also very worthy of notice: it does not, according to Article  2(4), require that the Member State in receipt shall recognise the content of any incoming foreign public document. As the new Regulation does not seek to extend the existing EU private international law of notarial authentic instruments to cover the material content of such public documents and does not seek to displace the existing provisions of EU private international law Regulations that already dispense with intra-EU legalisation requirements concerning the operation of those instruments, it need not be considered further.

VII.  Producing Private International Law Effects via Foreign Notarial Authentic Instruments: Legalisation Legalisation provides a means by which certain preliminary questions going to aspects of the authenticity of the incoming notarial authentic instrument can be resolved to enable the receiving State to begin the process of considering the 23 Recital 6 of Regulation 2016/1191 records, ‘This Regulation should cover public documents issued by the authorities of a Member State, in accordance with its national law, and the primary purpose of which is to establish one of the following facts: birth, that a person is alive, death, name, marriage (including capacity to marry and marital status), divorce, legal separation or marriage annulment, registered partnership (including capacity to enter into a registered partnership and registered partnership status), dissolution of a registered partnership, legal separation or annulment of a registered partnership, parenthood, adoption, domicile and/or residence, or nationality. This Regulation should also cover public documents issued for a person by the Member State of which that person is a national to attest that that person does not have a criminal record. Furthermore, this Regulation should cover public documents the presentation of which can be required of citizens of the Union residing in a Member State of which they are not nationals when, in accordance with the relevant Union legislation, they wish to vote or stand as candidates in elections to the European Parliament or in municipal elections in their Member State of residence’. Recitals 10 and 11 limit this: the scope of the Regulation is set out in Art 2.

The Circulation of the Legal Effects of Notarial Authentic Instruments  97 nature and extent of any cross-border legal effects that it may be willing to allow to an authentic version of the incoming notarial authentic instrument. If legalisation succeeds in demonstrating the authenticity of the instant notarial authentic instrument, or has been dispensed with by the relevant States, the receiving State can then turn to the subsequent questions of whether it can allow the incoming authentic instrument to produce any legal effects in its legal system based on its domestic probative and or executory force. The way in which these subsequent questions will be approached and answered depends on which of three different possibilities govern the procedure by which it is asked. The three possibilities for the receiving State presented with a foreign notarial authentic instrument concerning which it is requested to allow probative or executory legal effects are: a) the question will be governed by the civil procedure law of the receiving State, unless (b) or (c) displace this possibility b) the question will be governed by that which is required by any operative bilateral arrangement involving the sending and the receiving State, unless (c) displaces this possibility c) the question will be governed by that which is required of both States by multilateral arrangements such as those imposed by the EU Regulations that now constitute EU private international law. As can be seen, the three possibilities are not necessarily entirely mutually exclusive. It is possible that a notarial authentic instrument with a scope that was not exclusively within option (c) could also partially fall within option (b) and/or (a); there is however no need at present to address this scenario. Instead, this chapter explores, albeit in outline, the first and second of the three possibilities. The third option is addressed in detail in subsequent chapters.

VIII.  The Circulation of the Legal Effects of Notarial Authentic Instruments via Domestic Civil Procedure Law As well as providing a procedural route to allow certain types of incoming foreign judgments to produce legal effects within their legal systems, most States that make use of notarial authentic instruments also provide an analogous civil procedure route by which incoming foreign authentic instruments may be received. This possibility is due to the ubiquity of authentic instruments in these legal systems and to the need to provide a way in which that which has been recorded within an authentic instrument, notarial or otherwise, established outside that legal system, can later be received by it and relied upon within it. Considered from the narrow perspective of this book, these procedural routes are often merely of residual importance because many notarial authentic instruments can circulate within

98  Cross-Border Legal Effects in General the EU and EEA via EU Regulations or via the Lugano Conventions. If, however, the EU Regulations and Conventions do not apply, and there is no saving bilateral convention between sending and receiving States, the domestic civil procedure route remains significant. As the domestic procedural routes are predicated on the State of origin’s domestic use of authentic instruments it is unsurprising that in legal systems that make no such use of authentic instruments such direct procedural routes for incoming authentic instruments are usually absent. The English and the Northern Irish legal systems thus have no dedicated domestic procedural mechanisms designed for incoming notarial authentic instruments from outside the UK. Within the UK however, an incoming authentic instrument created in Scotland24 by the registration of a deed containing obligations (plus consents to enforcement) in the Books of Council and Session of the Scottish Court is presently deemed to be a ‘judgment’ by section 18(2)(c) of the Civil Jurisdiction and Judgments Act (CJJA) 1982; after such Scottish registration it may therefore be presented for enforcement (but not for recognition, see section 19(3)(a) of the CJJA 1982) by its creditor in Northern Ireland or England and Wales. The Scottish legal system has no need to deal with incoming intra-UK authentic instruments (as the English and Northern Irish legal systems do not allow their creation) but it does allow foreign authentic instruments to be registered for preservation and execution in the Books of Council and Session of the Registers of Scotland.25 The intra-UK enforcement provisions of the CJJA appear to offer a surprising enforcement possibility for the creditor of a foreign authentic instrument to use the domestic Scottish registration mechanism (which is additional to the possibilities provided by European private international law Regulations and the Lugano Conventions) to enforce a suitably drawn-up and registered non-UK notarial authentic instrument not only within Scotland but also in England and Wales or Northern Ireland following its successful registration in Scotland.26 If this possibility is surprising, it is astonishing that despite Brexit provoking wholesale amendment and repeals of parts of the Civil Jurisdiction and Judgments Act 1982 (as amended) there is no indication in the UK’s 2019 legislative provisions by which Brexit related amendments are, subject to the 2019 EU/UK Withdrawal Agreement, to be effected that after the end of the transition period associated with the Withdrawal Agreement that the UK intends that its departure from the EU will change this (presumably unsuspected) possibility.27 24 Concerning the Scottish authentic instrument see discussion in s I above. 25 Concerning the registration procedures and the exceptions made under Scottish law for foreign documents governed by a non-Scottish law see https://rosdev.atlassian.net/wiki/spaces/CAJR/ pages/119275676/Register+of+Deeds+and+Probative+Writs+in+the+Books+of+Council+and+ Session. 26 See Civil Jurisdiction and Judgments Act 1982 s 18 (7) which bans a judgment on a judgment but is seemingly not triggered by the presentation of a notarial authentic instrument (not a judgment at the relevant time) in Scotland for registration in the Scottish Registers as a prelude to later intra-UK enforcement. 27 See The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 SI 2019 No. 479 www.legislation.gov.uk/uksi/2019/479/memorandum/contents.

The ‘Reception’ of Foreign Authentic Instruments  99 Given constraints of space, this book will only consider the residual laws of the French and German legal systems. This suffices to illustrate how receiving legal systems tend to react to incoming notarial authentic instruments, and thus assists an understanding of the issues for individual legal systems arising from establishing such procedures for foreign authentic instruments. It is important to note that this procedure may go further than the provisions that a legal system usually provides to deal with the mere admission of foreign documentary evidence: in the present context what is discussed is the extent to which additional evidentiary or procedural privileges concerning probative or executory force may be conferred upon the incoming notarial authentic instrument by the receiving State because it is presented and then received in a form which that legal system agrees to regard as an incoming authentic instrument. Again, the point may be made that the incautious and unqualified use of the word ‘recognition’ should be avoided when describing the process by which the receiving legal system, after being satisfied of the ‘authenticity’ of an authentic instrument, decides to confer additional probative and or executory force upon it. The processes relevant to non-contentious authentic instruments do not confer recognition or res judicata effects on the notarial authentic instrument that belong to a contentious final judgment; these reception processes may though seem somewhat analogous to the recognition of a contentious judgment, and may in fact share the name, they occur in the different context of non-contentious justice. Successive uncertainties prevent the non-contentious subject of these procedures from being equated with the different procedures concerning the standardised requirements for deciding whether an incoming judicial decision is to be recognised and treated as res judicata. Whatever may be its domestic probative and executory privileges even the evidence represented by a notarial authentic instrument is uncertain; it depends on that which the notary has permissibly verified. When a foreign notarial authentic instrument with demonstrable authenticity is presented ‘as such’ in a different legal system, it is the nature and extent of the probative and executory privileges that the receiving legal system will confer upon it that are at issue: these issues compass the private international law of notarial authentic instruments. A notarial authentic instrument is not a judgment and the private international law of the former must not be confused with the private international law of the latter.

IX.  The ‘Reception’ of Foreign Authentic Instruments ‘As Such’ by the French and German Legal Systems The discussion that follows assumes compliance with any applicable legalisation or basic authenticity requirements for incoming authentic instruments, as discussed earlier in this chapter. The remaining questions concern how a given legal system decides whether, and if so to what extent, it may accord enhanced probative force or executory force to the presented foreign authentic instrument ‘as such’.

100  Cross-Border Legal Effects in General The French legal system addresses the issue of executory force/enforcement via an exequatur procedure by which the creditor applies via Article 509 CPC to a judge in the Tribunal de Grande Instance to establish the executory force that his foreign notarial authentic instrument may be permitted to enjoy in France. In the French legal system there is no need, and hence no specific legal procedure, for the creditor to seek an exequatur concerning the general probative force of his notarial authentic instrument; arguably however the exequatur procedure required to permit its executory force to be effective in France also comprises a subsumed exequatur for those issues of evidence and probative force necessary to substantiate the enforcement of the negotium of a foreign authentic instrument. If the issue of the probative force of a foreign notarial authentic instrument arises without reference to its enforcement or executory force the nature and extent of that probative force is assessed in terms of the equivalence of the incoming notarial authentic instrument/notarial deed or other public document with a domestic French equivalent. This equivalence must be demonstrated to the satisfaction of the relevant French authorities. The German legal system takes a different approach: it avoids any residual domestic exequatur procedures for foreign authentic ­instruments28 and will not grant them any executory force. The German legal system may however allow the probative force of a foreign authentic instrument to be effective in Germany if a German judge concludes that it is essentially equivalent to a comparable German authentic instrument.

X.  Allowing Domestic Effect Concerning the Probative Force of a Foreign Authentic Instrument Broadly speaking, the French and the German legal systems have reached the same conclusion, albeit by different routes, concerning the probative force of a foreign authentic instrument: subject to any applicable legalisation or apostille requirements, each is potentially willing to accord the incoming foreign authentic instrument the same probative force concerning its evidence as it would accord to an equivalent domestic notarial authentic instrument. Such a demonstration of equivalence is complicated by two preliminary factors. First, though the discussion in this book is concerned only with the sub-set of notarial authentic instruments, the French and German authorities may also be presented with additional foreign documents from the successively wider sets of ‘authentic instruments’ and ‘public documents’. It is thus necessary for the authorities in receipt to decide if that with which they have been presented is a document that, in principle, can merit any conferral of probative force within their State.

28 There may however be bilateral and multilateral provisions that allow both the executory and probative force of a foreign authentic instrument to be effective in Germany.

Allowing Domestic Effect Concerning the Probative Force  101 Second, assuming the first question has been answered affirmatively, and indicates that the document emanated from a person called a ‘notary’ in the sending State, it is necessary to consider if the actual document drawn-up and now presented is a qualifying notarial authentic instrument. This second question is complicated by the global diversity of the profession of notary and by the diverse roles and competencies of such notaries:29 it cannot be presumed that all documents emanating from a person called ‘a notary’ in the State of origin are therefore either ‘notarial authentic instruments’ nor even ‘authentic instruments’ as these concepts are understood in the French and in the German legal systems.30 Assuming however that the demonstrations of equivalence required by either receiving legal system are satisfied, the authorities in the receiving State must then decide to what extent they will accord probative force to the incoming document ‘as such’ by treating its notarially verified evidence as contained in an incoming notarial authentic instrument rather than merely as foreign documentary evidence: this last part of the enquiry is very specific to the circumstances of the instant matter, and to the requirements of the creditor. It may be that there is no need for enhanced probative force to be found, even though the authorities would be willing to confer it, because the admission of the foreign authentic instrument as ‘mere’ documentary evidence will suffice to support the creditor’s purposes.31 On the other hand, it may be that without a finding of equivalence allowing the evidence in the foreign notarial authentic instrument to be received ‘as such’ it will lack the evidential presumptions required to support the creditor’s specific purpose of so presenting it. To benefit from this enhanced possibility, the foreign notarial authentic instrument must comply with the particular means of demonstrating sufficient equivalence between the incoming notarial authentic instrument and an equivalent notarial authentic instrument from France or Germany as appropriate. In France Article 509 CPC offers a procedural means of requesting an ­exequatur from the French court (Tribunal de Grande Instance) concerning, inter alia, the probative force of, inter alia, a foreign authentic instrument: the potential width of Article 509 CPC is considerable.32 Though the French court may be approached for

29 Even within the large subset of the Latin notariat (see www.uinl.org/member-notariats) it is not the case that everything the notary does concerning a document therefore creates an authentic instrument. 30 Though arguably an incoming English notarial act in public form might easily be mistaken for an authentic instrument by a civil law legal system, in many circumstances harmlessly, the mistake is in one sense technically as real as to regard an incoming ‘notarised’ agreement from New York State notary as equivalent with a civil law authentic instrument. It is not suggested that because it is not an authentic instrument either document is therefore without use in the receiving State; it may be for certain evidential purposes the notarial intervention by a ‘common law notary’ will suffice entirely, these circumstances are however outwith the scope of this book. 31 See P Mayer and V Heuzé, Droit International Privé 11th edn (Paris, LGDJ, 2014) para 495 at 345. 32 For example, it has been held, not without controversy, by the French Cour de Cassation that an Art 509 CPC exequatur application is possible for an incoming American order related to a US ‘Chapter 11’ bankruptcy application merely signed by a judge and clerk in chambers; Cour de Cassation Ch. civ 1, du 17 octobre 2000 N° 98-19913. The decision, which quashed the decision of the lower

102  Cross-Border Legal Effects in General such an exequatur, it has been held by the Cour de Cassation that probative force may be conferred without such a formal procedure.33 For probative force alone (ie not accompanied by a request for cross-border enforcement) this may involve a relatively ad hoc demonstration of equivalence between the foreign authentic instrument and a French equivalent.34 If this succeeds, the probative force of the evidence in a foreign authentic instrument may, depending on the circumstances, be allowed enhanced cross-border effectiveness ‘as such’, ie potentially equivalent to a French notarial authentic instrument. The determinative points of equivalence relative to an authentic instrument are now located in Article 1369 of the Code Civil35 which, in short, declares the French position that an authentic instrument is one that has been received by a public official who has the power and the competence to draw it up. If it is possible to convince the relevant French court or other authorities that the foreign authentic instrument now presented has been received from an equivalent public official36 with both the domestic power and competence to draw-up such an authentic instrument, its evidence may, in principle, be accorded such equivalent probative force in France as it would have in the place of drawing-up.37 The qualification in the previous sentence is necessary to indicate that as the issue is one of equivalence there are potentially two restrictions on the extent of the probative force that may be conferred on a foreign notarial authentic instrument; equivalence cannot require the French authorities to grant a higher level of probative force than the incoming instrument would domestically enjoy, and equally the probative force of the incoming authentic instrument should not exceed that which French law allows.

court to refuse to contemplate the exequatur of such an in chambers order, in part records, ‘Attendu que constitue une décision pouvant recevoir exequatur toute intervention du juge qui produit des effets à l’égard des personnes ou sur les biens, droits ou obligations’ (roughly, ‘any intervention of the judge which produces effects regarding the persons or on the goods, rights or obligations, is a decision can receive exequatur [via Art 509 CPC]’). This still current decision is discussed further by P Callé, L’acte public en droit international privé 1st edn (Paris, Economica, 2004) para 635, with references, also see L Cadiet, Code de procédure civile (Paris, LexisNexis, 2018) note 2, at 415. 33 See Cour de Cassation ch civ 3, du 5 avril 1968, Bull Civ III n° 161, p 127. 34 For further discussion see Callé (n 32) at paras 598–615, on 313–21. 35 Previously in Art 1317 of the old Code Civil – on this issue the 2016 reforms introduced no relevant textual changes. 36 See Chambéry 18 Décembre 1901, JDI 1902. 790 cited by Callé (n 32) fn 4, at 316 in which the French court refused to treat an act of sale of land (acte de vente) notarised by an American notary public as having equivalent probative force as a domestic French authentic instrument because the American document was not treated as ‘self-proving’ where it was drawn-up and hence did not produce the necessary equivalence with a French authentic instrument to allow the subsequent conferral of the French probative force of a French authentic instrument; the American document was admissible as private writing but nothing more than that. 37 See Callé (n 32) para 620, at 323 on the issues of notarial equivalence between US notaries and French notaries. See M Revillard’s case note on A Viénot c, D Beaussier, Cour de Cassation (1st Ch. Civ.) – 23 mai 2006 Rev. crit. DIP [2006] 841, the French court was willing to treat an election concerning matrimonial property made before a US notary public by French nationals, then living in New York, as validly surrendering the Husband’s share of real property in Paris to his then wife despite non-compliance with the domestic French requirement that such an act be before a notaire.

Allowing Domestic Effect Concerning the Probative Force  103 In Germany the demonstration of equivalence to found enhanced probative force for a foreign authentic instrument is more formal but still somewhat ad hoc: the German court is accorded a discretion by § 438 ZPO as to how it decides whether a foreign document is to be regarded as authentic without further proof; this discretion has however been somewhat constrained by the higher German courts which have laid down various questions that a court facing such a request should ask. As well as the abovementioned apostille or legalisation compliance the German courts will confer probative force within Germany for a foreign authentic instrument if there is a satisfactory demonstration of equivalence (Gleichwertigkeit) between the education and domestic function of the particular foreign notary and a hypothetical German notary.38 This equivalence requirement reflects a concern that a person who may properly be called a notary in a foreign legal system should not therefore be allowed to facilitate cross-border evidentiary effects ‘as such’ in Germany via §438 ZPO unless he also has an educational and functional equivalence with a German notary, the equivalence is considered in relation to three questions:39 a) is the foreign notary educated in a manner equivalent with a German notary?40 b) does the foreign notary occupy a position in his legal system equivalent to the position of a German notary in the German legal system? c) does the foreign notary follow a procedural law which is equivalent in relation to the major points of German procedural law concerning the process of authentication? If these equivalences are demonstrated to the satisfaction of the receiving court, the evidence in the foreign authentic instrument will be accorded equivalent probative force as if it had been presented in a hypothetical German notarial authentic instrument; otherwise the evidence in the foreign authentic instrument will be mere written documentary evidence, lacking any enhanced evidential or probative force attributable to having been included in a foreign notarial instrument.

38 See Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) volume 80, page 76. 39 See BGHZ 80, 76. 40 See Council of the Notariats of the European Union, (2008) Comparative Study on Authentic Instruments, National Provisions of Private Law, Circulation, Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union. United Kingdom, France, Germany, Poland, Romania and Sweden. European Union, IP/C/JURI/IC/2008-019 www.europarl.europa. eu%2FRegData%2Fetudes%2FSTUD%2F2008%2F408329%2FIPOL-JURI_ET(2008)408329_ EN.pdf&usg=AOvVaw2NhnJcFALfOVJxuJsAF-z4, 103 and n 308 where repeated refusals by the German courts to equate US notaries public with German civil law notaries are noted, eg in OLG Stuttgart DB 2000, 1218. The difficulty is that a US notary public need not have any legal education. The domestic legal function of a US notary public is also very different and restricted if compared to the functions of a French or German notary.

104  Cross-Border Legal Effects in General

XI.  Allowing Domestic Effect Concerning the Executory Force of a Foreign Authentic Instrument It will be recalled that there is no residual domestic possibility for the cross-border enforcement of a foreign authentic instrument – notarial or otherwise – in the German legal system. This is a consequence of the omission of any provision that allows any such exequatur process for an authentic instrument from the German code of civil procedure – the Zivilprozessordnung.41 Though §722 ZPO provides for the exequatur of a foreign judgment, it does so in a manner that leaves little room for doubt that this does not include other foreign decisions or authentic instruments.42 §722 ZPO only refers to, ‘Urteil eines ausländischen Gerichts’ (‘judgment of a foreign court’), and thereafter only to ‘judgments’.43 It thus seems clear that there is no residual German law to allow a declaration of enforceability concerning a foreign authentic instrument: if there is a foreign authentic instrument but no foreign judgment, it can only be enforced in Germany via a bilateral/ multilateral convention or via an EU private international law Regulation. The French legal system does however have a residual exequatur provision that allows the creditor to potentially exploit the executory force of a foreign notarial authentic instrument in France. The procedure is governed by Article 509 of the Code of Civil Procedure which reads: Article 509 CPC Les jugements rendus par les tribunaux étrangers et les actes reçus par les officiers étrangers sont exécutoires sur le territoire de la République de la manière et dans les cas prévus par la loi. 41 Given the differences and difficulties concerning the question of the nature and requirements for the domestic enforcement of notarial authentic instruments across the German länder in the latter stages of the nineteenth century it may be that this omission from the ZPO seemed politic. Some of the many bilateral and multilateral means of achieving the enforcement of a foreign authentic instrument in Germany are discussed in the following section. 42 R Geimer has argued in a manner that must, with respect, be considered somewhat ‘Quixotic’ that the word ‘judgment’ in §722 ZPO should and could be interpreted widely enough to include foreign authentic instruments, thereby allowing a residual exequatur for the same in German domestic law. He summarises his argument in English on p 48 of R Geimer, ‘The Circulation of Notarial Acts and their Effect in Law’, XXIII International Congress of Latin Notaries Report of the German Delegation (‘the Geimer Report’), 24, n 38, www.bnotk.de%2F_downloads%2FUINL_ Kongress%2FAthen%2FGEIMER_ENGLISH.pdf&usg=AOvVaw2iYC09vV32gn1XCC5j36nb. Geimer’s admitted minority view is not shared by the majority of commentators, see J Kindl, §722 ZPO p 1639 note 8 in I Saenger, ZPO NomosKommentar 7th edn (Münster, Beck, 2017); C Seiler and R Hüßtege, §722 ZPO note 5 p 993 in Thomas Putzo, ZPO Kommentar 38th edn (Munich, CH Beck, 2017). 43 § 722 ZPO (1) Aus dem Urteil eines ausländischen Gerichts findet die Zwangsvollstreckung nur statt wenn ihre Zulässigkeit durch ein Vollstreckungsurteil ausgesprochen ist. § 722 ZPO (2) Für die Klage auf Erlass des Urteils ist das Amtsgericht oder Landgericht, bei dem der Schuldner seinen allgemeinen Gerichtsstand hat, und sonst das Amtsgericht oder Landgericht zuständig, bei dem nach § 23 gegen den Schuldner Klage erhoben werden kann. (English translation: Section 722 ZPO Enforceability of foreign judgments (1) Compulsory enforcement may be pursued under the judgment of a foreign court if such compulsory enforcement is ruled admissible by a judgment for enforcement. (2) That local court (Amtsgericht, AG) or regional court (Landgericht, LG) shall be competent for entering the judgment on the complaint filed for such judgment with which the debtor has his general venue, and in all other cases, that local court or regional court shall be competent with which a complaint may be filed against the debtor pursuant to section 23.)

Allowing Domestic Effect Concerning the Executory Force  105 English translation: Judgments handed down by foreign courts and public instruments drawn up by foreign officials shall be enforceable on the territory of the French Republic in the manner and in the circumstances provided for by law.

This basic provision of French civil procedure founds, inter alia, the residual possibility of granting a declaration of enforceability for a foreign notarial authentic instrument by a domestic exequatur procedure.44 The key limitation is that only the evidentiary effects of the foreign authentic instrument, which may include its enforceability, are concerned by the Article  509 CPC exequatur procedure: the exequatur does not extend to a declaration of enforceability concerning the substantive content of the authentic instrument, such issues cannot be resolved by an exequatur; they must be agreed between the parties or, if disputed, decided by a court ‘on the facts’.45 The exequatur application is made to the Tribunal de Grande Instance. In addition to the proof of authenticity provided by an apostille or by any other applicable legalisation requirements, the court requires that two further matters be demonstrated if it is to grant the application for exequatur and allow the foreign authentic instrument to be enforced ‘as such’ in France: first, the authentic instrument must be possessed of such executory force in its legal system of origin; second, the grant of exequatur must be compatible with French international ordre public.46 Neither condition will usually be unduly onerous for the creditor. Assuming the legal system of origin knows of enforceable authentic instruments, and that the instant authentic instrument has been imbued with such domestic executory force prior to being produced in France, it should be simple to satisfy the first condition. Equally, the second condition should rarely pose problems for the creditor most commonly seeking to recover sums of money for breaches of obligation. That said it was in 1829 held to be impossible to use a French authentic instrument to enforce foreign gambling debts within France, this being contrary to French l’ordre public.47 Droz and Callé have each suggested that it could be equally impossible, because of the violation of French l’ordre public to receive an exequatur to allow the enforcement of a foreign authentic instrument in France in comparable circumstances.48 44 See Callé (n 32) para 635 at 331 who cites the abovementioned widely drawn decision of the Cour de Cassation concerning that which may be the subject of an exequatur in France under the French droit commun. Cour de Cassation Ch. civ 1, du 17 octobre 2000 N° 98-19913. (2001) 121 Revue critique de droit international privé, notes by JP Rémery and by H Muir-Watt. 45 Callé (n 32) at para 657 and the large body of doctrine to this end cited in fn 1 on 340. This interpretation of the legal position has been confirmed, albeit in a case falling under Article  50 of the Brussels Convention, by the Cour d’Appel d’Aix en Provence. See Soc Frahuil v M. Astier, Banco Espanol de Credito et autres, 2 mars 2000 reported in (2001) 90(1) Revue critique de droit international privé 163 with following note by G Légier at 168, which at 171 enumerates that which may be declared enforceable. 46 See Callé (n 32) at para 654 at 339 and H Gaudemet-Tallon Competence et execution des jugements en Europe 4th edn (Paris, LGDJ, 2010) ch 4. 47 See Paris 25 Juin 1829, S. 1829.2.341 cited by G Droz, Compétence Judiciaire Et Effets Des Jugements Dans Le Marché Commun (Paris, Dalloz, 1972) 393, fn 2. 48 The modified example is found in G Droz, ‘L’Activité Notariale Internationale’ (1999) 280 Recueil Des Cours para 133 at 125 and is used by Callé (n 32) at para 658.

106  Cross-Border Legal Effects in General Assuming however that the French court is satisfied by the responses to the questions noted above, it will grant the exequatur and the executory force of the foreign notarial authentic instrument will be given cross-border legal effect in France, in accordance with the exequatur granted, as a ‘titre exécutoire’ within the meaning of Article L 111-3 (2) CPCE such that actual enforcement may then proceed.

XII.  The Circulation of the Legal Effects of Notarial Authentic Instruments via Bilateral Conventions between Founding Member States of the EEC Though the French and the German legal systems both possess a residual ability and willingness, if sufficient equivalence can be demonstrated, to receive a foreign authentic instrument and to accord it a similar probative force to a domestic notarial authentic instrument, it is frequently the case that the foreign authentic instrument is instead presented subject to a bilateral convention. During the latter stages of the nineteenth century and during the twenteith century many States sought to facilitate the circulation of their civil and commercial judgments via bilateral conventions which allowed for the recognition and enforcement of judgments on a reciprocal basis.49 In the course of drafting provisions to allow for this primary possibility, other less important but related legal concepts (eg authentic instruments, arbitral awards and settlements) were ­sometimes also included in the convention. Inclusion had to be consonant with the reciprocity underpinning the particular bilateral treaty; ie each contracting party

49 See the publication by the Council of Europe, The Practical Guide to the Recognition and Enforcement of Foreign Judicial Decisions in Civil and Commercial Law 1st edn (Strasbourg, 1975) (hereafter Practical Guide) which reprints a number of the bilateral treaties and conventions of which the following are the most relevant to this subject of study: Convention Entre La France et La Belgique sur la compétence judiciaire, sur l’autorité et l’exécution des décisions judiciaries, des sentences arbitrales et des actes authentiques 8.7.1899 (p 211); Convention Entre La Belgique et Les Pays-Bas (Netherlands) sur la compétence judiciaire territoriale, sur la faillite, ainsi que sur l’autorité et l’exécution des décisions judiciaries, des sentences arbitrales et des actes authentiques 28.3.1925 (p 218); Convention Entre La France et L’Italie sur l’exécution des jugements en matière civile et commerciale 3.6.1930 (p 256); Convention Entre La Belgique et la Republique Federale d’Allemagne Concernant la reconnaissance et l’exécution réciproque en matière civiles et commerciale, des décisions judiciaries, sentences arbitrales et actes authentiques 30.6.1958 (p 330); Convention Entre Belgique et Italie concernant la reconnaissance et l’exécution des décisions judiciaries et d’autres titres exécutoires en matière civiles et commerciale 6.4.1962 (p 424); Convention Vertrag über die gegenseitige Anerkennung und Vollstreckung gerichtlicher Entscheidungen und anderer Schuldtitel in Zivil und Handelssachen, 30.8.1962 (p 429). Additionally see Vertrag Über Rechtsschutz und Rechtshilfe Zwischen Dem Deutschen Reiche und Der Republik Österreich, Gezeichnet in Wien am 21.Juni 1923, League of Nations Treaty Series Vol XXVII (1924) N°668 p 58. https://treaties.un.org/pages/Content.aspx?path=DB/LoNOnline/ pageIntro_Table_en.xml.

The Circulation of the Legal Effects of Notarial Authentic Instruments  107 had to domestically feature the concept50 and to do so in a sufficiently similar manner to the other.51 Since the coming into force on 1 February 1973 of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters between the original six signatories,52 the bilateral conventions mentioned below are of residual significance as most of the matters they concern are now regulated by subsequent provisions of EU private international law. The bilateral arrangements are however still technically in force and may be relevant if a foreign authentic instrument wholly or partially outside the scope of the EU provisions is presented. That the bilateral conventions in question were principally concerned with the recognition and enforcement of judgments is discernible from their titles and structure. The convention provisions concerning the cross-border enforcement of authentic instruments (it is less common but not unknown for the authentic instruments in these bilateral provisions to be mentioned in tangential connection with recognition)53 are separated from the provisions concerning judgments and always come after the judgment provisions. The typical effect of such a bilateral convention on an authentic instrument is to allow its enforcement in the other State, subject to an exequatur application which the creditor must make to a judicial authority in the receiving State seeking a confirmation from it that the incoming authentic instrument is authentic/enforceable where it was drawn up and can therefore be allowed to produce the legal effects in the receiving State permitted by the relevant convention. This may be illustrated with reference to an early example of such a bilateral arrangement: according to Article 16 of the Convention du 8 juillet 1899 entre la Belgique et la France sur la compétence judiciaire, sur l’autorité et l’exécution des décisions judiciaires, des sentences arbitrales et des actes authentiques, Art 16. Les actes authentiques, éxecutoires dans l’un des deux pays peuvent être déclarés exécutoires dans l’autre par le présedent du tribunal civil de l’arrondissement oȕ l’exécution est demandée. 50 The Convention of 14.7.1960 between the Federal Republic of Germany and the United Kingdom for the reciprocal recognition and enforcement of judgments in civil and commercial matters, see Practical Guide (n 50) 372 does not mention authentic instruments. 51 Thus, the bilateral convention between Germany and Switzerland of 2 November 1929 does not feature authentic instruments, despite both States featuring the legal institution: prior to the Lugano Convention of 1988 the Swiss authentic instrument could only be domestically enforced with prior judicial permission: see the Convention of 2.11.1929 between the Federal Republic of Germany and Switzerland concerning the recognition and execution of judicial decisions and arbitral awards, reproduced in Practical Guide (n 50) 252. 52 See Art 55 (as amended) of the 1968 Brussels Convention (consolidated) at https://curia.europa. eu/common/recdoc/convention/fr/c-textes/brux-idx.htm. 53 Recognition of authentic instruments (and other enforceable titles) is however required by Art 16(1)(b) of the Convention between the Netherlands and Federal Republic of Germany Concerning the reciprocal recognition and enforcement of judicial decisions and other executory instruments in civil and commercial matters. Signed at The Hague on 30 August 1962, (1965) UN Treaty Collection Vol 547 No. 7957 at 186–87 (204 in translation).

108  Cross-Border Legal Effects in General Ce magistrat vérifie si les actes réunissent les conditions nécessaires pour leur authenticité dans le pays oȕ ils ont été reçus et si les dispositions dont l’exécution est poursuivie n’ont rien de contraire à l’ordre public ou aux principes de droit public du pays oȕ l’exequatur est requis.54

The applicant creditor must petition the President of the civil court in the district in which he wishes to enforce the authentic instrument to request his permission to enforce it in the receiving State. The relevant president must verify that the authentic instrument meets the conditions necessary for its authenticity in the country where it was received/drawn-up, and that the requested execution would not be contrary to either public policy/l’ordre public or contrary to the principles of public law of his country.55 Assuming the president is convinced, the Belgian or French authentic instrument will be declared additionally enforceable throughout all of either France or Belgium.56 The Article  16 procedure of the 1899 Convention allows a French authentic instrument to produce legal effects in Belgium (and vice versa) subject to a public policy exception and a ‘public law principles’ exception in the receiving State. As authentic instruments are ubiquitous in each, then very similar, legal system, and the scope of the 1899 Convention is somewhat contestable, Article 16 presents a potentially significant opportunity for French authentic instruments to be enforced in Belgium (and vice versa). In the context of mortgages over immoveable property this could be problematic as at the time of the Treaty each legal system restricted the possibilities of concluding or enforcing a valid mortgage over immoveable property from outside its own legal system: thus according to Article 546 of the ‘old’ Napoleonic Code of Civil Procedure57 a foreign judgment or foreign act (eg a notarial authentic instrument) concerning such a mortgage could only be received and enforced in France if it complied with Article 21285858 of the original French Code Civil

54 See Practical Guide (n 50) 211 at 214. The author’s rough translation is: ‘Art 16. Authentic instruments, which are enforceable in one of the two countries, may be declared enforceable in the other by the president of the civil court of the district where enforcement is sought. This magistrate verifies whether the acts meet the conditions necessary for their authenticity in the country where they were drawn-up and that the provisions whose execution is pursued are not contrary to l’ordre public or the principles of public law of the country where the exequatur is required’. 55 Though the reference to public policy is not surprising, the reference to principles of public law, which is copied over from Art 11 (1) of the Convention which deals with judgments and thus not specific only to authentic instruments, may strike the modern reader as odd: it is probably best understood as a provision intended to control the scope of the Convention. 56 Art 18 applies the President’s decision throughout the whole country but allows an appeal against that decision. 57 See Art 546 in Code de procédure civile, annoté d’après la doctrine et la jurisprudence avec renvois aux ouvrages de MM Dalloz, publié sous la direction de G Griolet, C Vergé, and H Bourdeaux, 13th edn (Paris, 1913) 165 from gallica.bnf.fr. 58 This provision on mortgages of the old Code Civil (and Art 2020 which excluded the French law of ship mortgages from the ‘land-based’ mortgage restrictions) has, together with many other related provisions, since been deleted from the French Code Civil: the current provisions on the attachment of

The Circulation of the Legal Effects of Notarial Authentic Instruments  109 which, in turn, provided that a mortgage contract made outside France could not concern French immoveable property unless the contrary was provided by ‘les lois politiques’ or by a treaty: clearly Article 17 is such a treaty provision and it is designed to allow the reciprocal enforcement of cross-border mortgages between these two closely related legal systems. Article 17 of the 1899 Convention attempted to deal with some of these issues, but it created new issues arising from the new possibilities not just concerning cross-border priorities and enforcement, but also concerning associated registration requirements that now might, confusingly, be spread across two different legal systems. If Article 16 would arguably allow a Belgian mortgage contained in a Belgian authentic instrument to be enforced over immoveable property located in France, Article 17 required that for this type of Belgian authentic instrument to be effective and enforceable in France its creditor must first apply to the President of the French civil court of the district in which the immoveable property was situated to ask that he declare that the relevant stipulations in the Belgian authentic instrument mortgage were also enforceable in France on the basis that he was satisfied that the Belgian authentic instrument and the proxies (or powers of attorney) by which it is accompanied all also complied with Belgian authenticity requirements. Without so complying with Article  17 the creditor cannot enforce an authentic instrument concerning such a ‘split mortgage’ via the 1899 Convention. Article 17 is an early attempt to address the possibly surprising consequences of allowing the cross-border enforcement of a wide range of notarial authentic instruments in the course of a convention mainly designed to facilitate the crossborder movement of judgments; though a notary’s geographical area of practice is constrained by the terms of his admission to the profession, the authentic instruments he draws up are not subject to the principles of international jurisdiction that define the actions and limit the functions of contentious law and decisions concerning immoveable property (and equivalent legal concepts) located in other legal systems.59 Although it adopts a very similar approach towards the cross-border enforcement of Belgian or Dutch authentic instruments in its own Article 16 provisions, the later Convention Entre La Belgique et Les Pays-Bas sur la compétence judiciaire territoriale, sur la faillite, ainsi que sur l’autorité et l’exécution des décisions judiciaries, des sentences arbitrales et des actes authentiques of 28 March 1925 takes a more sophisticated approach to the wider issues arising from allowing cross-border split mortgages. Thus in its own Article 17 provisions, presumably

immoveable property are now incorporated in heavily modified form in Art L 311-1 of the Code des procédures civiles d’exécution. 59 For another illustration of the lack of international jurisdiction concerning enforceable notarial authentic instruments in the context of the Brussels Convention of 1968, see N.V. Sunclass Sonnevijver v B.J. Westerveld (judgment of 26 September 1980) Rechtbank van Eerste Aanleg, Tongeren, Répertoire de jurisprudence de droit communautiare Digest I-50, also discussed in ch 4.

110  Cross-Border Legal Effects in General motivated by similar domestic legal issues, not only cross-border enforceability but also cross-border registration each require a successful application to the relevant district court president for a declaration of enforceability in the place in which the property is located; the same is also required if the original mortgage should be voluntarily reduced or cancelled.60 Similar requirements concerning general enforceability and split mortgage enforceability are also present in Articles 6 and 7 respectively of the Convention sur 1’exécution des jugements en matière civile et commerciale signed by France and Italy in 1930.61 The equivalent bilateral conventions concluded between the other soon to be EEC Member States after the Second World War are differently drafted and tend to make less expansive provision for the cross-border potentialities of authentic instruments: they allow (in the sense of not forbidding) the cross-border enforcement of enforceable authentic instruments, subject to a long-stop public policy exception, but do not attempt to deal explicitly with split mortgages.62 Thus, Article 14(1) of the 1958 Convention Entre La Belgique et la Republique Federale d’Allemagne Concernant la reconnaissance et l’exécution réciproque en matière civiles et commerciale, des décisions judiciaries, sentences arbitrales et actes authentiques allows the cross-border enforcement of an incoming authentic instrument that has been shown to be enforceable in the sending State during an exequatur procedure in the receiving State under Article 14(2).63 There are no supplementary provision concerning split mortgages. The only basis to refuse the exequatur application for a demonstrably enforceable incoming authentic instrument is that it is contrary to the public policy of the receiving State.64 The 1959 Convention between Netherlands and Italy on the recognition and enforcement of judicial decisions in civil and commercial matters is similarly structured to the 1958 Convention above; its Article  8 makes the same provisions for incoming enforceable authentic instruments between the two parties.65 The 1962 Convention between Belgium and Italy of 6 April 1962 concerning the recognition and enforcement of judicial decisions and other enforceable 60 See Practical Guide (n 50) 218 and Art 17 at 222 also as League of Nations Convention N° 2131 Société Des Nations Recueil des Traités (1929–30) Vol XCIII 431 at 439 and in translation at 447. 61 See Art.  6 and 7 in Practical Guide (n 50) 256 also as League of Nations Convention N° 3513 Société Des Nations Recueil des Traités (1934) Vol CLIII 135 at 141 and in translation at 142. 62 Presumably because either the issue did not arise or did not arise in a manner consonant with reciprocity. 63 See Practical Guide (n 50) 330 and 334 for Art 14 also as United Nations Convention N°5566 Recueil des Traités (1961) Vol 387 Convention Entre La Belgique et la Republique Federale d’Allemagne Concernant la reconnaissance et l’exécution réciproque en matière civiles et commerciale, des décisions judiciaries, sentences arbitrales et actes authentiques 30.6.1958 at 245 and in translation at 267. 64 It may however be significant that the provisions defining the scope of the convention for judicial decisions would not allow a Belgian court to recognise a German judicial decision concerning land (or a claim concerning it) situated in Belgium (or vice versa), see Art. 3(1) 7 and 3(2). 65 See Practical Guide (n 50) 346 and art 8 at 349 also United Nations Convention N°6883 Recueil des Traités (1963) Vol 474 Convention between Netherlands and Italy on the recognition and enforcement of judicial decisions in civil and commercial matters (with Protocol of signature) Rome 17 April 1959 at 207 and in translation at 209.

The Circulation of the Legal Effects of Notarial Authentic Instruments  111 instruments in civil and commercial matters66 is even more restricted concerning notarial authentic instruments as Article  13 only allows their cross-border enforcement if they contain an enforceable contract: the cross-border enforcement of such an authentic instrument is also subject to the additional requirement that the notary who drew-up the authentic instrument must provide an attestation that the ‘contract’ within it is domestically enforceable. The 1962 Treaty concerning the reciprocal recognition and enforcement of judicial decisions and other executory instruments in civil and commercial matters between Germany and the Netherlands follows the general trend of allowing, via Article 16(1)(b), the cross-border enforceability of (inter alia) domestically enforceable notarial authentic instruments from the sending State subject to an exequatur in the receiving State and subject to a public policy exception in Article 2(a).67 On the other hand, the Germany–Netherlands Treaty also of 1962, but signed later in the year, is interesting for various reasons. First, it applies to a very wide category of authentic instruments, Article 16(1)(b) applies to: andere öffentliche Urkunden, insbesondere gerichtliche oder notarielle Urkunden sowie Verpflichtungserklärungen und Vergleiche, die in Unterhaltssachen von einer Verwaltungsbehörde – Jugendamt – aufgenommen worden sind.68

Thus, this Treaty allows the enforcement of a much wider range of authentic instruments than the 1962 Belgian Italian Convention (above). Second, the 1962 Germany–Netherlands Treaty is drafted to require not just the cross-border enforcement of authentic instruments but also the cross-border recognition of these instruments: though it is not uncommon in such provisions to encounter references to ‘recognition’ that apparently extend to include authentic instruments,69 it was and is a departure from the domestic civil procedure of Germany on such matters.70 Third, the 1962 Germany–Netherlands Treaty contains the most comprehensive attempt within the bilateral arrangements examined above to lay down a proper common procedure for the exequatur court to follow; in this

66 See Practical Guide (n 50) 425 and United Nations Convention No. 7161. Convention between Belgium and Italy concerning the recognition and enforcement of judicial decisions and other enforceable instruments in civil and commercial matters. Signed at Rome, on 6 April 1962 Recueil des Traités (1964) Vol 490 N° 7161 p 317 at 328 and in translation at 329. 67 See Practical Guide (n 50) 429 and United Nations Convention N° 7957. Treaty concerning the reciprocal recognition and enforcement of judicial decisions and other executory instruments in civil and commercial matters. Signed at the Hague, on 30 August 1962 Recueil des Traités (1965) Vol 547 N° 7957 p 173 at 187 and in translation at 204. 68 German – Netherlands Treaty 1962 Art 16(1)(b), supra, the UN English translation, supra, reads, ‘other authentic acts, in particular judicial or notarial acts, as well as acknowledgments of indebtedness and settlements drawn up by an administrative authority (Youth Office (Jugendamt)) in matters relating to maintenance’. 69 The width of the class of authentic instruments covered by this Treaty, and the difficulty of finding a word to adequately describe what was intended may be the reason for the reference to ‘recognition’ in this instance. 70 For the German procedural law see ss X (probative force) and XI (executory force) above.

112  Cross-Border Legal Effects in General respect it appears likely that aspects of this 1962 Treaty influenced the later drafting of what would later become the Brussels Convention. This brief account of the relatively uncoordinated attempts of founder EEC Member States71 to provide for the cross-border enforceability of judgments and notarial authentic instruments inter se on a bilateral basis shows that authentic instruments certainly can be provided with the ability to create a variety of noncontentious legal effects outside the place in which they have been drawn-up. It also however indicates that by allowing such cross-border legal effects via differently drafted provisions, mainly derived from provisions intended to allow the circulation of contentious judgments, the drafters run the risk of creating a complex tangle of conventions that allow cross-border enforceability for authentic instruments without distinguishing consistently between the legal principles concerning judgments and authentic instruments as contentious and non-contentious legal institutions. The difficulties arising from muddling the provisions and terminology concerning non-contentious authentic instruments and contentious judgments in a context in which each may be enforced across borders become particularly clear when split mortgages are considered. Unlike an enforceable final judgment, an enforceable notarial authentic instrument may be drawn-up in a place and by a notary that both lack anything that contentious practice would regard as international subject matter jurisdiction over the land at issue; yet when such an authentic instrument is produced for cross-border enforcement against the debtor this enforcement, though in many senses just as real as the enforcement of a judgment, is characterised by the disapplication of private international law’s normal policies of requiring recognition to precede enforcement and of leaving disputes over immoveable property to be determined exclusively in the forum in which that property is located. The technical subtleties that: a) one does not recognise authentic instruments (unless and to the extent that the convention says otherwise); and, b) that there is no need for international subject matter jurisdiction because there is no dispute over the immoveable property in the context of the cross-border enforcement of a notarial authentic instrument over foreign land as, at the point at which it was drawn-up, the parties were recorded as being in agreement on all matters (including this enforcement), offer little comfort to the awkwardly situated debtor potentially facing the dual difficulty of challenging the cross-border enforcement via the convention in State ‘B’ and also the authentic instrument itself in State ‘A’ (the place in which it was drawn-up).

71 Bilateral arrangements involving a founder EU State and a future EU Member State are numerous, see UNTC No. 10710 France et Espagne, Convention sur la reconnaissance et l’exécution des décisions judiciaires et arbitrales et des actes authentiques en matière civile et commerciale. Signée à Paris le 28 mai 1969. Also UNTC No. 25941 Espagne et République Fédérale D’Allemagne, Convention relative à la reconnaissance et à l’exécution des décisions ou transactions judiciaires et des actes publics ayant force exécutoire en matière civile et commerciale (avec déclaration). Signé à Bonn le 14 novembre 1983.

Conclusion  113 That split mortgages merited specific provision in the early conventions involving French and French-influenced legal systems is suggestive of a reluctance to blindly refuse to tolerate or enforce contracts over ‘land’ that were, quite possibly fortuitously and without any abusive intent, drawn-up outside the State in which the ‘land’ was located. Indeed, this could happen because of domestic legal requirements in the place of drawing-up. Though it is possible for closely related legal systems that each espouse a policy in their domestic legislation to then continue it in their bilateral relations, eg via the convention provisions for split mortgages, this is not inevitable. The attempt to vary domestic law by convention indicates that the respective domestic policies were problematic in unobjectionable examples of cross-border practice and further that the convention drafters sought to remedy the split mortgage problem via the cross-border enforceability provisions discussed above.72 For the purposes of this book it is not necessary to delve further into this issue nor to explore whether the cure was more problematic than the disease. Though the later conventions are not drafted to regulate split mortgages (or their related issues) in explicit terms, it cannot therefore be concluded that by the time of drafting such issues as there were had been resolved. It seems more probable that the issues were intractable and incapable of analogous resolution: the later conventions do not forbid such use of authentic instruments, they merely omit the reciprocal mechanisms by which such cross-border arrangements had earlier been facilitated. Accordingly, attempting to use a foreign notarial authentic instrument to conclude a mortgage over land located in a different legal system was left to the creditor’s confidence in the likely reaction of the authorities and courts in the most likely place of enforcement (ie where the land is located) that a convention lacking a specific mortgage provision would allow him to still enforce his notarial authentic instrument.

XIII. Conclusion This outline survey of the provisions of the bilateral treaties and conventions concerning authentic instruments entered into by the founders of the EEC, makes clear that the conventions tend towards a more expansive development of the cross-border potential of authentic instruments than the residual domestic provisions of the French or German legal systems and that they did so by conferring simplified cross-border enforceability via an exequatur application ostensibly limited by only a public policy exception in the receiving State. The grant of

72 See comment and brief discussion of cases appended to Art 546 of old Code of Civil Procedure in Dalloz. Code de procédure civile, annoté d’après la doctrine et la jurisprudence avec renvois aux ouvrages de MM. Dalloz, publié sous la direction de G Griolet, C Vergé, and H Bourdeaux, 13th edn Paris 1913, at 165 from gallica.bnf.fr /.

114  Cross-Border Legal Effects in General such an exequatur allowed the incoming authentic instrument to produce noncontentious enforcement effects and, by implication, the limited non-contentious probative or evidentiary effects necessarily associated with that cross-border enforcement. Subject to a successful exequatur application, a foreign notarial authentic instrument could/can be received and enforced as such in either State party to the bilateral arrangement.

part ii European Private International Law Regulations

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4 Authentic Instruments in the Brussels I Family I. Introduction This chapter considers and analyses the application of the Brussels I ‘family’ of European Union Regulations to the notarial examples of the authentic instruments that fall within its civil and commercial scope: after this introduction the chapter is presented in two sections. Section II considers the general substantive requirements of European private international law concerning the authentic instruments falling within the Brussels I family. Section III sets out the procedures concerning cross-border enforcement for the different constituents of the Brussels I family. The previous chapters set out the basics of the domestic and international operation of notarial authentic instruments in the French and in the German legal systems but excluded EU private international law from this analysis. Differences in history and development between the two legal systems illustrated the importance of appreciating that, in the absence of a uniform harmonised EU version of the authentic instrument, the authentic instruments at issue under the EU private international law Regulations all refer to different ‘national’ conceptions of the authentic instrument as a legal institution and hence also to different understandings of that which a notary properly can and must draw-up as an authentic instrument in any given Member State legal system. Considered in outline the principles and law are similar; considered in detail the laws and practice are not identical. For example, it is assumed in the French legal system that a French notary is not competent to comment on the state of mind of a person who appears before them and thus any statement the notary makes to that effect is not accorded fullproof status; the position in practice in German law is however that the German notary’s recording of their impression in the authentic instrument that a person was of sound mind is usually accorded significant domestic evidential weight. As will be seen, there is a tendency for such subtleties to be ‘smudged’ or sometimes ‘painted-over’ by the broad-brush approach frequently adopted by EU legislators creating law concerning ‘authentic instruments’. The domestic procedures and bilateral arrangements discussed in ­chapter three concerning the cross-border effectiveness of foreign notarial authentic instruments have, mostly, been superseded by the EU’s private international law. This process began with the decision taken by the original six Member States in 1960,

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pursuant to Article 220 EEC, to begin to set up a multilateral convention between themselves to allow an expedited and simplified means by which civil and commercial judgments could circulate freely and be recognised and enforced on uniform terms within the EEC.1 The mechanism provided for this desirable eventuality was the Brussels Convention (the Convention on Jurisdiction and the Enforcement of Judgments of 27 September 1968):2 as well as allowing the cross-border circulation of civil and commercial judgments, it also provided an additional means by which certain civil and commercial authentic instruments and judicial settlements could circulate within other EEC Member States. Though in the context of the cross-border circulation of civil and commercial judgments the drafters of the Brussels Convention sought radical and novel solutions to the traditional obstacles to the cross-border recognition and enforcement of judgments,3 this was not their approach to drafting the single provision included concerning the specific cross-border circulation of authentic instruments; Article 50.4 Indeed, in many respects the new multilateral cross-border enforcement possibilities for authentic instruments between EEC Member States did not deviate from a relatively simple borrowing and scaling-up from the best cross-border enforcement possibilities previously available in earlier bilateral arrangements. It will be recalled that typically these bilateral treaties allowed the crossborder enforcement of authentic instruments, subject to an exequatur stage in the receiving State.5 During this exequatur application the court of the receiving State had to check the domestic enforceability of the foreign authentic instrument and then ensure that enforcement would not be contrary to its public policy. Compliant foreign authentic instruments would receive the declaration of enforceability allowing them to produce cross-border enforcement effects in the receiving State. The simplification and regularisation of the cross-border enforceability of authentic instruments in civil and commercial matters inter se was thus neither novel or radical for the drafters of the Brussels Convention. Each of the original Member States had a legal system featuring reasonably similar types of authentic instruments and each possessed public officials, particularly notaries, and public offices with the ability to create enforceable examples of such authentic instruments.6 The Brussels Convention broadened the bilateral 1 See the Jenard Report OJ C-59/1 [1979] 1. 2 For details see https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A41968A0927% 2801%29. 3 Jenard Report (n 1) 47 at Section 2 (a) ‘As has already been shown, the Committee endeavoured to give the Convention a progressive and pragmatic character by means of rules of jurisdiction which break new ground as compared with the enforcement conventions concluded hitherto’. 4 Jenard Report (n 1) 56, ‘In drawing up rules for the enforcement of authentic instruments, the Committee has broken no new ground’. 5 See Article 16 of Convention 8.7.1899; Article 16 of Convention 28.3.1925; Article 6 of Convention 3. 6. 1930; Article 6 of Convention 25. 10. 1957; Article 13 of Convention 30.6.1958; Article 7 of Convention 16.6.1959; Article 13 of Convention 6. 4. 1962; and Article 16 of Convention 30. 8.1962, all discussed in ch 3. 6 The legal systems of France, Belgium and Luxembourg were particularly closely related.

Introduction  119 potential to a multilateral one but did so in a way that left more than a trace of the original bilateralism visible. The original Article 50 of the Brussels Convention read as follows: Article 50 Brussels Convention (original text) A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, have an order for its enforcement issued there, on application made in accordance with the procedures provided for in Article 31 et seq. The application may be refused only if enforcement of the instrument is contrary to public policy in the State in which enforcement is sought. The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin. The provisions of Section 3 of Title III shall apply as appropriate.7

Thus, a validly drawn-up or registered civil and commercial authentic instrument from one Member State could be presented for exequatur in another Member State and, if this was granted, it would be enforceable in the receiving State. During this exequatur the receiving court was required to ensure that the incoming authentic instrument was enforceable according to the law of the Member State of origin, ie valid either in the Member State in which it was drawn-up by a notary or valid in the Member State in which it was registered by a public office, and finally, that granting the requested enforcement declaration was consonant with the public policy of the Member State in receipt. As a consequence of the shared application of Section 3 of Title III there was also a limited possibility for the debtor to appeal the grant of the exequatur.8 The conservativism of the original convention drafters in this context is clear; the cross-border enforceability of authentic instruments was however restricted further by provisions on the material and temporal scope of the Convention.9 Though for the most part the jurisdictional provisions of the Brussels Convention are not per se relevant to authentic instruments, though they may of course be very relevant to litigation concerning the material content of an authentic instrument, Article 16 of the Convention does have a well-concealed relevance for authentic

7 The italics indicate where original Art 50 Brussels Convention was eventually modified in terms of its terminology, if not meaning, to ensure that its first paragraph was aligned with the terminology used to draft the first 1988 Lugano Convention: see Art 14 of the 1989 Accession Convention which substituted original paragraph 1 with: ‘A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, be declared enforceable there, on application made in accordance with the procedures provided for in Article 31 et seq. The application may be refused only if enforcement of the instrument is contrary to public policy in the State addressed’. See https://curia.europa.eu/common/recdoc/convention/en/ c-textes/brux06c-idx.htm. 8 This also echoed the provisions of various bilateral conventions considered in the previous chapter. 9 See Arts 1 and 54 of the Brussels Convention respectively for material scope and for the temporal application from the point of commencement between the original Member States on 1 February 1973.

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instruments. This stems from Article 16(5) concerning the nature of the enforcement in the Member State of enforcement. Article 16(5) exclusively reserves jurisdiction over proceedings concerned with the enforcement of judgments to the Member State in which the Convention judgment has been or is to be enforced by its creditor. This has been explained by both the Jenard Report and by the Court of Justice, which approved the Jenard Report explicitly on this point, to include the enforcement of authentic instruments.10 Thus the venue selected by the creditor of the Brussels Convention authentic instrument always has exclusive jurisdiction over the enforcement of that authentic instrument within its own legal system(s).11 The jurisprudence of the Court of Justice on Article 16(5) concerning j­udgments, has seen it in Malhé reject as an apparent abuse of process an attempt by a judgment debtor to argue that the exclusive jurisdiction that Article 16(5) unquestionably did confer on the (German) enforcement venue therefore additionally allowed him to raise other proceedings (also taken under the Convention but ‘now’ ongoing in France concerning following an earlier ruling by the German courts that they had no jurisdiction) to oppose enforcement in Germany concerning the costs arising from his unsuccessful attempt to found jurisdiction in Germany. The Court of Justice took the reasonable view that though all possible German domestic procedures were mandated by Article 16(5), to also allow the foreign proceedings to be used as an additional set-off – as requested by the debtor – would undermine the allocation of Convention jurisdiction, as it would amount to an indirect means of allowing the German court to make a decision over a matter which it had already ruled it had no jurisdiction to hear.12 It is interesting to speculate how Malhé would have proceeded had the case concerned the disputed enforcement of a valid13 authentic instrument, instead of a judgment for costs. Article 16(5) would still confer exclusive jurisdiction on the enforcement venue, but would it still threaten an abuse of process if the debtor requested that the enforcement venue employed its domestic enforcement laws to defer or offset the enforcement on the basis of a challenge they were bringing in another Member State (not necessarily the Member State of origin)? The enforcement of an authentic instrument does not proceed from any other conferral of Convention jurisdiction than Article 16(5) itself and thus the request cannot

10 See Jenard Report (n 1) at 36 quoting an explanation offered in the national context in 1944 (long before the Brussels Convention was an issue) by Chevalier de Braas, Précis de procedure civile, volume 1. No. 808 (Brussels, Bruylant, 1944). The quoted explanation by de Braas as well as the suggestion of the Jenard Report for a reading of Art 16(5) that also includes the enforcement of authentic instruments were each expressly approved by the Court of Justice in Case C-261/90 Reichert v Desdner Bank (no 2) [1992] ECR I-2149 at para 27. 11 See A Layton and H Mercer, European Civil Practice 2nd edn (London, Sweet & Maxwell, 2004) paras 19.065–19.068. 12 See Case 220/84 A-S Autoteile Service GmbH v Malhé [1985] ECR 2267, discussed by Layton and Mercer (n 11) para 19.064. 13 Clearly if the authentic instrument presented for enforcement can be demonstrated to be invalid according to the law of the Member State of origin this is fatal to its cross-border enforcement.

Introduction  121 undermine an earlier or subsequent jurisdiction allocation decision as feared in Malhé.14 Equally, there are no lis pendens implications concerning authentic instruments. Though merely a matter of conjecture, it seems at least arguable that the exclusive jurisdiction imposed by Article 16(5), a provision that under differently numbered paragraphs15 is common among the Brussels I and Lugano instruments, may actually allow the enforcement venue a somewhat greater latitude to consider, inter alia, foreign proceedings when presented with debtor opposition concerning the creditor’s enforcement request. That said, so far as the author has been able to discover, this possibility has not been noticed or explored in the context of authentic instruments. As will be seen in other parts of this book it is frequently assumed in EU private international law that at the point of enforcement an authentic instrument is essentially equivalent with a judgment; this is unfortunate not merely because it is wrong but also because this assumption masks the non-contentious nature of the authentic instrument.

A.  Definitional Issues The conservative approach of the original drafters deferred the resolution of certain potentially troublesome issues concerning the multi-lateral cross-border enforceability of Brussels Convention authentic instruments. These issues included those connected with the omission of a positive definition of the Article 50 authentic instrument. The Brussels Convention eschews positive definition, instead providing a succession of textual restrictions that have the effect of progressively narrowing the class of (enforceable) authentic instruments that may be transmitted from the Member State of origin to a Member State of enforcement. Thus, from the Convention text, it is clear that before an authentic instrument could be sent from one Member State to another it had to be validly drawn-up or registered in the Member State of origin such that it was there imbued with domestic ‘authenticity’ and enforceability; when exported to the Member State of enforcement these issues were examined by its court(s) during the exequatur application and, assuming satisfactory demonstrations, the exequatur would, subject to a refusal based on public policy grounds, be granted by the Member State in receipt. This approach had, and has, the advantage of not requiring a harmonisation of the different national concepts of authentic instruments: it is by testing whether the authentic instrument presented in the Member State in receipt is compliant with that which the Convention requires concerning its creation in the Member State

14 In the event however that enforcement concerning one authentic instrument was ongoing in different Member States it is possible to envisage a potential clash of Art 16(5) exclusive jurisdiction between the enforcement venues depending on the nature of the debtor’s request. 15 It is identically numbered in the first Lugano Convention; it is re-numbered to Art 22(5) in the Brussels I Regulation (and in the second Lugano Convention) while under the Brussels Ia Regulation it has become Art 24(5).

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of origin that the validity and prima facie enforceability of the incoming authentic instrument is established within the Member State in receipt. The public policy long-stop protects the Member State of enforcement from the need to grant an exequatur if to do so would violate its public policy. At a time when all the EEC Member State legal systems featured similar, if not identical, authentic instruments, avoiding the need to precisely define an enforceable authentic instrument within the draft Brussels Convention may have seemed advantageous to the drafters; subsequently, the preservation of a status quo dating back to the 1960s may be regarded with ambivalence. Not only has the absence of a more positive definition in the text proven problematic following the accession of those Member States that do not feature authentic instruments,16 or that feature different types of authentic instruments,17 it has also arguably retarded the coherent development of a European concept of the non-contentious aspects of the private international law of authentic instruments by legitimating and preserving differences between the Member States concerning authentic instruments and the role of notarial professions which obstruct a general and inclusive consideration of how, in principle, harmonised authentic instruments should circulate within the EU.18 As will be seen below, it is suggested that the actual and attempted development of the EU private international law concerning authentic instruments each suffer from the definitional defects associated with the durability of the drafters’ decision to conserve a particular status quo while drafting Article 50 of the Brussels Convention.19 Member State inertia and the fact that authentic 16 Denmark, Sweden, Finland and Cyprus do not feature authentic instruments in their legal systems; the legal systems of England and Wales and Northern Ireland are the same. The Scottish legal system features a particular form of authentic instrument arising from the registration of a matter for preservation and execution in the Register of Deeds and Probative Writs in the Books of Council and Session. 17 For the problems posed by and for Switzerland in the context of the Lugano Conventions see s I.B below, also see s III.D below concerning ‘newer’ EU Member States in Bulgaria, Lithuania, Romania and Slovakia in which it is necessary to seek the permission of a court to enforce any authentic instrument and in Estonia and Malta where it is necessary to seek the permission of a court to enforce certain types of authentic instrument. 18 The aborted 2008 proposal by the European Parliament requesting the Commission to commence work on a legislative proposal for a Regulation that would have established a European Authentic Act, perfectly illustrates these difficulties. A harmonisation of a diverse legal institution via European law was proposed that only allowed those in the legal systems currently employing authentic instruments the possibility of then creating and exploiting the harmonised European Authentic Act. See, European Authentic Act, European Parliament resolution of 18 December 2008 with recommendations to the Commission on the European Authentic Act (2008/2124(INI)) ANNEX OJ C 45E, 23.2.2010, p. 60–63 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52008IP0636. 19 It must also be recognised that the problem is also due to Member State intransigence concerning their notarial professions. It was not until 2011 that the CJEU was able to refute the nonsensical argument – in flagrant breach of Art 49 TFEU – that to be a notary in certain Member States it was necessary to be a national of that Member State see: Commission v Belgium (C-47/08, EU:C:2011:334); Commission v France (C-50/08, EU:C:2011:335); Commission v Luxembourg (C-51/08, EU:C:2011:336); Commission v Austria (C-53/08, EU:C:2011:338); Commission v Germany (C-54/08, EU:C:2011:339); and Commission v Greece (C-61/08, EU:C:2011:340). In 2017 Hungary was informed by the CJEU in that it was also required to drop the nationality requirement: see Commission v Hungary (C-392/15, ECLI:EU:C:2017:73).

Introduction  123 instruments (as creatures of non-contentious justice) were/are rarely litigated before courts able and also accustomed to make preliminary references, have each contributed to this durability; it follows that the subsequent opportunities for the European Court of Justice to develop the law in this context have been few compared with opportunities in relation to equivalent contentious matters such as the definition of ‘judgment’. It is further suggested this conservative policy has retarded the development of a deeper understanding of the cross-border potential of non-contentious justice in the provisions of the EU Regulations that detail the European private international law of authentic instruments; such provisions have suffered repeatedly from being conceptualised as litigation-free appendices20 to the main provisions concerning the private international law of contentious judgments.21 It is argued throughout this book that this lack of definition and the endurance of the drafter’s understandable initial conservatism have acted to obstruct a more radical engagement of EU private international law with the non-contentious nature of authentic instruments; it is also suggested that at present the drafters of EU law tend to underappreciate potential difficulties with the very authentic instruments they have provided with enhanced cross-border possibilities via diverse EU private international law Regulations once these authentic instruments leave the Member State of origin and hence tend to under-regulate this aspect of the use of authentic instruments. Though these definitional and related issues began with the drafting of Article 50 of the Brussels Convention they have continued throughout its ­operation, affected the drafting of Article 50 of the first Lugano Convention of 1988 then affecting the drafting of Article 57 of both the Brussels I Regulation and the second Lugano Convention of 2007. These definitional defects also led to the most significant case directly concerning authentic instruments yet to be heard by the European Court of Justice.22 The comments of the Court of Justice in the Unibank case, though again not amounting to a complete definition, have since been woven, in various adapted forms, into the EU’s subsequent private international law provisions concerning the attributes of the authentic instruments which may benefit from the cross-border possibilities that EU legislation variously confers.

20 Judgments were placed in Chapter III but authentic instruments and court settlements were located in Chapter IV. Though certain enforcement provisions located in Chapter III were shared, the basic structural and legal distinctions drawn between contentious judgments and non-contentious authentic instruments is clear. 21 See Case C-414/92 Solo Kleinmotoren GmbH v Emilio Boch [1994] ECR I-2237 in which the court was required to distinguish judgments from settlements and authentic instruments; para 22. 22 Case C-260/97 Unibank A/S v Flemming G. Christensen [1999] ECR I-3715.

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B.  The Authentic Instrument in European Private International Law: Definitional Defects and the Unibank Decision It may be advisable to begin this subsection by noting that it is not uncommon for the drafters of European law to leave varied national legal concepts unharmonised, and only to require that the Member States’ application of the European law on that matter shall allow a foreign ‘thing’ to be as simply received and thereafter rendered effective in different Member States as required by the European law that conferred the cross-border possibility. This observation is advanced to clarify the nature of the criticism directed towards the definitional defects of the authentic instrument in Article 50 of the Brussels Convention. The criticism is not that when Article 50 of the Brussels Convention came into force on 1 February 1973 it failed to provide a complete autonomous definition of the authentic instrument as an ‘EU’ legal concept and institution. The criticism is rather that the initial understandably conservative approach taken by the drafters in this context has been allowed to endure far beyond the point at which it was supportable on the basis of either legal commonality between the Member States or drafting expediency; in particular once the membership of the EEC began to expand such that a number of new Member States, some lacking any authentic instruments in their domestic laws, then acceded to the Brussels Convention.23 It is suggested that though the relevant points of accession offered repeated opportunities to clarify the definitional aspects of the EEC authentic instrument, and to explain its non-contentious nature, such opportunities were not properly exploited. As noted above, as well as the pressure on the definitional issues in Article 50 consequent on the accession of new EEC Member States, the cross-border enforcement of authentic instruments also posed problems for the joint European Free Trade Association (EFTA)/EEC plan to involve the EFTA States in a new convention – the first Lugano Convention of 1988 – which, broadly speaking, replicated the provisions of the then Brussels Convention amongst those EFTA States so as to extend equivalent opportunities to the EFTA States, thereby allowing the expedited cross-border circulation of civil and commercial judgments, authentic instruments and judicial settlements among EFTA and EEC States. To maximise the utility of the Lugano Convention it was essential that it followed the provisions of the existing Brussels Convention as closely as possible; indeed,

23 The Brussels Convention was amended by accession agreements extending its legal operation to Denmark, Ireland and the UK in 1978, to Greece in 1982, to Spain and Portugal in 1989 and to Austria, Finland and Sweden in 1996 (for details see https://curia.europa.eu/common/recdoc/convention/en/c-textes/_brux-textes.htm); of these nine new Member States, five lacked domestic authentic instruments.

Introduction  125 during negotiations it was reportedly referred to as ‘the Parallel Convention’.24 Parallelism was however somewhat problematic for draft Article 50’s enforceable authentic instruments as, at the time of negotiation and signature, only one of the then six EFTA States (Austria) featured enforceable authentic instruments in its domestic law.25 As far as Finland, Iceland, Norway and Sweden were concerned, the authentic instrument was alien to their legal systems: the position was, and possibly still remains, more complicated for Switzerland. Though Switzerland’s 26 Cantons all featured authentic instruments when the Lugano Convention was being negotiated, the authentic instruments of Swiss notaries lacked independent domestic executory force until 2011; prior to 2011 their domestic enforcement required an application to a Swiss court for permission to convert what was then merely a provisionally enforceable authentic instrument into an enforceable title allowing the creditor to pursue enforcement against the debtor.26 This conversion process was cumbrous and operated to the relative disadvantage of the Swiss creditor as, pre-2011, it allowed the debtor such time and opportunities to contest it as to render it difficult for a Swiss authentic instrument to ever satisfy the requirements of domestic enforceability necessary to allow it to be exported from Switzerland as envisaged by Article 50 of the Lugano Convention.27 Since 2011, when the unification of Swiss civil procedure was effected by the coming into force of the Schweizerische Zivilprozessordnung,28 legislation provides that an enforceable authentic instrument drawn-up in Switzerland by a Swiss notary is now treated as directly enforceable by Swiss procedural law:29 therefore it may now be enforceable enough ‘as such’ to allow it to benefit from the provisions of the Lugano Convention (2007) concerning authentic instruments.30

24 See Jenard Möller Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 90/C-189/07 at 60. 25 Jenard Möller Report (n 24) 80. 26 See T Domej, ‘Switzerland: Between Cosmopolitanism and Parochialism in Civil Litigation’ in XE Kramer and CH van Rhee (eds), Civil Litigation in a Globalising World 1st edn (The Hague, TMC Asser Press, 2012) 247 at 254. 27 See Domej (n 26) 255. Also see the decision of the Austrian Landesgericht für Zivilrechtssachen (LGZ) Graz of 12.11.2008–4R268/08y confirming that though a Verlustschein infolge Pfändung (a certificate of debts outstanding after seizure) issued via Art 149 SchKG after the Lugano Convention 1988 was in force was a Swiss authentic instrument, it was not domestically enforceable as such in Switzerland and hence could not benefit from Art 50 of the Lugano Convention 1988 by transmission to Austria. 28 Schweizerische Zivilprozessordnung/Code de procédure civile/Codice di diritto processuale civile Svizzero, SR 272, www.admin.ch/opc/de/classified-compilation/20061121/index.html. 29 Since the 2011 reforms Art 347 ZPO has, in conjunction with Art 80, para 2, No 1 bis of the Bundesgesetz über Schuldbetreibung und Konkurs (SchKG) of 11 April 1889 SR 281.1 (www.admin. ch/opc/de/classified-compilation/18890002/index.html), and subject to Arts 348–49 ZPO, allowed domestic executory force for enforceable Swiss authentic instruments/öffentliche Urkunden within Switzerland, see Domej (n 26) 255. 30 Even now it is not entirely clear if the 2011 reforms suffice to allow the export of an enforceable Swiss notarial authentic instrument via the Lugano Convention, see concerns expressed by Domej (n 26) with references, at 257.

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For five of the six EFTA States the proposal to replicate Article 50 of the Brussels Convention in parallel as Article 50 of the first Lugano Convention thus promised a significant lack of reciprocity: they would be required to enforce incoming foreign authentic instruments from Austria or from other EEC Member States but would be incapable of sending enforceable authentic instruments to these States. After some debate, the EFTA States agreed to the inclusion of the draft Article 50 analogue on cross-border authentic instruments but requested that the official report on the Lugano Convention 1988 clarify the nature of the asymmetry they would tolerate. One question concerned the frequency of transmission of cross-border authentic instruments via the Brussels Convention; the report duly states that the application of Article 50 Brussels Convention ‘appeared relatively uncommon’.31 Another question requested further information as to the basic definitional issue of what conditions were required for an authentic instrument to be regarded as ‘authentic’ in the Member State of origin for the purposes of applying Article 50 of the Convention? The answer in the Jenard/Möller Report on ‘domestic authenticity’ listed three characteristics of an enforceable authentic instrument: – the authenticity of the instrument should have been established by a public authority, – this authenticity should relate to the content of the instrument and not only, for ­example, the signature, – the instrument has to be enforceable in itself in the State in which it originates.32

Additional clarification was provided in the report by explaining that in the absence of an intervention by a public authority (eg a notary empowered with this authority, another public official or a public office) mere domestic enforceability for privately created documents (such as commercial bills, cheques or privately drafted Danish settlement agreements) did not confer the domestic authenticity necessary to create an authentic instrument that could benefit from the crossborder possibilities of Article 50 of the first Lugano Convention.33 The clarifications of paragraph 72 of the Jenard/Möller report doubtlessly assisted the Lugano States in understanding the factors to be considered when evaluating the domestic authenticity of an alleged authentic instrument presented for cross-border enforcement under Article 50, but no further attempt at definition of the Article 50 authentic instrument was attempted; though it may be that both the question asked and the agreement of the Lugano States to draft Article 50 of the Lugano Convention each, quite possibly in conjunction with understandable diffidence on this matter by the authors, constrained the extent to which

31 Jenard Möller Report (n 24) para 72, at 80. No explanation or references are provided to substantiate this odd statement, nor to explain how this conclusion was reached. It may be that absence of evidence (ie reported cases) was being confused with evidence of absence. 32 ibid. 33 ibid.

Introduction  127 the Jenard/Möller Report could offer a definition, it may still be regretted that no attempt was made to emphasise the non-contentious aspects of the authentic instruments at issue in Article 50 or to distinguish the factors relevant to their enforcement from those appropriate to the enforcement of judgments.34

C. The Unibank Case It is somewhat ironic that the definitional clarification offered to EFTA States, unfamiliar with authentic instruments and uncertain of domestic authenticity requirements in the place of drawing-up or registration, would some 10 years later be referred to the Court of Justice in response to a preliminary reference filed by the Bundesgerichtshof (BGH – the highest civil court in Germany) asking whether privately created Danish gældsbrev documents evidencing debt obligations which after a later application under Danish civil procedure law had become enforceable in Denmark could qualify as an authentic instrument enforceable via Article 50 of the Brussels Convention to allow enforcement in Germany.35 Unibank, the Danish creditor, sought a declaration of enforceability under Article 50 from a German court concerning three gældsbrevs it held against a Danish debtor who by then resided in Germany. Somewhat worryingly this request was, in apparent accordance with equally worrying existing German practice concerning Article 50 of the Brussels Convention,36 granted by the Landegericht Darmstadt.37 The debtor appealed and in the meantime the case was dismissed because the debtor notified the German court that he had left his German employment and Germany. The creditor appealed the decision to dismiss the case and when the matter came before a sceptical Bundesgerichtshof, it asked the European Court of Justice, inter alia, whether the gældsbrev could be regarded as an authentic instrument under Article 50.38 The Unibank case reveals the existence and extent of the definitional confusion concerning Article 50 of the Brussels Convention in the lower courts of a founding EEC State which unquestionably did understand its own domestic concept of an authentic instrument: the difficulty was that it was not entirely clear to German courts or to German legal science whether a Danish gældsbrev (or related foreign concepts) could or should be deemed an authentic instrument under Article 50 of the Brussels Convention. Though Unibank can be presented to suggest that no 34 See Part Two below for consideration of the differences between the public policy exception in these contexts. 35 Case C-260/97 (n 22). Casenote by G Droz in (2000) 89 Rev crit DIP 250–53; see also P Callé, ‘L’acte authentique établi à l’étranger Validité et execution en France’ (2005) 94 Revue critique de droit international privé 377 at 398–99. 36 The matter is mentioned in para 11 of the BGH decision/reference Unibank A/S v Flemming G. Christensen Bundesgerichtshof of 26 June 1997 [1998] ILPr 224. 37 ibid, at para 3. 38 ibid.

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such confusion should ever have arisen, this unhelpfully downplays the ambiguity of the Brussels Convention on this point. Any description of the gældsbrev makes it plain that it is not drawn-up by a public official in a manner analogous with a notary drawing-up an authentic instrument: for it to be regarded as a potential authentic instrument it is thus necessary to assume that its status derives from the subsequent intervention of a public authority capable of conferring that status upon it. It is suggested that it is confusion about this possibility, coupled with unfortunate omissions from the Schlosser Report,39 that led to errors in Germany concerning the status of the gældsbrev. In its coverage of enforcement generally and the particular enforcement of authentic instruments the Schlosser Report is unhelpfully vague or silent on Danish law: it states that there are no equivalents of enforceable authentic instruments in England or in Ireland and notes that the Scottish legal system allows an obligation to be entered in a public register and that thereafter an extract from that register will be enforceable via Article 50 as an authentic instrument. How then is the absence of comment on Denmark in this context to be interpreted when considering the domestic enforceability that might be conferred by a successful application to a Danish enforcement court under section 478(1) of the Retsplejelov (the Danish Administration of Justice Act) on certain classes of Danish private documents that relate to an obligation to pay money (including, but not limited to, a gældsbrev)? Should the comments in paragraph 226 of the Schlosser Report on Scottish authentic instruments be understood to suggest that after the application to the Danish enforcement court pursuant to section 478(1), No 5, of the relevant Act, the gældsbrev is or is not equally able to benefit from Article 50? As the Bundesgerichtshof noted in its decision accompanying the preliminary reference, in 1983 a well-respected German academic commentator40 was willing to contemplate this possibility; further, a German appeal court in 1995 had apparently treated a gældsbrev as an authentic instrument under Article 50.41 Though the 39 Report on the Convention on the association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice by Prof Dr P Schlosser [1979] OJ C 59/71. 40 See Schütze in Geimer/Schütze, Internationale Urteilsanerkennung, CH Beck 1983 Munich, Vol. I. 1, §.173 II. 3a–j. Schütze considered authentic instruments, if any, in each of the then 10 EEC Member States. Denmark is considered at ‘h’. Schütze does not say that a gældsbrev is an authentic instrument, he merely notes the possibility of such a conclusion concerning the varied contents of s 478(1) of the Danish Administration of Justice Act that could subsequently be given domestic enforceability by a successful application to the Danish enforcement court. Something very similar to this view appears to be shared by Leutner, writing in 1997, in his survey of the Danish Law and its potential interaction with Art 50. See G Leutner, Die vollstreckbare Urkunde im europäischen Rechtsverkehr 1st edn (Berlin, Dunkler & Humbolt, 1997) at 147–54. 41 The BGH give the reference Oberlandesgericht Schleswig of 31 October 1995 (Case 16 W 59/98) for a case in which this appeal court is supposed to have treated a Danish gældsbrev as an Art 50 authentic instrument. The case is not however reported and the OLG case filed under the BGH’s reference number (as kindly supplied to the author by the court) does not address authentic instruments/ cross-border matters at all. It is thus unclear whether the BGH refers to the right case in which the OLG Schleswig concluded that another Danish gældsbrev fell under Art 50.

Introduction  129 BGH was clearly, and it is submitted rightly, sceptical of this possibility, it struggled to find domestic academic authorities with which to justify its scepticism42 and thus had to rely on the abovementioned Jenard/Möller Report. This report had already dismissed the possibility that a private Danish settlement agreement could, after undergoing the Danish domestic enforceability procedure via section 478(1), No 4 of the Act, be treated as an authentic instrument under Article 50 Lugano Convention. Armed with this compelling observation it is unsurprising that the BGH concluded that it also excluded the gældsbrev included in the following subparagraph of the Danish Law. The BGH also noted the nature and extent of the Danish challenge opportunities concerning an ‘enforceable’ gældsbrev which it also appeared to regard as failing to support the preliminary domestic enforceability requirements of Article 50.43 The BGH’s first question read as follows: Is a promissory note signed by a debtor without the involvement of a public official – such as the gældsbrev under Danish law … – an authentic instrument within the meaning of Article 50 of the Brussels Convention, if that promissory note expressly specifies that it can serve as the basis for enforcement and if it can constitute the basis for enforcement under the law of the State in which it was drawn up, albeit subject to the condition that the court with jurisdiction to enforce it may refuse the creditor’s application for enforcement if, as a result of objections to the basis for enforcement, there are doubts as to whether enforcement proceedings should be continued?44

Advocate General La Pergola rejected Unibank’s implausible argument that the authenticity required of the authentic instruments empowered by Article 50 Brussels Convention referred simply to domestic enforceability in the Member State of origin, and thus did not intrinsically require the intervention of a public official or authority in the drawing-up or registration of the enforceable document if the law of the Member State of origin did not require this.45 The Advocate General pointed out the textual difficulties facing this argument and rejected it on the basis that authentic instruments had been accorded a privileged status somewhat akin to judgments; each was enabled by the Convention to circulate for the purposes of enforcement. He noted further that authentic instruments emanate from the involvement of public officials (including registrars, notaries and judicial officers) who exercise powers of reasoning and judgment which indirectly

42 Unibank A/S v Flemming G. Christensen Bundesgerichtshof of 26 June 1997 [1998] ILPr 224 para 12 citing the assumption that a gældsbrev was not an authentic instrument which the BGH inferred from the comments of MK Wolff in Handbuch des internationalen Zivilverfahrensrechts Vol III 2 Mohr Tübingen 1982 Vollstreckbarerklärung, n 251; and also expressly approving R Geimer’s earlier rejection of the possibility that Italian promissory notes might, solely on the basis of their undoubted domestic Italian enforceability, then circulate via Art 50, see R Geimer, Art 50 GVÜ, n 1, in Zöller, ZPO Kommentar 20th edn. 43 Unibank, ibid, paras 6–7. 44 ibid, para 22, the second question is not material. 45 See Case C-260/97 (n 22) AG para 7.

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manifest public authority concerning the drawing-up or registration of the document at issue, and observed, pointedly, that, it would not be consonant with the aim and spirit of the Convention for the contracting states to have to accord to private documents, which had not been authenticated in any way, the same treatment as that afforded to decisions given by judicial authorities.46

The AG then turned his attention to the three Jenard/Möller criteria and particularly the first requirement of the need for the authenticity of the instrument to have been established by a public authority. He concluded that authenticity was, ‘an essential requirement of the category of documents governed by [Article 50], and … there can be no authenticity unless a public authority is involved when the document is brought into being’.47 Thus if there was no intervention of a public authority to confer authenticity at the point of drafting or later at the point of registration, the document could not be ‘authentic’ allowing it to fall within the scope of Article 50 Brussels Convention. Though the italicised part of the previous sentence is beyond doubt, it is arguable that AG Pergola’s otherwise excellent opinion does not emphasise it sufficiently. As indicated above, the main issue in Unibank should have been whether the subsequent engagement of a privately drafted document with the Danish law that might confer domestic enforceability upon it was a sufficient engagement with a public authority to also confer on it the authenticity required for the operation of Article 50; the only engagement with a public authority occurred at the point of the creditor’s application under Danish law, as there appears to have been no ‘novation’ or registration of an enforceable obligation involving that Danish authority at this point, the negative answer is obvious. The fifth chamber of the Court of Justice followed the opinion and emphasis of its AG in all material respects but employed a more laconic manner which, with respect, in parts of paragraph 15 reveals inaccuracies. Thus, having noted the equivalence in the Brussels Convention between the circulation allowed to both judgments and authentic instruments, the Court asserted that because authentic instruments are, ‘enforced under exactly the same conditions as judgments the authentic nature of such instruments must be established beyond dispute’48 to allow the court in receipt to rely on this authenticity. The Court then (correctly) distinguished privately drafted instruments from authentic instruments drawnup with the involvement of a public authority and in paragraph 16 linked this 46 ibid. 47 ibid, AG para 9. 48 ibid, para 15, emphasis added. Concerning the first italicised extract, para 7 of the AG’s opinion, supra, makes the elementary point that the objections to the enforcement of a judgment are more extensive than the public policy exception for authentic instruments. Equally, the enforcement provisions of Section 3 of Title III only apply as appropriate to an authentic instrument: judgments and authentic instruments are not enforced in an identical fashion. Concerning the second italicised extract, it is apparent rather than absolute authenticity that is required: it is always possible to dispute the formal validity of an authentic instrument, eg for ‘forgery’, even after an enforcement: unlike judgments authentic instruments never become incapable of challenge.

Introduction  131 issue across the Brussels and Lugano Conventions via the Jenard/Möller criteria, which it set out in paragraph 17 before deducing in paragraph 18 that the involvement of a public authority was essential for the operation of Article 50 of the Lugano Convention. In the next two paragraphs the Court equated the Article 50 provisions and requirements across the Lugano and Brussels Conventions, despite trivial textual differences between the two at the material time, and opined that though there had subsequently been an equalisation between the wording of the two Conventions by the Third Accession Convention, the two slightly differing Article 50 provisions in the Brussels and Lugano Conventions were ‘virtually equivalent’.49 The fact that the Court linked the Conventions for Article 50 purposes and emphasised that, ‘the involvement of a public authority or any other authority empowered for that purpose by the State of origin’50 was a sine qua non for the application of Article 50 under either Convention were each useful contributions to a deeper understanding of the nature of the enforceable cross-border authentic instrument in European private international law. Unfortunately, the Court, even more than its AG, focussed on the opening clauses of the BGH’s first question and omitted to address the matter of the lack of an intervention by a public official or officer in a manner that considered the actual engagement of the private Danish documents with ‘public authority’. The Court thus only considered an intervention that the facts made plain had not occurred. That the Court did not explore the nature of the subsequent involvement of the private document with the Danish procedural law that conferred its domestic enforceability is a matter of regret: had it added a sentence or two explaining why the domestic engagement of the gældsbrev with Danish law did not suffice, Unibank would have been a more useful decision. One can only speculate as to why this simple application of the law to the live legal issue was overlooked; the syntax of the BGH’s question, the need to supplement the patent definitional deficit and to resist the domestic disruption threatened by a radical extension of the ambit of Article 50 may each though have been factors. The Unibank case is the only case to date to reach the Court of Justice concerning the definitional requirements for an authentic instrument to benefit from Article 50 of the Brussels Convention or from equivalent Brussels I/Ia Regulations: its significance stems both from the court’s approval and generalisation of the 49 ibid paras 19 and 20. In para 20 reference is made to the equivalence of meaning of the two Conventions prior to reform of Art 50 Brussels Convention by the Third Accession Convention. ‘The expression “when the order for its enforcement has been issued”, used in the Brussels Convention has been replaced by “when it has been declared enforceable”, as in the Lugano Convention. This amendment to the Brussels Convention was adopted in order to bring the two conventions into line, particularly since the two expressions may be considered virtually equivalent (see also the Jenard-Moller Report, paragraph 68 and 69, on this).’ Report by Mr de Almeida Cruz, Mr Desantes Real and Mr Jenard on the Convention on the accession of the Kingdom of Spain and the Portuguese Republic to the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1990] OJ C 189/06 para 29. 50 ibid para 15.

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Jenard/Möller criteria, and from the subtler point that the AG and the Court both declined the opportunity suggested by the Danish Bank to establish a wider European concept of an ‘enforceable authentic instrument’ extending beyond the legal institution in the Member States that unarguably did feature it. In this respect Unibank continues the conservative and quasi-bilateral trend of leaving the specific definition of a given authentic instrument to the domestic laws of the Member State of origin, as considered in the Member State in receipt, while however adding some definitional detail. The Court’s emphatic approval of the Jenard/Möller criteria also provided European law makers with a useful set of approved criteria which mutatis mutandis would be used thereafter to indicate aspects of that which could amount to an authentic instrument in subsequent measures of European private international law.51 In closing this consideration of the Unibank case it may be noted that both the court and the AG were unhelpfully silent on the non-contentious aspects of the authentic instruments under consideration. It cannot be that such distinguished jurists from legal systems featuring the authentic instrument as the highest example of non-contentious practice, were ignorant of this issue: why then is it not adverted to? The simplest explanation may be that the non-contentious aspect is assumed rather than explicit. If such diffidence is correctly diagnosed, it is regrettable: as will be seen below, the European law and procedure concerning the cross-border circulation of enforceable, but still non-contentious, authentic instruments has frequently been transformed, or threatened with such transformation, because of political decisions taken within the EU to change the nature of the exequatur procedures concerning judgments, seemingly without any awareness by the legislators of the existence of fundamental differences between judgments and authentic instruments as contentious and non-contentious legal concepts that should rationally be respectively accorded different form of cross-border enforceability by the private international law of the EU.

II.  The Legal Requirements for a Cross-Border Notarial Authentic Instrument that is to Circulate via a Member of the Brussels I Family of Conventions and Regulations A. Introduction The Unibank decision occurred while European reform processes were u ­ nderway to replace the Brussels Convention. This undertaking had initially been conceptualised 51 For example, Art 3(a) of Regulation 805/2004. Note the modification to the second requirement to clarify that the ‘authenticity’ conferred must relate to both the content and to the signature (if the authentic instrument is one that should feature a signature).

The Legal Requirements for a Cross-Border Notarial Authentic Instrument  133 as the replacement of the old Convention with a new updated Convention;52 after basic drafting however this was re-worked to form the basis of a proposal for the first EC private international law Regulation: Regulation 44/2001, the Brussels I Regulation, eventually emerged.53 Unfortunately for the law concerning authentic instruments, this reform saw the European Commission and the Member States take exactly the approach (deprecated above) of applying reforms intended to improve the cross-border enforcement of contentious judgments, to the very different context of non-contentious authentic instruments.54 Though judgments and authentic instruments may each benefit from cross-border enforceability in the EU, they are fundamentally different legal concepts (one is contentious and the other is non-contentious). As a matter of logic, it does not follow that a need to reform judgments must entail a similar need to reform authentic instruments: this is particularly the case if, as here, the reform proposals do not disclose any investigation of the issues by the reformers as they concern authentic instruments.55 These objections cannot however gainsay the political and legal reality that in relation to the Brussels I Regulation, and later the Brussels Ia Regulation, the reform proposals concerning judgments have, to the extent permitted by the Member States, been copied over and applied in an unsophisticated manner to authentic instruments and settlements too. Though matters of procedure are discussed later in this chapter, it is worth noting here that though for the purposes of reforming enforcement procedures the reformers routinely equate authentic instruments with contentious judgments, this tendency does not extend to the augmentation of the law of authentic instruments by borrowing every concept arising from the law of judgments and applying it to the authentic instrument. Thus, the introduction of improvements to the Brussels I Regulation designed to better protect those conceptualised as ‘weaker parties’ from the oppressive use of jurisdiction or cross-border judgment provisions56

52 Proposal for a Council act establishing the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters in the Member States of the European Union, COM /97/0609 final, [1998] OJ C 33, 20; succeeded by Commission’s Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 14/07/1999 COM (1999) 348 Final. 53 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 1–23, hereafter, Brussels I Regulation. 54 See the Commission’s Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 14/07/1999 COM (1999) 348 Final, p21–22 concerning judgments and 24 concerning the proposed application ‘mutatis mutandis’ of the same reforms to authentic instruments. 55 ibid, 24, the ‘explanatory’ report concerning the enforcement of authentic instruments appears to have been cut and pasted from the provisions on judgments – it refers to a refusal of recognition and enforcement of an authentic instrument on the basis of public policy. 56 See eg Recital 13 and Arts 8 (insurance contracts), 15 (consumer contracts), 18 (individual employment contracts) of the Brussels I Regulation which protect against non-voluntary jurisdiction outside the defendant’s domicile and Art 35 which prevents recognition or enforcement of a judgment reached in breach of the insurance or consumer provisions of the Brussels I Regulation.

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has never been extended to the enforcement of authentic instruments. This leads to the paradoxical situation that a person (deemed a consumer by Chapter II Section 4 of the Brussels Ia Regulation) who takes out a consumer loan is protected by his consumer status from the generation of a judgment, and from its cross-border enforcement, if he is sued on the loan contract outside his domicile without his consent; if however an identical loan is contracted in identical circumstances but the form it takes is an authentic instrument, the creditor can enforce it against the deemed consumer in any other EU legal system via Arts 58 and 60 of the Brussels Ia Regulation without any regard being paid to his protected consumer status by the Regulation.57 Though this may please the creditor, it is unlikely that the debtor will appreciate the legal subtlety. Though in one sense the paradox is due to the general absence of jurisdictional control of authentic instruments in the Brussels I Regulation, it is more particularly due to an assumption of equivalence by the reformers and a failure to depart from the conservative approach of the 1960s, or to engage fully with the legal development of the enforceable authentic instrument as a European cross-border legal concept.58 Despite some relatively minor textual changes, the transition from the Brussels Convention and the Lugano Convention of 1988 to the Brussels I Regulation and the second Lugano Convention 2007 and thence to the Brussels Ia Regulation has, despite definitional input consequent on the Unibank decision, remained quite conservative as far as the initial eligibility requirements for authentic instruments are concerned: it is with these requirements that the rest of this part of the chapter is concerned.

B.  Authentic Instruments and the Brussels I Regulation Following the lead of the Brussels Convention, the basic structural distinctions drawn by the Brussels Convention between judgments and authentic instruments were left superficially unchanged.59 Thus, authentic instruments were still described by one Article, the first found in Chapter IV of the Regulation: Article 57. Article 57 Brussels I Regulation 1.

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member

57 The actual enforcement law in the place of enforcement may, but need not, provide protections for comparable weaker parties. 58 It may be noted that it is not within the power of any notary to draw up an enforceable authentic instrument concerning a civil and commercial matter that may not be enforced across national borders inside the EU via the relevant Brussels I Regulation. Thus, the notary can advise caution but cannot offer the weaker party actual protection by drawing-up an alternative authentic instrument that is only enforceable domestically. 59 The Member States resisted initial proposals from the Commission that would have made the exequatur of authentic instruments an automatic response to an enforcement request that could not be refused by the Member State addressed.

The Legal Requirements for a Cross-Border Notarial Authentic Instrument  135

2. 3. 4.

State, be declared enforceable there, on application made in accordance with the ­procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed. Arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall also be regarded as authentic instruments within the meaning of paragraph 1. The instrument produced must satisfy the conditions necessary to establish its authenticity in the Member State of origin. Section 3 of Chapter III shall apply as appropriate. The competent authority of a Member State where an authentic instrument was drawn up or registered shall issue, at the request of any interested party, a certificate using the standard form in Annex VI to this Regulation.

Article 57(1) allows the creditor of an authentic instrument formally drawn-up (or registered) and enforceable in one Member State to proceed via the relevant provisions of Articles 38 to 52 to require a court in any other Member State to declare it to be enforceable. This declaration may only be refused or revoked via a later Article 43 or 44 appeal which leads the court to the conclusion that the initial enforcement declaration was ‘manifestly contrary’ to its public policy.60 Article 57(2) clarified that the phrase ‘authentic instrument’, as used in Article 57(1), included certain maintenance obligations.61 Article 57(3) reflects the Unibank/Jenard/Möller criteria. Article 57(4) applies Articles 53–56 to the hearing processes and requires the competent authority within the Member State where the authentic instrument was drawn-up or registered to issue a certificate as per the Annex VI standard form when requested to do so by any interested party.62 In 2007 the second Lugano Convention was produced and again paralleled the Brussels I Regulation to the extent possible.63 But for some minor issues of nomenclature Article 57 of the Lugano Convention 2007 is identical with Article 57 of the Brussels I Regulation.64

60 For the view that the introduction of the adverb ‘manifestly’ into Regulation 44/2001 was aimed at textual clarification rather than further restriction see S Franq in U Magnus and P Mankowski (eds), The Brussels I Regulation (Munich, Sellier European Law Publishers, 2007) at 564–65 and Layton and Mercer (n 11) at 26-014, 881. 61 This provision was to be rendered superfluous by the Maintenance Regulation 4/2009, see ch 6 below. 62 In the re-cast proposal old Art 57 (4) becomes Art 70(3) which tersely states, ‘The provisions of Section 1 or 2 of Chapter III, respectively, shall apply as appropriate’. 63 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339, 3–41. Also see, Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007 – Explanatory report by F Pocar [2009] OJ C 319, 1–56. 64 It is also in four numbered paragraphs. In para 1 ‘State bound by this Convention’ replaces ‘Member State’; in para 4 ‘title III’ replaces ‘section III’ and ‘Convention’ is substituted for ‘Regulation’.

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The re-casting exercise that led to the Brussels Ia Regulation saw a major re-design of the law to accommodate the new exequatur-free enforcement procedures concerning, inter alia, authentic instruments. This re-design extended to the presentation of the law within the new Regulation: a definition of an authentic instrument is provided by Article 2(c);65 Article 57 Brussels I is renumbered to Article 58 Brussels Ia, which now contains only two paragraphs; and the former Article 57(4) provision of the Brussels Regulation was transferred into new Article 60 of Brussels Ia. Article 58 Brussels Ia 1.

2.

An authentic instrument which is enforceable in the Member State of origin shall be enforceable in the other Member States without any declaration of enforceability being required. Enforcement of the authentic instrument may be refused only if such enforcement is manifestly contrary to public policy (ordre public) in the Member State addressed. The provisions of Section 2, Subsection 2 of Section 3, and Section 4 of Chapter III shall apply as appropriate to authentic instruments. The authentic instrument produced must satisfy the conditions necessary to establish its authenticity in the Member State of origin.

Article 60 Brussels Ia The competent authority or court of the Member State of origin shall, at the request of any interested party, issue the certificate using the form set out in Annex II containing a summary of the enforceable obligation recorded in the authentic instrument or of the agreement between the parties recorded in the court settlement.

Though radical in many other ways, the changes introduced by the recasting of the Brussel I Regulation into the Brussel Ia Regulation did not however affect the substance of the eligibility requirements for an authentic instrument capable of cross-border circulation via a provision of EU private international law.

III.  Brussels I Family Eligibility Criteria Required for an Authentic Instrument to be Capable of Cross-Border Circulation in the EU or EFTA States For an authentic instrument from the Member or Convention State of origin to be eligible for cross-border enforcement in another Member State or Convention

65 Art 2 BrIa (c) ‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in the Member State of origin and the authenticity of which: (i) relates to the signature and the content of the instrument; and (ii) has been established by a public authority or other authority empowered for that purpose.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  137 State the nominated authorities in the Member State or Convention State addressed must, according to the relevant Convention or Regulation procedures, determine: a) b) c)

d) e)

That the authentic instrument falls within the material scope of the ­Regulation or Convention and is essentially consonant with the, presumably, ­autonomous Regulation or Convention concept of an authentic instrument. That the authentic instrument falls within the temporal scope of the Regulation or Convention. That the authentic instrument was drawn-up or registered in the Member State (or Convention State) of origin via the intervention of a public authority of that State which thereby has established its authenticity in the State of origin concerning its content. That the authentic instrument satisfies the requirements for its domestic enforceability in the State of origin. That the enforcement of the authentic instrument would not be manifestly contrary to the public policy of the Member State or Convention State addressed.

These requirements are now considered.

A.  That the Authentic Instrument is within the Material Scope of the Regulation or Convention and is Essentially Consonant with the Presumably Autonomous Regulation or Convention Concept of an Enforceable Authentic Instrument Article 1(1) sets out the civil and commercial material scope of the Regulations and the Conventions, forbids any extension of this scope to also include revenue, customs or administrative matters, and in Article 1(2) expressly excludes its application to the matters listed therein. To the extent that an authentic instrument intrudes into these forbidden areas it cannot be enforced on that point via the Brussels Convention, the Brussels I Regulation, the Brussels Ia Regulation or either of the Lugano Conventions. It is possible that if the offending part of a given authentic instrument could be severed from an otherwise unobjectionable obligation, that was itself deemed capable of cross-border enforcement within the scope of the Brussels I family of Regulations and Conventions, the enforcement could proceed concerning the unobjectionable obligation. Concerning conceptual consonance, the Regulations and Conventions refer to the cross-border circulation of three different concepts (judgments, enforceable authentic instruments and settlements) but, as a consequence of national legal diversity, these provisions are not exhaustively defined.66 As even within a single 66 Despite Art 32 of the Brussels I Regulation (Art 25 in the Convention) the definition of ‘judgment’ is still evolving.

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Convention or Regulation the systems of enforcement and the associated challenge possibilities differ for these three different concepts, there is a systemic need to ensure that only the matters intended to fall within the autonomous concept of an enforceable authentic instrument under the Regulation or Convention in question should be permitted to engage with the provisions dealing with authentic instruments. Thus, by analogy with the reasoning of the European Court of Justice in Solo Kleinmotoren GmbH v Emilio Boch, which distinguished ‘settlements’ from ‘judgments’, a document described as a ‘settlement’ or a ‘judgment’ should not, without further investigation that establishes it to be an ‘enforceable authentic instrument’ within the meaning of the relevant Regulation or Convention, be processed as such by any Brussels I regime or Lugano Convention provision.67 According to some German scholars neither a private out-of-court settlement nor a mediation agreement can amount to an authentic instrument.68 The Mediation Directive has however affected aspects of this matter.69 Similarly, an attempt to enforce a Swedish private written agreement concerning maintenance was rejected by a German appeal court in 2007 as, though the document produced was duly witnessed and domestically enforceable under Swedish law, it was not regarded as a public document;70 had the maintenance agreement instead been drawn-up or certified by the Swedish maintenance office it seems that the document would have been regarded as sufficiently ‘public’ and hence would then have been enforceable as an authentic instrument within the scope of the Brussels I Regulation.71

67 C-414/92 Solo Kleinmotoren GmbH v Emilio Boch [1994] ECR I-2237. Also, OLG Köln 17 November 2004, 16 W 31/04 in which the German court concluded that the Italian order (a decreto ingiuntivo) with which it had been presented was not an Art 57 authentic instrument but was instead an Art 32 judgment. Both the BGH and the ECJ in their respective decisions concerning Unibank decision, n 22 and n 36, also examine whether the document at issue falls within the European legal concept of an authentic instrument. 68 See Dörner in Saenger/ZPO p.3290 note 3. Dörner suggests, with references, that the position is less clear concerning enforceable settlements agreed between lawyers so authorised by their clients if those settlements are then subjected to the domestic procedures envisaged by §796 a ZPO: in this eventuality something that is domestically enforceable but is not a ‘judgment’ and not a ‘settlement’ within the meaning of the Brussels I understanding of these concepts is produced via §§796 b–c ZPO by the intervention of a court or a notary. Though it does not appear unreasonable to consider it to be an enforceable authentic instrument, the view is a contested one: Schlosser (P Schlosser, EU-Zivilprozessrecht Kommentar 3rd edn (Munich, CH Beck, 2009) the 4th edition of this classic work does not consider the issue) is generally against it, preferring to characterise any order emerging from this process as a judgment, but notes that Trittmann and Mertz, Die Durchsetzbarkeit des Anwaltsvergleiches gemäß §§ 796a ff. ZPO im Rahmen des EuGVÜ/LugÜ, IPRax 01,178 take another view. 69 Art 6(2) of the Mediation Directive specifies that the content of the agreement reached during the mediation can be given cross-border effect by inclusion in an authentic instrument. See Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters OJ L 136, 24.5.2008, 3–8, the transposition date was 20 May 2011. 70 OLG Karlsruhe FamRZ. 07,1581 discussed by Dörner (n 68) and by Hüßtege Art 58 note 2 Thomas/Putzo p.2153. 71 See Hüßtege (n 70) discussing such a case from OLG Düsseldorf 3 W 276/01 FamRZ.02 1422.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  139 Equally, all the Regulation and Convention provisions concerning the crossborder circulation of authentic instruments require that, as well as passing the common Article 1 material scope hurdle, they must be enforceable authentic instruments: these two requirements dramatically reduce the number of authentic instruments that may circulate via these Conventions and Regulations. An authentic instrument without enforceable content cannot proceed via a Brussels I family Convention or Regulation. Though it remains to be established what exactly is meant by ‘enforceable’ in this context; a declaratory authentic instrument with no paying or doing obligations may, depending on the domestic uses to which such a declaratory authentic instrument may be put, not be sufficiently ‘enforceable’ for the Brussels I family to allow it cross-border legal effect.72

B.  That the Authentic Instrument Falls within the Temporal Scope of the Regulation or Convention If an authentic instrument is to be enforced under the Brussels Convention, the Lugano Convention 1988, the Brussels I Regulation, the Lugano Convention 2007 or the Brussels Ia Regulation it must fall within the temporal scope of the Convention or Regulation selected: there is no retrospective or prospective effect for authentic instruments, the ECJ rejected an early attempt to use the Brussels Convention, in force for the original Member States on 1 February 1973, to enforce a notarial authentic instrument drawn-up on 5 April 1972.73 An authentic instrument drawn-up or registered in the (Member) State of origin before the entry into force of the Convention or Regulation, or after that Convention or Regulation has ceased to apply, cannot be enforced via that Convention or Regulation as it falls outside its temporal scope.

i.  Brussels Convention For the Brussels Convention the start date varies according to when the Member State joined the EEC. For the original six Member States inter se the start date is 1 February 1973. For the Member States who joined via the 1978, 1982, 1989 and 1996 accessions, the start date is initially determined by the entry into force of the Convention consequent upon their accession, this does not give a uniform

72 A declaration of paternity in an authentic instrument could not, according to the French Cour de Cassation, be enforced via Art 50 Brussels Convention in Gilbert Tonon v Office Cantonal de la Jeunesse de Tutlingen [1995] ILPr 23. However, a German Urkunde from a district office of the Berlin ‘city-state’ that imposed a monthly financial obligation on X (an adult) to pay maintenance to a child was held by the Court of Appeal of ‘s-Gravenhage to be an authentic instrument within Art 50 of the Convention; Raad voor de Kinderbescherming Middelburg v X (1986) NJ 512: Case 741 Kaye: Casebook. 73 C-148/84 Deutsche Genossenschaftsbank v Brasserie du Pêcheur [1985] ECR 1981.

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entry into force date for each accession.74 The lack of uniformity is relevant as a consequence of Article 54 of the Brussels Convention which requires that for the operation of, inter alia, its Article 50 provision the Convention must be in force in both the Member State of origin and in the Member State in receipt. To enforce a Greek authentic instrument via Article 50 of the Brussels Convention it would have to have been drawn-up or registered in Greece on or after 1 April 1989 and this time of drawing-up or registration must synchronise with the operation of the Brussels Convention at that time in the Member State selected for enforcement.

ii.  Lugano Convention 1988 As between its original contracting states Article 61(3) of the Lugano Convention 1988 sets the general point of entry into force and Article 61(4) determines its entry into force as between signatory states.75 The dates of entry into force for the original contracting states range between 1 January 1992 and 1 October 1997. As the 1988 Convention parallels the Brussels Convention, its Article 54 provision also requires that an authentic instrument presented for enforcement by Article 50 Lugano must have been drawn-up or registered when the Lugano Convention was in force in both the State of origin and in the State selected for enforcement. For Poland, which joined later, Article 62 establishes the entry into force date as 1 February 2000:76 if an authentic instrument was drawn-up or registered in Poland on or after that date (and before the Brussels I Regulation applied to Poland) its necessary compliance with Article 54 Lugano Convention 1988 would potentially allow it to be enforced via Article 50 Lugano Convention 1988 in States then subject to this Convention. Neither the Brussels Convention nor the Lugano Convention 1988 have technically been denounced by their signatories. They have however for all ordinary purposes been supplanted by later provisions: ie the Brussels I Regulation and the Lugano Convention 2007 respectively.

iii.  Brussels I Regulation For authentic instruments Article 66(1) of the Brussels I Regulation sets the start-point of its temporal application as beginning after its entry into force in

74 For the first accession the dates are: UK 1 January 1987, Denmark 1 November 1986, Ireland 1 June 1988. For the Greek accession the date is 1 April 1989. For the third accession: Spain 1 February 1991; Portugal 1 July 1991. For the fourth accession: Sweden 1 January 1999; Finland 1 April 1999; Austria 1 December 1996. 75 For the entry into force dates see Layton and Mercer (n 11) para 33.010, 1129: also www.eda.admin. ch/eda/fr/dfae/politique-exterieure/droit-international-public/traites-internationaux/depositaire/ autres-conventions/convention-concernant-la-competence-judiciaire-et-l-execution-des-decisionsen-mati%C3%A8re-civile-et-commerciale.html. 76 Concerning Poland and Lugano 1988 see Layton and Mercer (n 11) para 33.015, 1131.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  141 the Member State of origin. For Member States subject to the original Brussels I Regulation this entry into force is 1 March 2002. For the 10 Member States acceding in 2004, the date is 1 May 2004. For the two Member States acceding in 2007 the date is 1 January 2007.77 For the Member State that acceded in 2013 the Brussels I Regulation entered into force on 1 July 2013.78 Article 66(1) of the Brussels I Regulation dispenses with the requirement under Article 54 of the Brussels Convention that the Convention be in force in both the Member State of origin and the Member State addressed at the time when the authentic instrument was drawn-up or registered. It therefore suffices for the temporal application of the Brussels I Regulation if the authentic instrument was drawn-up or registered when that Regulation was only in force in the Member State of origin.79 Though the Regulation must be in force in the Member State targeted for enforcement at the time the Article 57 enforcement is sought, there is thus no longer a need to synchronise the ‘creation’ of the authentic instrument with the temporal application of the Regulation in both Member States under the Brussels I Regulation. In rejecting an attempt by the German creditor to enforce German authentic instruments drawn-up in 1998 and 2000 in Spain using Article 57 of the Brussels I Regulation a Spanish appeal court allowed the enforcement to proceed instead via Article 50 of the Brussels Convention: this was only possible in accordance with Article 54 Brussels Convention as at the time of drawing-up of the authentic instruments the Brussels Convention was in force both in Spain and Germany.80 The temporal end-point of the Brussels I Regulation is 9 January 2015. If an authentic instrument is drawn-up or registered in an EU Member State on or after 10 January 2015, it cannot be enforced via Article 57 of the Brussels I Regulation as it falls outside its temporal scope.81

iv.  Lugano Convention 2007 Unlike the Brussels I Regulation on which it is mostly based, the temporal application of the Lugano Convention 2007 has, in Article 63, retained the requirement

77 For the Member State (Croatia) that acceded in 2013 the Brussels I Regulation did not enter into force but the Brussels Ia Regulation came into force on 1 July 2013. 78 Concerning the 1 July 2013 Croatian accession P Mankowski deduces that it had the effect of applying Regulation 1215/2012 as of that date in Croatian law; if this view is correct then Art 66(2) of the newer Regulation continues the application of the older Brussels I Regulation to matters including the drawing-up or registration of authentic instruments prior to 10 January 2015. If the view is not correct then presumably the date of accession sees the application of the Brussels I Regulation. See U Magnus and P Mankowski, Brussels Ibis Regulation (Cologne, Dr. Otto Schmidt, 2016) at p. 1014 note 7. 79 The position for judgments is different, see Art 66(2) Brussels I and C-514/10 Wolf Naturprodukte GmbH v SEWAR ECLI:EU:C:2012:367. 80 Audiencia Provincial Palma de Mallorca (ES) 17.12.2007–174/2007 Unalex ES-292 and JURE 40552. 81 Arts 58 and 60 of Regulation 1215/2012, the Brussels Ia Regulation, apply from 10 January 2015.

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in Article 54 Lugano Convention 1988 that the cross-border enforcement of an authentic instrument requires that the 2007 Convention was in force in both the State of origin and in the State addressed at the point when it was drawn-up or registered.82 The date at which the 2007 Convention became operative varies according to the ratification date of the non-EU parties and according to the accession date of the EU parties. For all EU Member States as of 2010 and for Denmark and Norway this date is 1 January 2010. For Switzerland the date is 1 January 2011. For Iceland the date is 1 May 2011. For Croatia the date is 1 July 2013. The duration of the second Lugano Convention is unlimited and it is presently in force. Though it may be that eventually there will be an attempt to replace the Lugano Convention 2007 with a new convention more closely aligned with the Brussels Ia Regulation, there is no evidence of this plan at present.83

v.  Brussels Ia Regulation The temporal start-point of the Brussels Ia Regulation is 10 January 2015 for all Member States. An authentic instrument drawn-up or registered in an EU Member State on or after 10 January 2015 can, in temporal terms, be enforced via Articles 58 and 60 of the Brussels Ia Regulation. Article 66(1) of the Brussels Ia Regulation also dispenses with the need to synchronise the creation of the enforceable authentic instrument across the Member State of Origin and the Member State addressed. At the time of writing there are no plans to replace the Brussels Ia Regulation and it remains in force.

C.  That the Authentic Instrument was Drawn-Up or Registered in the Member State or Convention State of Origin via the Intervention of a Public Authority of that State which thereby has Established its Authenticity in the State of Origin Concerning its Content These conditions for validity have been mostly dealt with above in the section considering the Unibank case; the comments that follow are hence confined to matters not dealt with above. Without sufficient intervention by a public authority in the Member State of origin at the point of drawing-up or registering an

82 See T Domej, Art 63, 939, n 22 in Dasser and Oberhammer, Lugano-Übereinkommen (LugÜ) 2nd edn (Bern, Stämpfli Verlag AG, 2011). 83 See S Giroud, N Meier, R Rodriguez, ‘Le Règlement Bruxelles I bis, Un Modèle Pour Une Nouvelle Convention De Lugano?’ in E Guinchard (ed), Le Nouveau Règlement Bruxelles I bis (Brussels, Bruylant, 2014) 419 ff.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  143 enforceable authentic instrument, cross-border enforcement is not possible via the appropriate Convention or Regulation provisions. It is suggested that the tenor of Unibank and associated cases indicate that courts and enforcement authorities will take a conservative approach to what may be deemed to be a public authority and who may represent it. It seems uncontroversial to assume that courts, official registries and/or official registrars could all qualify as such public authorities. Equally, it may be assumed that notaries of a ‘Latinate’ legal system, judges, registrars and other legal officers explicitly associated with the domestic creation of authentic instruments or public documents employed in the administration and/ or enforcement of justice in the Member State of origin84 should qualify as persons who may be deemed to act as public authorities.85 It does not however follow that because a person may act as or on behalf of a public authority to create an authentic instrument he has so acted in the instant case; in Zilken and Weber v Scholl the President of the District Court of Maastricht rejected the attempt of two German notaries to argue that a bill of costs that they had rendered domestically enforceable in Germany could then be enforced in the Netherlands as a cross-border authentic instrument via Article 50 Brussels Convention.86 Either notary could normally have acted to draw-up an authentic instrument capable of cross-border enforcement, in this case however the two notaries were acting together to try to expedite a costs payment from their Dutch domiciled client: thus they did not act as representatives of public authorities in the Member State of origin in this case and the enforceability of their costs order was hence confined to Germany. Assuming a qualifying intervention of a qualifying public authority is demonstrated, it is then necessary to show that this intervention thereby established the domestic authenticity of the ‘content’ of the authentic instrument and not just its signature. Though the signature may additionally have authenticity conferred upon it, the determinative factor for the second of the Jenard/Möller criteria concerns whether the public authority has conferred a more general authenticity on the content of the document: to do so the public authority must act to authenticate at 84 Spanish law includes a class of public officers Corredores de Comercio Colegiados who are, to the commercial extent of their powers, domestically analogous to Spanish notaries and must to be involved in certain stipulated commercial transactions which they register in the official commercial registry to give these transactions the domestic status in Spain of formally valid enforceable public documents. Certified commercial loan contracts drawn-up by a Spanish corredor colegiado de comercio in Spain were – after an investigation by the French court of; a) the domestic legal status of the Spanish official to determine if he was a ‘public officer’; b) whether the disputed documents were formally valid in Spain; c) whether they were domestically enforceable – held to be an enforceable authentic instrument in France according to a decision by the Cour d’appel Aix-en-Provence (FR) 02.03.2000 UNALEX case FR-2278. See Hüßtege (n 70) 2153 who speculates that this conclusion would follow in Germany too. 85 It is widely assumed that consular officials who are accorded certain notarial functions by Art 5(f) of the Vienna Convention on Consular Relations of 24 April 1963 therefore also qualify as a public authority competent under a Brussels I Convention or Regulation. See R Geimer in R Geimer/ R Schütze, Europäisches Zivilverfahrensrecht 3rd edn (Munich, C H Beck, 2010) 838 and Hüßtege (n 70) 2153. 86 Zilken and Weber v Scholl (1982) NJ 466, President of the District Court of Maastricht, 11 Nov 1981: Case 740 Kaye: Casebook.

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least some of those facts that it can ‘properly’ authenticate in the course of ‘creating’ the domestically enforceable authentic instrument. This matter splits into two sub-questions that the Court of Justice in Unibank did not explore. The first sub-question is: what can the public authority authenticate? This refers us back to the law of the legal system of drawing-up or registration and to what it allows the public authority in question to authenticate during creation. If it is not permitted in the State of origin to ‘authenticate’ a given matter but the notary wrongly or mistakenly attempts to do so anyway, this improper authentication cannot technically be enforced in the enforcement State even though that State would allow its own notaries to make such an authentication. The second sub-question is: what has the public authority authenticated in this case? Have they authenticated enough of the document to allow Article 57 to operate? In relation to notaries, who it must be noted are only one of the potential classes of ‘creators’, it will be remembered that not only may they only ‘authenticate’ that which their legal system allows but also that each notarial authentication is particular to that which the notary authenticates in the instant case. For obvious reasons, it is wrong to assume that a notary, who may usually authenticate that which he sees, hears and can verify as true at the relevant moment when drawingup the authentic instrument, routinely confers authenticity on all such content within the specific authentic instrument; it may be that though in a technical sense such an authentication was possible, the notary has declined to authenticate a given fact.

D.  That the Authentic Instrument Satisfies the Requirements for its Domestic Enforceability in the State of Origin The authentic instrument at issue must have the formal domestic executory force characteristic of this legal institution in the Member State of origin. Whether because of how it was drawn-up (eg via a notary) or how it was registered (eg as an enforceable entry in an official register), it must be capable of founding some form of domestic enforcement proceedings ‘as such’, ie if arising in France being an example of a titre exécutoire, or, if arising in Germany being an example of a Vollstreckungstitel. What seems to be required by the third criterion of the Jenard/ Möller Report is that, certainly at the point of export, the authentic instrument is something that the Member State of origin regards as a formally valid executory title which can be enforced in the domestic legal system without any need for further judicial proceedings to allow this possibility.87 Depending upon how this requirement is interpreted it may prevent or delay the cross-border enforcement of notarial authentic instruments from Bulgaria,



87 Jenard

Möller Report (n 24) para 72 third criterion.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  145 Lithuania, Romania and Slovakia – each of which require judicial intervention to allow enforceability to their authentic instruments.88 For Estonia and for Malta the requirement will also restrict the potential types of domestic notarial authentic instruments that their legal systems may export to those that do not require subsequent domestic judicial permission to be enforceable.89 The application of the third Jenard/Möller criterion cannot be dismissed in so far as it concerns the authentic instruments of new Member States. Though the criterion was laid down for a situation peculiar to the planned interrelation of the EEC and EFTA States in the Lugano Convention of 1988, it has since been brought into the mainstream of the acquis via the Unibank decision and via subsequent legislative provisions. Equally, this criterion was originally stated in an official report in the knowledge that Switzerland had, and may indeed still have, exactly this difficulty with the export of authentic instruments that require subsequent permission from a Swiss court to become even technically capable of domestic enforcement. It is possible to construe the third criterion strictly, to prevent those Member States and States that require subsequent judicial permission from ever exporting their authentic instruments. This approach does however suffer from the logical difficulty that it discounts the difference between a provisionally enforceable and an actually enforceable authentic instrument. It seems disproportionate to enable or disbar the export of all authentic instruments otherwise potentially enabled to circulate within the other Member States of the EU or EFTA on the basis of an initial domestic procedural classification that, even in its positive form of ‘enforceable’, does not necessarily guarantee anything other than a technical enforceability of the authentic instrument in the Member State of origin. That said, it would clearly be wrong to empower the cross-border enforcement of authentic instruments that lack domestic enforceability.90 It is one thing to extend the enforceability of an authentic instrument across Member State borders but quite another to anticipate such enforceability due to the export of an authentic instrument with limited challenge opportunities in the enforcement venue. It is therefore suggested that the problems posed by the third criterion of how to treat the authentic instruments of Member States that require subsequent judicial intervention as independently executory titles may best be circumvented if the later application of the creditor to the domestic judge should be regarded as either; a perfecting intervention by a public authority that then confers the 88 P Beaumont, J Fitchen and J Holliday, The Evidentiary Effects of Authentic Acts in the Member States of the European Union, in the context of Successions, 15.03.2016 PE 556.935 at pages 72 (Bulgaria); 152 (Lithuania); 196 (Romania) and 206 (Slovakia). NB. No trace can be found of the passage of the proposed legislation noted at 152 of this study concerning Lithuania. 89 ibid 99 (Estonia) and 165 (Malta). 90 In the different context of the European Account Preservation Order Regulation it has been held by the CJEU that a domestic Bulgarian order that was not as such immediately enforceable (appeal was still possible) could not be regarded as an authentic instrument within Art 4(10) of Regulation (EU) No 655/2014.

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necessary third criterion of domestic enforceability on the notarial authentic instrument, or by regarding such ex post facto judicial intervention as a form of registration procedure that itself then allows the necessary subsequent domestic enforceability.91 It is possibly useful to notice that though the requirement for domestic enforceability does include the formal validity of the authentic instrument, it does not at this point include or concern the material validity of the juridical act that the enforceable authentic instrument purports to include. Just as in the context of the domestic legal systems considered in the chapters above, the enforcement Member State cannot meaningfully police the validity of the negotium of the authentic instrument via exequatur proceedings. Any doubt on this matter is mainly a consequence of what seems to be a misreading or misunderstanding of an unusual case decided by the Cour d’Appel Luxembourg in 1992.92 The case concerned an attempt by the authentic instrument creditor to seek a declaration of enforceability from the courts in Luxembourg concerning a mortgage obligation that the debtor, as the intended buyer of land in Germany, had assumed from the creditor via the alleged authentic instrument. The creditor sought to register the mortgage obligation for DM1.8M in Luxembourg against assets of the debtor also located in Luxembourg. The initial Article 50 Brussels Convention application was granted; the debtor appealed on various procedural grounds but also wished to argue in the exequatur appeal that the authentic instrument could not be enforced in Luxembourg because the contract of sale that it concerned in Germany had been unilaterally terminated by the creditor. Essentially the debtor sought to ‘short-circuit’ the cross-border proceedings by pointing out to the exequatur court in the enforcement venue that there was no longer any sale contract to enforce. Even if it is assumed that the termination of the sale contract also terminated all associated claims by the creditor such an attempt to shortcircuit the proceedings is dependent on the Member State court’s willingness to find such pleas to be proper during the exequatur proceedings/appeals. In this case the court refused to allow this argument to proceed during the exequatur proceedings for the entirely proper technical reason that the debtor’s claim on termination was one that only concerned the validity of the negotium or juridical act contained inside the authentic instrument: the court explained that it could not approve or police this issue via an exequatur appeal and that the debtor would have to contest it in Germany (the Member State of origin). On the facts it was the creditor’s non-compliance with Articles 46(1) and 47(1) of the Brussels Convention that led the Luxembourg appeal court to refuse

91 See discussion above of these issues in the Lugano Conventions in the context of Switzerland in s I.B. 92 In Lindner v Tilman, Cour d’appel Luxembourg 25.11.1992–12720 LU-94 Unalex also summarised, very shortly and somewhat inaccurately, by P Kaye’s European Case Law on the Judgments Convention 1st edn (Chichester, John Wiley & Sons, 1998), at 697, and discussed, accurately, by Layton and Mercer (n 11) at para 29.016.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  147 the exequatur.93 The case is thus authority for a well-established principle that allegations by the debtor of material invalidity of the juridical act (ie a negotium challenge) are not usually permitted during the exequatur process. To have held otherwise would have amounted to the introduction of a recognition stage (peculiar to Luxembourg) for the material content of incoming authentic instruments.94 The case does not establish that formal invalidity is irrelevant to exequatur as, on the admittedly unusual facts, no formal invalidity was advanced or argued. The case does establish that during such exequatur proceedings the enforcement venue may regard a challenge to the material content of an authentic instrument as properly reserved to the State of origin (or any other appropriate venue according to the applicable law appropriate to the juridical act in question) and that if the debtor wishes to raise the invalidity of the juridical act as a reason not to be regarded as ‘a debtor’ they must do so either in the State of origin, or, after e­ xequatur has been granted in the enforcement State during the actual enforcement proceedings (assuming that the actual enforcement provisions of the enforcement State allow this).

E.  That the Enforcement of the Authentic Instrument would not be (Manifestly) Contrary to the Public Policy of the Member State or Convention State Addressed Once the creditor has demonstrated, as required by the instant Convention or Regulation, that their authentic instrument satisfies the abovementioned criteria, it is thenceforward assumed to be valid for enforcement in the State addressed: as long as this assumed enforceability is not revoked by any later procedures allowed by the relevant Convention or Regulation, the exequatur concerning the crossborder enforceability of that authentic instrument provided by a given Convention or Regulation from the Brussels I family may only be resisted on the basis that its enforcement would be (manifestly) contrary to the public policy of the enforcement State. If such a breach of public policy cannot be established by the debtor, the cross-border enforcement of the authentic instrument proceeds (or resumes) to exequatur in accordance with the provisions of the relevant Convention or Regulation and then is subject to the enforcement law of the enforcement State: though in a sense the matter is then outside the scope of this book, this transition may then present the debtor with a further range of options to resist actual enforcement (rather than attempting to resist the exequatur declaration) via the enforcement law of the enforcement State. This possibility is most noticeable in States that know the authentic instrument as a domestic legal institution and that 93 One can only speculate as to how the initial exequatur application had ever been allowed. 94 A point made in P Gothot and D Holleaux, La Convention de Bruxelles du 27.9.1968 1st edn (Paris, Editions Jupiter, 1985) at para 410 – also referred to with approval by the decision of the Luxembourg Cour d’appel.

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follow something resembling the Germanic approach to civil procedure rules associated with the actual enforcement of incoming foreign titles. Having set out the basic requirements for an enforceable authentic ­instrument to be eligible for cross-border enforcement via the Brussels and Lugano Conventions and via the Brussels I and Brussels Ia Regulations it is now useful to clarify and consider the two options facing the debtor who would oppose it in the enforcement State. The enforcement via the relevant Convention or Regulation can be challenged on two bases: first, by showing that the presented authentic instrument does not comply with the essential requirements set out above in (a)–(d); second, by arguing that the enforcement is (manifestly) contrary to the public policy of the enforcement State.

i.  Domestic Formal Validity Challenge and Different Enforcement Procedures In one sense the first challenge option is very simple: a debtor who demonstrates to the court or to the relevant authorities in the enforcement State that the authentic instrument produced for enforcement is not capable of enforcement, under the Convention or Regulation in question, because it does not comply with the admissibility requirements set out above in relation to points (a)–(d), will normally be successful in ‘de-railing’ the creditor’s cross-border enforcement application in that or any other Convention or Regulation State.95 The extent to which the debtor may challenge enforcement in the enforcement State depends on two matters: first, what the debtor may argue before the enforcement court plus the related question of what that court may consider in reaching a decision; second, at what point in cross-border enforcement proceedings are ­challenge opportunities provided by the relevant Convention or Regulation? a.  What may be Argued and Considered? The debtor can oppose enforcement by arguing: i) that the authentic instrument is not within the civil and commercial subject matter scope or temporal scope of the relevant Convention or Regulation; ii) that it is not within its autonomous concept of an authentic instrument; iii) that it was not drawn-up or registered in the Member State (or Convention State) of origin; iv) that though drawn-up or registered in the State of origin, this occurred without the requisite intervention of a public authority necessary to establish ‘authenticity’ concerning the content of the authentic instrument; v) that the authentic instrument does not satisfy the

95 For an unusual example where the ‘derailment’ of Brussels I Regulation proceedings by the debtor on temporal grounds saw the enforcement court simply shift the proceedings to the Brussels Convention, see Audiencia Provincial Palma de Mallorca (ES) 17.12.2007–174/2007 Unalex ES-292 discussed below.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  149 domestic formal validity or enforceability requirements imposed by the State of origin; and potentially vi) that the enforcement is contrary to their human rights.96 Subject to the relevant procedural opportunities provided by the relevant Convention or Regulation, it is suggested that the enforcement court not only can, but must be willing to consider all competent and plausible arguments advanced on these issues by the debtor (and arguments or counter-arguments from the creditor) because they go to the basic question of whether the Convention or Regulation is applicable on the facts to allow the requested cross-border enforcement. As noted above and discussed in detail below (concerning public policy) in the context of authentic instruments it is ambiguous whether the textual restriction on a révision au fond, as is provided consistently for judgments, also applies to authentic instruments to prevent the enforcement court from considering their content for the limited purposes of determining Convention or Regulation applicability (and public policy compliance). It is suggested that the enforcement court should provide the debtor with the procedural opportunity to respond to counter the creditor’s claim to be possessed of a formally valid authentic instrument from the Member State of origin that entitles them to use the relevant Convention or Regulation to facilitate cross-border enforcement. This echoes a similar right which it is suggested does and should apply to the creditor if exequatur/enforcement has been refused. The texts and basic procedural parity between debtor and creditor lead to these conclusions; another issue reinforcing the conclusion is that without such procedural mechanisms and willingness there is a risk of a systemic nonsense whereby the authentic instrument de facto enjoys a greater status of un-contestable enforceability in foreign enforcement States than it was or would be given by its state of origin. If it is accepted that such procedural possibilities must be accommodated, the next question concerns their limit. The answers to this question will depend upon the procedural possibilities associated with the Convention or Regulation under which the enforcement application is brought, and upon the freedom of action remaining to the national court (or in many cases to the CJEU if a preliminary reference should be possible) on any given competent challenge. The different Convention and Regulation procedures are discussed below; the extent of the formal validity challenge is now briefly addressed. The possibility of challenging the validity of an authentic instrument during either a foreign exequatur procedure (via the Brussels Convention or via the Brussels I Regulation) or in the context of a debtor’s challenge to enforcement via Article 46 of the Brussels Ia Regulation is

96 Though the structure of the Brussels I and Lugano provisions do not mandate it, in many cases a human rights defence would be associated with a public policy challenge. There is no provision in the relevant Article texts of the Brussels or Lugano Conventions or the Brussels I or Ia Regulations that states that a human rights defence exists (though see Recitals 29 and 38) but it is unarguable that crossborder enforcement cannot lawfully continue or follow via a Convention or Regulation if this seriously breaches the debtor’s human rights.

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widely regarded as being restricted to validity challenges that concern the formal validity of the presented authentic instrument under the law of the Member State in which it was drawn-up by a notary or created by official registration. Though distinguishing between formal and substantial invalidity may occasionally be difficult,97 it seems improbable that a court seised with a validity challenge concerning the disputed cross-border enforcement potential of a foreign authentic instrument would wish to consider wider questions concerning its material validity: were it to do so it would arguably infringe the sovereignty of the Member State of origin by attempting to ‘police’ the actions of its notaries and it would quite probably also violate the EU principle of mutual trust. The wish to avoid an implicit infringement of the sovereignty of the State of origin, and also a pragmatic awareness of the difficulties of attempting this exercise in impotence from outside the relevant jurisdiction, explain why the French legal system has traditionally been unwilling to allow the exequatur of foreign authentic instruments proceeding via Article 509 CPC to extend beyond examining issues of formal (in)validity.98 According to French law, the French judge must only establish formal validity in the place of drawing-up and then whether enforcement is consonant with French public policy: allegations of material invalidity and alleged notarial misconduct must be resolved in the State of origin.99 As the German legal system will not allow the cross-border enforcement of foreign authentic instruments other than based upon Treaty or other international legal measures it is not confronted with the same questions as the French Legal system.100 In the context of the Brussels I and Lugano regimes it is suggested that the relevant Member States should continue to follow something similar to the

97 As well as issues that potentially straddle the formal and material invalidity of an authentic instrument (eg the identity of a party to that instrument), another difficulty may be that the invalidity may fall outside the scope of the relevant EU provision (eg if it concerns a matter of personal capacity). May the enforcement court address this issue and if so how does it do so? In 1972 Georges Droz suggested that if a matter disputing the formal validity of the authentic instrument fell outside the scope of the Brussels Convention it could be appropriate to allow an exequatur court to determine issues of validity via its own conflict of law rules (Droz in Compétence Judiciaire et Effets des Jugements dans le Marché Commum 1st edn (Paris, Dalloz, 1972) at para 623). Pierre Callé has however argued, convincingly, that this suggestion ignores the distinction between instrumentum (which according to French law may always be reviewed during exequatur) and negotium (which French law will not allow to be so reviewed via exequatur) P Callé, L’acte public en droit international privé 1st edn (Paris, Economica, 2004) at 342 n 1. 98 See Cour de Cassation, Chambre civile 1, du 20 mars 2001, 99-12.364. The French court declared it to be impossible for it to quash or entertain an inscription de faux procedure concerning a will made by a French national in Italy before an Italian notary: Muir Watt discusses the extent to which a challenge to formal validity (which did not as such arise on the facts of the instant case) must always be feasible despite the absence of substantive jurisdiction or any general competence to police the actions of notaries of other States. See case note by H Muir Watt, (2001) 90 (4) Revue critique de droit international privé 697 at 701. 99 See Cour de Cassation, Chambre civile 1, du 22 novembre 2005, 04-10.045 – concerning the Franco-Tongolaise Treaty of 23 March 1976, and case note by P Callé in (2006) 95 (2) Revue critique droit international privé. p. 422. 100 See §438 ZPO concerning the authenticity of foreign public documents.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  151 domestic French position by restricting any validity challenge to matters of formal validity:101 if this position is coupled with a robust willingness to employ the public policy exception, as is suggested below, it seems an adequate procedural compromise between creditor and debtor which also respects the national sovereignty of the sending and the receiving Member States and also avoids the considerable, if counterintuitive, pitfall of the enforcement venue pronouncing positively on the material validity and content of the foreign authentic instrument during an exequatur procedure or during an enforcement challenge.102 b.  Enforcement Procedure via the Brussels I and Lugano Regimes in the Enforcement State The greatest changes to the cross-border enforcement of European authentic instruments have occurred in relation to the applicable enforcement procedures. These changes were introduced because of a series of policy decisions advanced by the European Commission, and assented to by the Member States, concerning the ‘enhancement’ of the cross-border exequatur procedures facing a judgment creditor. Though the debates on such enhancements were not directed at the particular case of authentic instruments, the reforms have always been copied across, as far as possible, to authentic instruments and court settlements. For authentic instruments these reforms have been problematic. Not only do they unbalance the original procedures, mostly to the advantage of the creditor, they also obstruct the legitimate use of the public policy exception in and by the enforcement State by denying its courts access to this option until an appeal/ enforcement challenge is brought. The reforms also increase the existing ‘insulation’ of authentic instruments (due initially to their non-contentious nature) from any effective supervision by national and even EU courts when cross-border enforcement is at issue.103 These outcomes exemplify the dangers of blithely conflating authentic instruments with judgments; as will be seen in later chapters, this unfortunate tendency – which was expressly resisted at the point of setting up the Brussels Convention – recurs throughout subsequent EU private international law concerning authentic instruments. The enforcement procedure for enforceable ‘civil and commercial’ authentic instruments falling within the Brussels I regime has changed through three phases. The original position under the Brussels Convention (and hence also under the parallel Lugano Convention 1988) was very reminiscent of the earlier position under the bilateral arrangements that previously applied between most of the original six Member States of the EEC; the creditor had to seek permission 101 As in Lindner v Tilman (n 93) as discussed above. 102 A de facto recognition of the unrecognisable. 103 Notaries cannot fill the gap: no notary can be expert in all EU legal systems and they cannot request a preliminary reference from the CJEU. Notaries are subject to duties of confidentiality. Unless a debtor is willing to pay to litigate the matter and the case is reported it will remain invisible.

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to enforce via an overt exequatur stage before a court in the enforcement State with limited subsequent appeal possibilities for creditor and debtor concerning its decision. In the second phase the Brussels I Regulation (and broadly speaking the Lugano Convention 2007) removed the creditor’s need to request an overt exequatur hearing by making the grant of exequatur for enforcement initially automatic for any creditor who provided the enforcement court with a compliant application (and potentially also a completed standard form);104 after this automatic exequatur application the limited appeal possibilities presented to either creditor or debtor were retained. The third phase has seen the recast Brussels Ia Regulation abolish even an automatic exequatur application requirement; now the creditor presents his enforceable authentic instrument directly to the relevant enforcement agents of the enforcement State(s) and once they are satisfied that the debtor has been served with notice of the impending enforcement, they must enforce it. If the debtor would challenge enforcement in the enforcement State, he must commence the proceedings necessary to do so; limited appeals remain available to either side. The third phase is notable for the fact that, at present, it is only applicable to the EU States and does not affect the 2007 Lugano States; thus, the EU and the 2007 Lugano States are not presently parallel concerning the enforcement procedure for authentic instruments. c.  Brussels Convention and Lugano Convention 1988 Enforcement Procedures Such is the parallelism of the Brussels Convention and the Lugano Convention 1988 that they are identical on the conduct of the cross-border enforcement procedure for authentic instruments. The first application by the creditor will usually105 be ex parte the debtor and made to the enforcement court alone. Article 31 provides for this declaration of enforceability; Article 32 tells the claimant where to direct it and gives that place jurisdiction over the matter; Articles 46 and 47 require the creditor to demonstrate to the court that his authentic instrument is authentic and valid in the place where it was registered or drawn-up by producing an enforceable copy of that document (plus any other documents necessary to substantiate this enforceability). Article 48 allows the production of a translation too (if required) but via Article 49 no legalisation of the specified documents can be required. It seems unlikely that proof of service of the authentic instrument in the State of origin can or should be routinely required for an authentic instrument, but Article 47(1) can be interpreted in this

104 The sensible introduction of standard forms was a further source of change in the Brussels I Regulation (and eventually the Lugano Convention 2007), again derived from judgment procedures, but is useful for the enforcement court as the Annex VI form was sensitively adapted to the different context of authentic instruments. The Brussels Ia Regulation has its even more detailed standard form for authentic instruments in Annex II. 105 Art 33 subjects the enforcement procedure to the law of the enforcement court and requires an address for service for the applicant or an appointment of a representative ad litem.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  153 fashion106 and if such service is required for domestic enforceability then logic requires that it should also be demonstrated to the enforcement court to substantiate domestic validity.107 At the initial ex parte stage the court should only determine whether the creditor has apparently demonstrated the required domestic authenticity/validity and enforceability of his authentic instrument by the documents he has produced. It should then consider if its local public policy apparently prevents the requested enforcement. Detailed investigations into these issues are reserved for inter partes appeals by either debtor or creditor. If the ex parte application results in an enforcement order, Article 36 gives the debtor one or two months to appeal it:108 there is no power for the enforcement court to stay enforcement proceedings.109 For the duration of the Article 36 appeal, only protective enforcement measures may be taken. The Article 36 appeal allows deeper investigation into domestic authenticity/formal validity110 of the creditor’s authentic instrument and/or deeper investigation into issues of local public policy. Article 37(2) allows a further appeal from the Article 36 appeal but on the restricted basis of an appeal on a point of law or for cassation. If the initial ex parte application is refused, the creditor may appeal via Article 40: if they do this Article 40(2) requires that the debtor must be summoned to appear to participate in the deeper investigations into domestic authenticity/formal validity of the creditor’s authentic instrument and into local public policy issues permitted by the Article 40 appeal. Article 41 allows a further appeal from the Article 40 appeal but, again, on restricted to an appeal on a point of law or for cassation.

106 In relation to Art 50(3) of the Lugano Convention it has been held by the Austrian Supreme Court that the ‘as appropriate’ requirement concerning Section 3 of Title II meant that the party seeking enforcement was obliged to demonstrate that the authentic instrument was enforceable and that it had been served upon the target: see OGH (AT) 22.10.2009–3Ob155/09d (Unalex AT- 652). 107 See S O’Malley and A Layton, European Civil Practice 1st edn (London, Sweet & Maxwell, 1989) at para 30.10. 108 Art 36, the extra month is for those not domiciled in the enforcement State. 109 Art 38 makes the grant of a stay for the debtor conditional on the possibility of making of an ordinary appeal in the State of origin. The ECJ in Case 43/77 Industrial Diamond Supplies v Riva [1977] ECR 2175 only considered judgments when it defined an ordinary appeal. To paraphrase the ECJ, an ordinary appeal is one that may lead to the annulment or modification of the original judgment and which is made possible on a routine basis by the fact of the domestic court issuing the original ­judgment. Such an ordinary appeal possibility lasts for a period of time (defined by the domestic law) from the judgment’s date of issue to the expiry of the period in question eg after 14 days. Despite the ECJ in the Industrial Diamonds case explicitly opting not to consider authentic instruments or settlements, the definition provided of an ordinary appeal has been read by some courts to prevent the grant of any stay of the enforcement of an authentic instrument. See Guyot de Mishaegen and Another v Generale Bankmaatschappij N.V. [1990] ILPr 349, concluding that there can be no such stay for an authentic instrument. If this conclusion is correct, there is only the possibility of security being required for protective enforcement that proceeds during the Art 36 challenge. 110 If the debtor wishes to challenge the material content/negotium of the authentic instrument they must do so via the private international law appropriate to that juridical act via a jurisdiction provided by the Brussels Convention or by the Lugano Convention 1988.

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d.  Brussels I Regulation and Lugano Convention 2007 Enforcement Procedures Again, the parallelism of the Brussels I Regulation and the Lugano Convention 2007 is such that they are essentially identical on the conduct of the cross-border enforcement procedure for authentic instruments. The first application by the creditor will be ex parte the debtor111 and made to the enforcement court alone. Article 38 provides for this declaration of enforceability; Article 39 tells the claimant where to direct it and gives that place jurisdiction over the matter; Article 40(3) requires that the documents specified in Article 53 – subject to Article 55(1) – shall be attached to the application for enforcement. Article 41 requires an immediate declaration of enforceability from the enforcement court once the formalities specified by Article 53 have been completed; it also forbids reference to the public policy exception at this point. Article 53 requires that the applicant produce to the court a copy of their authentic instrument that demonstrates its authenticity112 and, subject to the court dispensing with this requirement via Article 55(1), a copy of the Annex VI certificate mentioned in Article 57(4).113 Article 55(2) allows the production of a translation, if required, by the court. Article 56 clarifies that legalisation of the specified documents is not required. At the initial ex parte stage, the court can only determine whether the ­creditor has apparently demonstrated the required domestic authenticity/validity and enforceability of their authentic instrument by the documents they have produced. It must not consider local public policy. If this application results in an enforcement order, Article 42(2) requires that the declaration of enforceability must be served on the debtor and Article 43(5) gives the debtor one or two months to appeal it:114 there is no power for the enforcement court to stay these enforcement proceedings.115 For the duration of any Article 43(5) appeal, Article 47(3) only allows that protective enforcement measures may be taken, there can be no stay granted for the benefit of the debtor for exactly the same reason as prevented

111 Though Art 40 still subjects the enforcement procedure to the law of the enforcement court and requires an address for service for the applicant or an appointment of a representative ad litem, Art 41 forbids the debtor from making submissions at this point in the proceedings. 112 There is no equivalent of the alleged Brussels Convention ‘State of origin proof of service requirement’ under the Brussels I Regulation for authentic instruments. 113 The Annex VI form, which must be signed, dated and stamped by the competent authority, includes data to establish: the State of origin; the identity of the competent authority issuing the certificate; which authority drew-up or otherwise gave authenticity to the authentic instrument (and where this occurred); a description of the authentic instrument (including date of drawing-up/registration, reference number, the parties and the name of creditor and debtor plus the text of the enforceable obligation annexed to the certificate). The form also includes a statement that the authentic instrument is enforceable against the debtor in the Member State of origin in accordance with Art 57(1) of the Regulation. 114 The extra month is for those not domiciled in the State that made the declaration of enforcement. 115 The Art 46 stay requires the making of an ordinary appeal in the State of origin. This cannot occur for an authentic instrument; therefore, no such stay is possible and there is only a faint possibility of security being required for enforcement via Art 46(3).

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  155 this under the Brussels Convention.116 The Article 43 appeal allows deeper investigation into domestic authenticity/formal validity117 of the creditor’s authentic instrument and, for the first time allows the enforcement State to consider local public policy issues pertaining to the enforcement. Article 44 allows a further appeal from the Article 43 appeal but on the restricted basis of an appeal on a point of law or for cassation. If, unusually, the initial ex parte enforcement application is refused, the creditor may appeal via Article 43: if they do this Article 43(4) requires service of information on the debtor concerning their right to participate118 in the creditor’s appeal. The appeal allows deeper investigations into domestic authenticity/ formal validity of the creditor’s authentic instrument and, for the first time in these proceedings allows the enforcement State to consider local public policy issues pertaining to the enforcement. Article 44 allows a further appeal from the Article 43 appeal but, again, on restricted to an appeal on a point of law or for cassation. e.  Brussels Ia Regulation Enforcement Procedures Article 58(1) of the Brussels Ia Regulation applies Section 2, Subsection 2 of Section 3 and Section 4 of Chapter III of the Recast Regulation, ‘as appropriate’, to authentic instruments: this entails a needless trawl through Articles 39–44, Articles 46–51, and Articles 52–57, all read against Articles 58 and 60 to establish the ‘appropriate’ cross-border enforcement procedure for authentic instruments. Imprecise drafting, and the fact that exequatur is no more, mean that this exercise must be carried out by the creditor (or their lawyers), by the enforcement authorities of the enforcement State (ie the Member State addressed), by the debtor (or their lawyers) and potentially by a court in the same Member State addressed. The creditor has no need to make an exequatur application for permission to enforce: Article 58(1) declares this enforceability. The creditor presents their enforceable authentic instrument to the enforcement authorities in the Member State addressed subject to an ‘as appropriate’ interpretation of Article 42(1)(a) referring to a copy of the authentic instrument which satisfies the conditions necessary to establish its authenticity and also the certification of enforceability (mentioned by Article 42(1)(b)) which must refer to an Article 60 certificate that also sets out a summary of the enforceable obligation. Articles 42(3–4) allow for necessary translations or transliterations.119 Article 43(1) seeks to protect the target debtor from entirely unexpected enforcement under an exequatur-free 116 See fn 110 above discussing the definition of an ordinary appeal provided by Case 43/77 Industrial Diamond Supplies v Riva [1977] ECR 2175. 117 If the debtor wishes to challenge the material content/negotium of the authentic instrument they must do so via the private international law appropriate to that juridical act via a jurisdiction provided by the Brussels I Regulation or by the Lugano Convention 2007. 118 Art 43(4) refers to Art 16 of the EU’s Service Regulation 1348/2000 or Art 15 of the Hague Service Convention of 15 November 1965. 119 Art 42(2) does not seem relevant to authentic instruments.

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Regulation that is mainly designed for judgments by requiring that they must be served with a copy of what in the present context will be the Article 60 Annex II certificate120 and possibly the authentic instrument prior to the first enforcement measure. This debtor-protection is continued by Article 43(2–3) which may, if the debtor is domiciled outside the Member State of origin (ie where the authentic instrument was drawn-up or registered), potentially allow the debtor to request a translation of the authentic instrument and the Article 60 certificate in a language specified by Article 43 if – which must be very unlikely – they have not previously been ‘served’ with a copy of the authentic instrument.121 While this translation is being produced only protective measures of enforcement may be levied by the creditor against the debtor if the debtor applies for a refusal of enforcement. A debtor who applies via Article 46 for a refusal of enforcement in the Member State addressed is restricted by Article 58(1) to a challenge-based public policy and by Article 58(2) to the demonstration that the authentic instrument does not satisfy the requirements of authenticity and formal validity in the Member State of origin.122 Article 47 indicates the court to which the debtor must apply and sets out the procedure as well as the documents that they must, or may be required to,123 present to the court. The debtor is however presented by Article 44(1) with a wider suite of options than previously: for the first time it appears that the court may grant a stay of enforcement proceedings to benefit the authentic instrument debtor.124 According to Article 44(2) there will be a suspension of enforcement in 120 The new Annex II mentioned in Art 60 as a certificate also applies to Art 59 Settlements. It expands the detail of the data formerly requested by Annex VI of the Brussels I Regulation to distinguish between payment and non-payment obligations, to include provisions on interest, payment currencies and details of other parties relevant to the enforcement. 121 In most cases the target of enforcement will be a person who, by reason of this involvement in the drawing up or registering of the authentic instrument, will not be able to claim linguistic unfamiliarity relating thereunto. 122 If the debtor wishes to challenge the material content/negotium of the authentic instrument they must do so via the private international law appropriate to its negotium by bringing a claim involving the relevant juridical act in a jurisdiction provided by the Brussels Ia Regulation. 123 As the reduction of unnecessary delays is a central theme of the Re-cast Regulation, Art 47(2–3) aims to restrict the documents that must be routinely supplied and also the need for a service address (or a representative ad litem). 124 Art 44(1) allows the debtor to request that the enforcement court: (a) limits enforcement to protective measures, (b) requires the creditor to provide security for the enforcement, (c) wholly or partially suspends the enforcement proceedings. Though Art 44 arguably can apply to an application by an authentic instrument debtor to stay enforcement, there seemingly can be no equivalent application to stay the enforcement proceedings in the enforcement venue by an authentic instrument debtor based on a challenge brought in the Member State of origin: the second form of stay is governed by Art 51 – which still requires an ‘ordinary appeal’ for it to operate in this fashion. See n 110 above for an explanation of the ordinary appeal concept and J Fitchen in A Dickinson and E Lein (eds), The Brusssels I Regulation Recast (Oxford, Oxford University Press, 2015) 528–29 paras 14.20–21 arguing that Art 51 should not apply to authentic instruments because it would not be ‘appropriate’ for it to do so in the sense that the second paragraph of Art 58(1) requires for such a provision to apply. Fitchen however argues, citing Recitals 29 and 38 in support of this conclusion, that Art 44(1) and (2) can and should apply to authentic instruments as this application is not just ‘ appropriate’ in the Art 58(1) sense, but is essential to preserve the status quo between the parties while challenges are ongoing in the Member State addressed and/or in the Member State of origin to respect fundamental rights, including the right to a fair trial, during enforcement.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  157 the Member State addressed (by its competent authorities) if the debtor applies to show that the enforceability of the authentic instrument has been suspended in the Member State of origin. Article 48 requires that the determination of the Article 46 application be without delay. Article 49 allows either party to appeal the decision and indicates the court to which such an appeal may be made. Article 50 allows a final appeal on a point of law or for cassation to a court indicated by Article 75(c).

ii.  The Public Policy Exception for Enforceable Authentic Instruments via Brussels I It is notable that public policy compliance in the enforcement State is the only exception to cross-border enforcement provided by the Brussels Convention, the Lugano Conventions and by the Brussels I and Ia Regulations that explicitly requires a refusal to grant an exequatur or to continue the automatic enforceability of an incoming enforceable authentic instrument. Judgments are provided with a wider range of options to resist their recognition and or enforcement. An authentic instrument is however not a judgment, is not reached as a judgment, and cannot produce the same legal effects as a judgment; therefore there are fewer reasons to provide protective exclusions and limitations concerning cross-border enforcement of authentic instruments. The public policy exception for enforceable authentic instruments is common to all the instruments that establish the Brussels I family of Conventions and Regulations. Such a public policy provision dates to the enforcement provisions found in the pre-Brussels Convention bilateral conventions with which some of the original six EEC Member States variously sought to facilitate the safe reciprocal cross-border circulation of, inter alia, authentic instruments inter se. Despite its continuity, the Brussels I public policy exception concerning authentic instruments has not yet been considered by the Court of Justice. Nor, so far as the author can discover, has it ever been positively applied with enduring effect125 by the few courts in the EU which have reported the fact that it was even pleaded. The most that can be said of the exception from actual cases is that some domestic courts have rejected attempts by debtors to apply the policy exception to attempt to delay or defeat the creditor’s cross-border enforcement.126 Absent a convincing positive application or authoritative interpretation of the nature of the public policy exception for authentic instruments, it continues to exist in something of an interpretative vacuum dating back to the drafting of the Brussels Convention. In a technical sense we still do not know exactly how this exception should be positively interpreted and or applied. In the absence

125 It was applied by the Landgericht Saarbrücken but did not withstand appeal, see discussion in s III.E.ii concerning OLG Saarbrücken (DE) 06.07.1998–5 W 375/97 Unalex DE-240. 126 See the casual rejection of this argument by the Spanish appeal court in Audiencia Provincial Palma de Mallorca (ES) 17.12.2007–174/2007 Unalex ES-292 and JURE 40552.

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of knowledge, assumptions have had to suffice; one such assumption is that we should, so far as sensible, apply the same principles to the interpretation of the public policy exception for authentic instruments that we commonly apply to the public policy exception in the context of judgments. A qualification of this assumption is required for the obvious reason that an enforceable authentic instrument is not an enforceable judgment. This is clear in all relevant domestic laws and, more pertinently, it is also clear throughout the Brussels I family of Conventions and Regulations – which all separate judgments and authentic instruments into different sections, consistently distinguish between the two concepts, and only ever apply the rules and procedures for judgment enforcement (indicated under the heading ‘Common Provisions’) to authentic instruments with the qualification, ‘as appropriate’. It will be remembered that, concerning the enforcement of authentic instruments, the Jenard Report recorded that the drafting committee had ‘broken no new ground’:127 this conservatism was contrasted by the Report with the more radical approach taken concerning judgments.128 The Jenard committee emphasised in its Report that the Article 27 public policy exception for judgments was intended to be truly exceptional: it could not be used to refuse recognition of a judgment based on an exorbitant ground via Article 4, nor to refuse recognition if the receiving court would have applied another law.129 Any permitted refusal based on the exception had to be on the basis that the requested recognition or enforcement itself would be contrary to public policy in the Member State addressed. Significantly the scope of the public policy exception for judgments was restricted even further as it could not be applied by an exequatur court to the ‘offensive’ content of the judgment: Articles 29 and 34 removed this matter from consideration by prohibiting any révision au fond for the content of a judgment during the exequatur proceedings.130 As far as judgments are concerned, the operation of the public policy exception has continued in this restrictive vein across the different Brussels I/Lugano instruments and indeed it is rarely invoked with success.131 When faced with the legal, textual and systemic differences in the treatment of judgments and authentic instruments in the Brussels Convention, and with an explanatory report that substantiates, justifies and continues these differences, the theoretical justification for applying the public policy exception for judgments in an unqualified fashion to authentic instruments is lacking. The essential

127 Jenard Report (n 1) 56. 128 ibid, 14, which sees reference to the radical nature of the Convention and refutes the idea that the committee may have exceeded its remit, and 42 linking its recognition and enforcement liberality to its jurisdictional provisions. 129 ibid, 44. 130 ibid. 131 See Case C-7/98 Krombach v Bamberski [2000] ECR I-1935; Case C-394/07 Gambazzi v DaimlerChrysler [2009] ECR I-2563 (both concerning the procedural right to be heard) but see however Case C-420/07 Apostolides v Orams [2009] ECR I-3571 where, at paras 58–62, the court explains the restrictive consequences of the Brussels I prohibition of any révision au fond for judgments.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  159 assumed equivalence between judgments and authentic instruments necessary to require the unqualified equation of judgments and authentic instruments does not survive any factual or legal investigation: it was dismissed categorically by Georges Droz (himself uniquely qualified to comment as he had been an observer of the drafting process of the Brussels Convention and was also an expert on public documents) in the course of his lectures on notarial activity delivered at the Hague in 1999.132 Though a general equivalence of judgments and authentic instruments is neither substantiated or required by the texts of the Conventions or Regulations, it may be that it is possible to infer certain commonalities concerning the application of the authentic instruments exception from the operation of the judgments exception. It is plausible to conclude that systemic consistency indicates that the authentic instrument exception should indeed follow the judgment exception in so far as it should also be construed strictly as a true exception to the grant of the exequatur, and further, that its application should relate to the grant of the ­exequatur/automatic enforceability in the enforcement state. It also seems reasonable to suppose that for authentic instruments as for judgments: the public policy at issue is to be determined by reference to the values of the Member State addressed, that it can be substantive or procedural in nature and that it is subject to a potential review of its limits by the European Court of Justice.133 These inferences are however limited to situations in which the text deploying the two public policy exceptions indicates uniformity of intention via drafting and application. A basic question where the texts do not display this uniformity concerns the content of the judgment or authentic instrument and particularly the relevance of content to the application of each public policy exception. Clearly enquiries into the content of a judgment cannot be conducted by an enforcement court when it considers applying the public policy exception to judgments: the express prohibition of any révision au fond for judgments presented for recognition or enforcement resounds through all texts of the Brussels I and Lugano instruments.134 To what extent however should the prohibition on a révision au fond for ­judgments also be applied to authentic instruments to affect the operation of their public policy exception? The prohibition is only expressly applied by the Brussels I or Lugano texts to ‘judgments’; it is thus impossible to infer from these prohibitions 132 ‘Un problème subsiste cependant, les Conventions de Bruxelles et de Lugano ont été construites pour des jugements. On ne peut assimiler l’acte public à un jugement’. G Droz, ‘L’Activité Notariale Internationale’ (1999) 280 Recueil Des Cours extract from para 135, 127 it should be noted that Droz’s view was an informed one; as a First Secretary to the Permanent Bureau of the Hague Conference he was involved as an observer of the drafting committee of the Brussels Convention as a representative of the Hague Conference on private international law. 133 See Case C-7/98 Krombach v Bamberski [2000] ECR I-1935 paras 21–23. 134 The revision au fond for judgments is forbidden whether concerning recognition or enforcement by Arts 29 and 34 Brussels Convention; Arts 29 and 34 Lugano 1988; Arts 36 and 45(2) Brussels I Regulation: Arts 36 and 45(2) Lugano 2007; Art 52 Brussels Ia Regulation. It was also forbidden for judgments in the earlier bilateral arrangements discussed above.

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alone that it applies with like effect to authentic instruments.135 Equally, though the bilateral conventions that preceded the Brussels Convention mostly forbade the révision au fond of judgments they did not extend this to authentic instruments; the enforcement ‘court’ was always entitled to review content to ensure domestic public policy compliance concerning incoming authentic instruments. Unfortunately, all the instruments that comprise the Brussels I family demonstrate a certain laxity of drafting on this point: viz the enforcement provisions for authentic instruments all include the unhelpfully Delphic comment that enforcement shall proceed subject to the earlier judgment enforcement provisions ‘as appropriate’. As the earlier judgment enforcement provisions all do, necessarily, include or refer to a provision forbidding the révision au fond of a judgment during its enforcement, the question of the relevance of this prohibition for authentic instruments is re-introduced and must be addressed to establish whether it is appropriate to apply the révision au fond prohibition to the operation of the public policy exception for an exequatur application or appeal concerning an authentic instrument. It is suggested that the correct answer to this question is that though the enforcement State cannot attempt in the course of such a review to re-work the substance of the authentic presented for enforcement, it can and indeed must be willing to consider the content of that authentic instrument when investigating: a) its formal compliance with the ‘European’ requirements for an enforceable authentic instrument from the Member State of origin, and b) the relevance of its content in a more general sense concerning whether its enforcement is manifestly contrary to public policy in the enforcement State. In the specific context of b) this must allow the authority in the enforcement State to consider and take note of the content of the presented authentic instrument.136 Though possibly surprising to those acclimatised to considering the operation of the public policy exception in the context of judgments without any permissible reference to judgment content,137 this is exactly the conclusion that is mandated

135 See Jenard Report (n 1) at 5 which details the previous approach of the French courts to so reviewing incoming judgments and notes that the Munzer decision (Cass. Civ 1st Chambre 7 January 1964) tried to change this. For further discussion see J Fitchen, ‘Art 52’ in A Dickinson and E Lein (eds), The Brussels I Regulation Recast (Oxford, Oxford University Press, 2015) 13.468, 498. 136 See C Pamboukis, L’Acte Public Étranger en Droit International Privé 1st edn (Paris, LDGJ, 1993) para 436; also see the supportive analysis of Leutner (n 40) 260–62. 137 A different view was taken by Layton and Mercer (n 11) who, in their chapter on authentic instruments at 29.012 cite R Geimer and R Schütze, Europäisches Zivilverfahrensrecht 2nd edn (Munich, Beck, 2004) on the Art 36/Art 45(2) prohibition on a revision au fond for judgments and have concluded it applies to authentic instruments too at 29.016. With respect this may be due to an oversight by Layton and Mercer. Geimer and Schütze’s discussion of Art 57 does not repeat or refer to their earlier comments concerning the Art 36 revision au fond for judgments. As Professor Geimer is a notary and a renowned expert on authentic instruments it is suggested that this absence is significant. The equivalence assumed by Layton and Mercer is also absent from the 3rd edition of Geimer and Schütze: R Geimer and R Schütze, Europäisches Zivilverfahrensrecht 3rd edn (Munich, Beck, 2010).

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  161 by the texts and by reason.138 Logic requires that the public policy exception for authentic instruments cannot be interpreted to deprive it of all application: without considering content, how is the enforcement court to establish whether enforcement of an otherwise compliant authentic instrument is consonant with its public policy? It cannot be that the general prospect of foreign authentic instruments being declared enforceable within the enforcement State is contrary to its public policy. Thus, the exception may only be triggered when the court determines that the enforcement of a specific authentic instrument would be manifestly contrary to its public policy. At the most basic level an enforceable authentic instrument records an obligation that is essentially contractual (whether unilateral or bilateral) therefore in this context the public policy exception relates to the enforcement of such a contractual obligation. Assuming enforceable contracts cannot be inherently contrary to public policy, how can the enforcement State differentiate between the public policy compliance of two authentic instruments that each require the debtor to pay €10,000 to the creditor if it is not able to note that the second contract arose from what it regards as an outrageously immoral or illegal contract? The public policy exception is provided to allow an enforcement court to refuse (exceptionally) the enforcement of an otherwise valid and qualifying authentic instrument. As the texts, logic and the acquis derived from Unibank each make plain, the ostensible validity requirement for a given authentic instrument to benefit from cross-border enforceability is a question independent of its consonance with a given enforcement State’s public policy; all that is therefore left to trigger the public policy exception is the content of the given authentic instrument judged from the point of view of the enforcement State. Accordingly, it is again suggested that if the prohibition on a révision au fond applies at all in the context of authentic instruments, it can only apply to forbid the enforcement court from trying to rework the substance of the authentic instrument during its otherwise legitimate and permitted consideration of such content for the purposes of potentially applying the authentic instrument public policy exception to refuse the exequatur (or appeal relating thereunto) to forbid the requested enforcement proceeding within its territory. Though references to the operation of the authentic instrument public policy exception in the reported case law are sparse, those comments that are reported seem to indicate that exequatur/enforcement courts are usually willing to refer to the content of the authentic instrument when considering a public policy issue in this context. It is suggested that this is the correct approach for the application of the public policy exception in the context of Brussels I family authentic instruments.

138 Kaye notes the point is accepted by continental literature but appears to find the prospect of so regarding content almost impossible to credit within the Brussels Convention, P Kaye, Civil Jurisdiction and Enforcement of Judgments 1st edn (Oxford, Professional Books Ltd, 1987) 1683.

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F.  Case Law on the Authentic Instrument Public Policy Exception The public policy exception has been mentioned in eight reported cases, from 1985 to 2016, often as an attempted defence, concerning authentic instrument enforcement in the context of the Brussels I family of instruments. It is unclear what the true numbers of such cases are and it must remain a matter of speculation why: a) there are no cases from Francophone EU Member States, and b) why there are no reported cases on this point prior to 1985.139 As yet there is no reported case in which the cross-border enforcement of an authentic instrument has been refused on grounds of public policy in a manner that has survived an appeal. In the cases now considered, the enforcement courts ultimately refused the debtor’s entreaties to apply the exception, commonly, during last-ditch attempts to delay or prevent immanent cross-border execution of an earlier obligation. It may be that such debtors and circumstances promote a certain judicial exasperation with the incompetent pleading of public policy (and everything else) in a futile attempt to delay and avoid execution.140 Such exasperation, if present, is unfortunate, not only because of the potential for an authentic instrument to conceal aspects of a transaction behind a cloak of respectability, but also because, as indicated below, it may discourage judicial awareness of the potential relevance of the European Convention of Human Rights in this context. In Guyot de Mishaegen and Another141 the authentic instrument was drawn-up in Belgium between a Belgian Bank and a married Belgian couple via the intervention of a bank employee who acted under a power of attorney granted to him by the debtors. When faced with enforcement in the Netherlands, Guyot appealed to argue that to grant enforcement there would be contrary to Netherlands public policy as he had no community of property with his wife and owned no immoveable property within the territorial jurisdiction of the Roermond court. In rejecting this weak argument142 the court clarified that the public policy exception was only available if a breach of public policy was apparent from the content of the authentic instrument; its examination of this content did not indicate any such public policy infringement. A similar outcome resulted in the far murkier case of CDE v Bertrand.143 Here the authentic instrument was French and concerned a French loan agreement

139 Concerning (a) it is suggested that non-judicial domestic enforcement procedures via the Huissier de Justice may be to blame; concerning (b) it seems likely, given the propensity of debtors to cite public policy on the off-chance of success, that defects in case reporting are the most likely reason. 140 The public policy exception for judgments is also often unsuccessfully advanced by debtors. 141 Guyot de Mishaegen and Another v Generale Bankmaatschappij N.V. (Case 615/1985) before the Arrondissementsrechtbank (District Court), Roermond 18 December 1986 [1990] ILPr 349. 142 eg an allegation that the bank employee had exceeded his authority such that the agreement was a nullity. 143 CDE v Bertrand Rechtbank Roermond (NL) 27.08.1992–920033 Unalex NL-24.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  163 between two French companies, CDE and Bertrand Eurohomes France (BEF) SARL,144 that Bertrand senior, his son and another (all three were company directors in the receiving BEF SARL) had personally guaranteed before a French notary. The guarantees fell due and CDE obtained a declaration of enforceability from the Netherlands court against Bertrand senior (a French national): he appealed arguing that the enforcement was contrary to public policy because it did not respect the domestic Dutch legal requirement that prior spousal consent to a personal guarantee was required if the guarantor was a married person at the time of the guarantee. Although Bertrand had stated in the documents concerning the setting up of the SARL that he was divorced, he had in fact married eight days later on 14 February 1991; the same day as the date on the authentic instrument guaranteeing the loan. Despite the best efforts of the lawyers for the creditor, who sought doggedly to resist Bertrand’s appeal as if it instead concerned the recognition and enforcement of a judgment, the court rejected Bertrand’s appeal. The court explicitly distinguished between the treatment of judgments and authentic instruments in the Brussels Convention and in the Jenard Report, rejected the notion that it could not examine the contents of an authentic instrument, explaining that this was required for the purposes of the operation of the authentic instruments public policy exception. The court also noted the significant point that the alleged infringement of public policy must relate to the enforcement of the authentic instrument in the enforcement State: it could not, in the course of the present enforcement procedures, relate to the validity of the guarantee contract at its point of formation within a French authentic instrument. Neither Guyot nor Bertrand actually disclose any viable public policy issues; the debtor’s challenges were not so much that Dutch public policy would be breached by the enforcement of either authentic instrument, but rather that such cross-border enforcement against the debtor was ‘unfair’ and therefore should not be allowed. A similar argument was advanced, without success, in a case heard in Spain by the Audiencia Provincial Palma de Mallorca concerning two notarial authentic instruments drawn-up in Germany that saw a Spanish married couple agree to personally guarantee the payment of loans, etc they received from a German bank to buy German properties.145 When the loans fell into default, the German bank decided to proceed against the married couple as guarantors in Spain where the couple were living in valuable Spanish properties. Despite a Pyric victory due to the German bank’s elementary blunder of claiming via Article 57 of the Brussels I Regulation for a matter subject to Article 50 of the Brussels Convention, the debtors were unsuccessful in resisting the bank’s crossborder claim: the suggestion that enforcement was contrary to Spanish public policy if the German bank proceeded against the guarantors and their immoveable property in Spain without first enforcing against the German property was



144 The

SARL was set up eight days before the authentic instrument was drawn-up. Provincial Palma de Mallorca (ES) 17.12.2007–174/2007 Unalex ES-292.

145 Audiencia

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rejected by the Spanish enforcement court and by the Spanish appeal court, the latter noting that the creditor’s right to bring both types of claim was explicit in the authentic instrument. The Swiss Bundesgericht recently rejected a similarly weak challenge to the cross-border enforcement of a German authentic instrument which saw the debtor argue, inter alia, that the enforcement of the German maintenance agreement contained in the disputed authentic instrument would be contrary to Swiss public policy because it did not comply with local Swiss requirements forbidding open-ended maintenance agreements and payment beyond the child’s age of majority and thus did not allow the calculation of the maximum sum the debtor would potentially have to pay.146 It is hardly surprising that a public policy claim based on the premise that legal practice is slightly different abroad did not succeed. A somewhat better-founded argument occurred in a case heard by the OLG Saarbrücken in 1998.147 Here a commercial creditor sought a declaration of enforceability in Germany of a French titre exécutoire issued by a French Huissier de Justice, after lengthy but inconclusive French procedures concerning dishonoured commercial cheques worth circa FF11,000. The Landgericht Saarbrücken rejected this application and applied the public policy exception on the basis that the enforcement would be contrary to German public policy as it believed that to grant enforcement would infringe Article 19(4) of the Grundgesetz (GG) by impermissibly restricting the debtor’s access to the courts given that there was no appeal or judicial review possibility against such a titre exécutoire issued by a ‘non-judge’. So far as is known, this is the only case in which the ‘European’ public policy exception has been applied by an enforcement court. The creditor appealed to the OLG Saarbrücken which, after a detailed examination of the events, found that the lower court had misunderstood the import of the Grundgesetz provision and that there was no breach of German public policy justifying the refusal: it therefore granted the declaration of enforceability. For the OLG, German public policy could not be engaged simply because a French titre exécutoire was not issued by a judge and its domestic enforcement did not allow of any judicial review. It found that the titre exécutoire was a French public document, issued by a French public official and that it qualified as an enforceable authentic instrument under European law.148 It confirmed that the Article 50 exception was intended to be applied exceptionally and noted that the debtor had been fully informed by the earlier French proceedings concerning the cheques and thereafter had been sufficiently – if not perfectly – informed by

146 Bundesgericht (CH) 21.09.2016–5A_935/2015 Unalex CH-603. 147 OLG Saarbrücken (DE) 06.07.1998–5 W 375/97 Unalex DE-240. 148 The court distinguished the titre exécutoire in this case from the request that a German court fix a bill of costs for French proceedings that had been determined by the OLG Koblenz 14 W 638/85 Unalex DE- 123 not to amount to a judgment or an authentic instrument enforceable under the Brussels Convention.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  165 the enforcement documents that he had received from the Huissier de Justice.149 Throughout its well-referenced decision the OLG distinguished between the parts of the Brussels Convention concerning judgments and the parts concerning authentic instruments; it noted certain German parallels to the circumstances in which an unpaid cheque could become an enforceable title and rejected the suggestion that the de facto connection of a foreign ‘law’ with domestic German enforcement possibilities via Article 50 of the Brussels Convention could amount to an infringement of German public policy. It avoided the alleged Article 19(4) GG infringement by observing that this provision was only triggered by acts of the German State that acted to restrict domestic judicial review possibilities: contrary to the view of the lower court, the OLG explained that this provision had no ­relevance on these facts.150 The highest civil court in Italy, the Corte di Cassazione, briefly considered the public policy exception in a case from 2008 which concerned a German authentic instrument drawn-up in 1998 between a German Bank and the Italian debtor to secure a loan.151 When the German bank sought to recover monies due from the debtor in Italy via Article 50 of the Brussels Convention the debtor appealed the declaration of enforceability; he raised various objections including improper Article 47 service of the enforcement documents, that the copy of the authentic instrument he originally received from the German notary was ‘missing’ its executory formula and a seemingly unsupported allegation that he had been mentally incapable at the time of drawing-up. The debtor argued that these factors prevented the continuation of the declaration of enforceability in Italy. The Corte di Cassazione disagreed and found: a) that the Article 47 service requirement applied only to judgments, not to authentic instruments152 that the debtor (or appointed representative) had had to be present to sign; and b) that the fact that the copy of the authentic instrument received by the debtor was not itself enforceable was common practice and not a relevant objection to enforcement. Concerning public policy, the court observed that it was the only means of attacking a declaration of enforceability (exequatur) in the enforcement State of an ostensibly valid foreign authentic instrument; it then clarified that the public policy exception had to connect with an injury that enforcement would inflict on Italian values. As the debtor’s admissible allegations all went to the issue of validity at the point of drafting and drawing-up the authentic instrument, they did not trigger the

149 The court noted a few defects in information but decided that on the facts they were insignificant. 150 An attempt to trigger Art 19(4) GG by invoking §328(4) ZPO (refusal of recognition because this is irreconcilable with material principles of German law/fundamental rights) was also rejected. 151 Corte di Cassazione (IT) 10.07.2008–19067 – Caniglia/Banca Sparkasse Essen Unalex IT-367. 152 This point on service is only even potentially relevant under Arts 47(1) of the Brussels Convention and the Lugano Convention of 1988. It is discussed in a general context as at 2004 by Layton and Mercer (n 11) at paras 28.013 and 29.013. Neither the Brussels I Regulation nor the Lugano Convention 2007 include this service requirement for authentic instruments in Art 54 or via the official Annexed form for authentic instruments.

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public policy exception in connection with enforcement in Italy. The public policy exception did not apply and enforcement was directed to proceed. A different view of the potential effect of mental illness/incapacity on the operation of the public policy exception in the cross-border enforcement of an authentic instrument was taken by the Swiss Obergericht in Zürich in the course of exequatur proceedings concerning an instrument drawn-up in Germany in 2011.153 The debtor argued that she had consented to the drawing-up of the authentic instrument and signed it while she was suffering from serious and welldocumented mental health issues, and that intolerable pressure to so consent had been applied to her by a rogue with whom she was amorously engaged. The Swiss court took the view that had these allegations been substantiated to its satisfaction, the enforcement would have been a clear and serious breach of Swiss public policy requiring the application of the Article 57 public policy exception from the Lugano Convention 2007. On the facts however, the court decided that the debtor’s very lurid allegations did not fit with her otherwise entirely rational action of insisting on a stay of execution being built into the authentic instrument and noted further that her allegations were unsubstantiated by other neutral parties who had observed or had been involved in the transaction. Leaving on one side the differences attributable to the nature of the unsubstantiated allegations in the Italian and the Swiss cases, disparities between Italian and Swiss approaches to public policy concerning the enforcement of an authentic instrument when mental illness/incapacity issues are raised are unsurprising. The nature and content of public policy will vary from one State to another. Public policy arguments concerning authentic instruments arose in Scotland in 2009 before the Outer House and the Inner House of the Court of Session. The Scottish debtor sought to use the public policy exception to resist a d ­ eclaration of enforceability concerning a mortgage obligation he had contracted (while previously living in Germany) with a German bank via an authentic instrument drawn-up in 1997.154 Before both courts the debtor sought to deploy Article 6(1) of the European Convention on Human Rights to justify the application of the public policy exception to prevent the continuation of the declaration of enforceability. The debtor argued that enforcement would contravene his Article 6(1) ECHR human rights because the creditor had delayed unduly in applying for the declaration of enforceability against him.155 The delay in question was circa seven years, during which time the bank had tried to enforce but repeatedly had made technical

153 Obergericht Zürich (CH) 23.12.2011 – RV110021-O Unalex CH-530. 154 Baden-Württembergische Bank AG – An order under Section 4 of the Civil Jurisdiction and Judgments Act 1982 for registration of an authentic instrument dated 26th August 1997 [2009] CSOH 19, noted by N Shiels in SLT 2009, 24, 147–48. 155 If made out, such a delay would be contrary to UK public policy by reason of the duty imposed by s 6 of the UK Human Rights Act 1998 to respect the ECHR.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  167 blunders.156 Lord Brailsford accepted the suggestion by the debtor’s counsel that the facts engaged Article 6(1) of ECHR. His Lordship then referred to the guidance offered by Lord Bingham in Dyer v Watson but concluded that the delay did not surmount even the first of the ‘steps’ indicated by Lord Bingham by raising a ‘real concern’157 of an infringement of a basic human right. Lord Brailsford’s reached his conclusion because: a) the obligation had been voluntarily contracted; b) the bank had acted consistently regarding the existence of the debt; and c) the mortgage had a 30-year prescription period under German law. When the debtor appealed to the Inner House of the Court of Session, he again tried to trigger the public policy exception but this time he was unrepresented by counsel and had to act as his own advocate. The debtor lost and enforcement was ordered. Concerning the debtor’s ECHR argument, the Inner House stated, ‘We are not persuaded that Article 6(1) of the European Convention on Human Rights is engaged by a delay by a creditor in applying for the registration of an instrument of debt’.158 Though this seems to be the correct result on these facts, the court then proceeded, seemingly unwittingly, to fall into a series of errors made years before by other courts that the European Court of Human Rights had already corrected concerning the application of Article 6(1) ECHR to enforcement proceedings159 and to authentic instruments.160 Had the debtor had the benefit of legal counsel it is probable that relevant case law concerning Article 6(1) would have been referred to the court. As this did not occur, the highest civil court in Scotland preceded to wrongly characterise the reasonable time guarantee in Article 6(1) as applicable only in the circumstance that civil rights or obligations were determined by, ‘a court or tribunal which is seised with a dispute’,161 and then, again wrongly, referred to the word ‘contestation’ in the French text of the ECHR to try to support the erroneous conclusion that they had unfortunately reached.162 The Inner House’s blanket rejection of the applicability of the Article 6(1) ECHR to delay in seeking a declaration of enforceability is incompatible with the binding jurisprudence of the European Court of Human Rights. In Estima Jorge v Portugal

156 The bank, despite having been provided with all relevant details by the debtor, mistook his identity, his place of residence and even the legal system in which enforcement should be commenced, see Lord Brailsford [2009] CSOH 19 at para 9. 157 Dyer v Watson [2002] SC (PC) 89 per Lord Bingham at para 52. 158 [2009] CSIH 47 para 6. 159 Hornsby v Greece [1997] 24 EHRR 250. The court dismissed the Greek State’s argument that Art 6(1) did not apply to significant delays in the enforcement of a judgment and only applied to the proceedings which had led to the judgment. 160 Estima Jorge v Portugal (16/1997/800/1003) ECHR Judgment of 21 April 1998 paras 36, 37 and 38, also summarised in [1998] HRCD Vol. IX 477. 161 [2009] CSIH 47 para 6. 162 The ECtHR advised against applying a technical meaning to ‘contestation’ in 1981: Le Compte, Van Leuven and De Meyere v Belgium judgment of 23 June 1981 Series A No.43 p.20 at §40. In Estima Jorge at para 37 the court restated, ‘Conformity with the spirit of the Convention requires that the word ‘contestation’ (dispute) should not be construed too technically and that it should be given a substantive rather than a formal meaning. Besides it has no counterpart in the English text of Article 6 §1’.

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(1998),163 the European Court of Human Rights repeated its earlier rejection of the confinement of Article 6(1) to ‘litigation proceedings’ derived from a narrow reading of ‘contestation’.164 This case concerned the domestic attempts of Estima Jorge, an authentic instrument creditor, to recover compensation from the Portuguese State for the 13 years it took for her to domestically enforce her authentic instrument against defaulting debtors as a consequence of errors and delays due to the Portuguese authorities and the entanglement of her claim with a State claim for unpaid taxes owed by the debtors: the ECtHR duly found a breach of Article 6(1) by Portugal and awarded the creditor compensation for the delays. It is regrettable that neither Hornsby v Greece nor Estima Jorge were cited to the Scottish courts, thereby preventing the error and allowing a fuller judicial exploration of the application of human rights to the different issue of the crossborder enforcement of an authentic instrument against a debtor. If the matter is considered with the benefit of these cases it seems that it must be accepted that, on the right facts, it is technically possible for Article 6(1) ECHR (or another human right) to be engaged in the context of the enforcement of an authentic instrument against the debtor.165 Though undue delay by the creditor of an authentic instrument is hardly suggested, without more, by a seven-year period of consistent, if maladroit, attempts to enforce against the debtor a claim with a 30-year prescription period; it is possible that on other facts a breach of a debtor’s human rights during enforcement could permit the application of the authentic instrument public policy exception.

i.  Hypothetical Cases Justifying the Application of the Public Policy Exception for Authentic Instruments As there appear to be no reported decisions where the enforcement State applied the authentic instrument public policy exception to prevent the exequatur (or its continuation) associated with cross-border enforcement this section on public policy will conclude by referring to hypothetical examples suggested by academics that might activate then justify the application of the public policy exception in this context. These instances are predicated on the texts of the Conventions and Regulations discussed in this chapter. Only objections going to the grant of exequatur or to its continuation can raise and trigger the public policy exception. Objections going solely to the circumstances of creation or registration in another

163 Estima Jorge v Portugal (16/1997/800/1003) ECHR Judgment of 21 April 1998 paras 36, 37 and 38, also summarised in [1998] HRCD Vol. IX 477. ‘The Court notes that the present case is distinguishable from the cases previously before it … since what was being enforced was not a judgment, but another form of authority to execute, namely a notarial deed providing security for a specific debt …’. 164 See paragraphs 29–38 of the Estima Jorge case (n 161). 165 Recital 38 of Regulation 1215/2012 is explicit in applying the EU’s Charter of Fundamental Rights and Art 47 of that Charter to its operation. Earlier Conventions and Regulations were somewhat less direct, eg Recital 25 of Regulation 44/2001.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  169 Member State are textually irrelevant to the public policy exception but may suffice to fatally undermine the requirement, confirmed in Unibank, of domestic enforceability in the Member State of origin. a.  Geimer’s Categories In a seminal article published in 1975 Professor Geimer considered, inter alia, how the public policy exception of the Brussels Convention might apply to incoming foreign notarial authentic instruments,166 suggesting that the public policy exception for authentic instruments could be examined via three broad categories of public policy challenge: first, injury to public policy caused by the bringing of the enforcement request itself; second, injury to national public policy arising from the particular legal relationship from which the enforcement request arises; third, injury to public policy due to conflicting expectations and requirements relating to authentication procedures. The third category is not discussed here as since the Unibank decision it has been irrelevant for intraEU authentic instruments.167 Though the discussion below refers to the first two of Geimer’s categories, building upon and extending the few early examples he offered, it should not be forgotten that the original categories are not found in the text of any of the Brussels or Lugano provisions and thus they may, depending on how the enforcement court characterises the infringement, overlap. Two further points must be emphasised: first, in the absence of prohibitions in the Convention and Regulation texts it is presumed that, for the purpose of considering the public policy exception, the enforcement court can and will entertain evidence adduced by the debtor and creditor; second, such evidence will have to be compelling in its communication of a serious breach of public policy threatened by the grant of exequatur (or its continuation) if the public policy exception is to be applied to halt local enforcement. As the cases considered above have indicated, vague allegations, even if superficially consistent with earlier evidence, will not suffice. b.  First Category: Public Policy is Infringed by Bringing the Enforcement Request In discussing his first category, Geimer noted that the most common cross-border enforcement claim via authentic instrument will be for liquidated sums of money that, according to the authentic instrument, the debtor has apparently consented

166 R Geimer, Vollstreckbare Urkunden ausländischer Notare DNotZ (1975) 461 at 477–78. These categories have thereafter been re-published, with minor amendments, in Geimer and Schütze 3rd edn (n 137) 839, paras 46–48, 839. 167 Even in 1975 Geimer was sceptical of his third category and reserved it for ‘text-book’ examples; Geimer (n 166) at 478 and Geimer and Schütze 3rd edn (n 137) at 840, para 49.

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to pay.168 As all Member States provide for the enforcement of such money debts, it seems reasonable to suppose that few such situations could allow the court to conclude that granting the exequatur necessary to allow the enforcement of the authentic instrument would breach the enforcement State’s public policy. An unlikely eventuality is not however necessarily an impossible one. Even the crossborder enforcement of such ‘simple’ liquid debts may raise serious public policy issues when travelling from the Member State of origin to the Member State of enforcement. A public policy infringement could be threatened if a lawful authentic instrument was drawn-up in a Member State of origin that imposed financial penalties upon a person if they did not perform if later, for wholly fortuitous reasons, it should be presented for cross-border enforcement in another Member State in which such a civil and commercial agreement and or the penalties are contrary to its public policy concerning matters of religion, good morals, equality or sexuality. For example, a loan made by a brothel owner to a prostitute who he lawfully employs in his registered German brothel might (theoretically) be incorporated within a German authentic instrument. If the debtor defaults on the loan and leaves Germany to return to a home located in another European Member State, the creditor could find that the enforcement of his authentic instrument in this other State, whether considered as the enforcement of a type of claim or as the enforcement of a particular claim, would trigger public policy objections in a State with a less liberal approach than Germany to prostitution and or loans associated with such activities.169 A subtler form of public policy violation associated with the bringing of the enforcement claim is here suggested as possible connected to exceptional cases in which the differential between the authentic instrument the parties drew-up in the Member State of origin and the enforcement procedures of the Member State of enforcement should be so gross as to violate the procedural rights of the debtor if the creditor is permitted to so enforce. This proposition is suggested only for the grossest forms of procedural differential in which allowing or continuing enforcement would violate the debtor’s rights. It is not enough that enforcement in a different legal system reveals differences in the respective procedural laws of each venue; such differences are inherent in the provisions of EU private international law that shift enforcement claims from the State of origin to the enforcement venue assuming a level of procedural equivalence between the legal systems that is sometimes lacking on the facts. The issue typically arises via an authentic instrument containing an arrangement that is comparatively harmless in the place where it is created, because it is understood and appropriately regulated there by domestic civil procedure, but will pose difficulties in an enforcement State possessed of

168 Geimer and Schütze 3rd edn (n 137) 839, para 46. 169 In the circumstance that the parties sought to engineer such an authentic instrument to evade the law the matter would fall under Geimer’s second category.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  171 civil procedure rules that are very differently orientated, eg to allow immediate enforcement of an authentic instrument without the possibility of any corrective intervention, should such a foreign authentic instrument be presented for enforcement in that venue. This difficulty arises accidentally but is nonetheless real; it leaves the authorities in the Member State enforcement venue with little choice other than to feign impotent indifference to the procedural oppression of the debtor via the EU private international law unless the matter arises in a context in which the issue of public policy can be addressed. Even if it does so arise, the use of the public policy exception to prevent an attempt to recover a sum of money (the repayment of which was freely promised but has not been performed) will often appear a disproportionate response to anyone ignorant of the nature of the systemically accidental – but nonetheless real – procedural oppression of the debtor consequent upon the creditor’s application for cross-border enforcement in that enforcement venue. It is suggested that one reason for the lack of reported cases is that the Convention or Regulation enforcement procedures offer one deemed to be a debtor under the non-contentious procedures of the Member State of origin no effective crossborder protection against ‘accidental’ procedural oppression in the Member State of enforcement. It is suggested that, because the public policy exception is rightly regarded as a ‘nuclear-option’ in the context of the enforcement of a judgment, it is likely to also be presumed (wrongly) to be of equally exceptional applicability in the enforcement venue when its authorities are confronted by what the creditor presents as a ‘straightforward’ debt claim for a liquid sum. The salient difference between the judgment and the authentic instrument in this context is that the former results from an ex post facto application of contentious procedure, while the latter usually results from an ex ante arrangement between private parties formalised by a notarial intervention permitted by and according to the non-contentious procedures of the Member State of origin. As much may occur between the drawing-up of an authentic instrument in one Member State and its eventual enforcement in another legal system, it is suggested that foreign authorities in receipt of such an application for cross-border enforcement should treat the public policy exception provided for authentic instruments as conceptually distinct from the exception provided for judgments and be willing to potentially apply it with greater liberality. To illustrate the difficulty lurking in the interference pattern of the different procedures, consider the potential cross-border enforcement implications of a German authentic instrument concerning a very common means of raising money for an owner of immoveable property in Germany, ie the creation of a ‘land charge’ (Grundschuld) to provide a form of security for loan contracts secured on the owner’s immoveable property. In simplified terms170 a Grundschuld is a security 170 This account of the Grundschuld is partial and elides various important details of German property law, enforcement law and Land Register law that are not presently germane. For more detail in English see L van Vliet, ‘The German Grundschuld’ (2012) 16(2) The Edinburgh Law Review 147–77.

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right ‘in rem’ over immoveable property that creates an abstract obligation to repay (usually with interest) and allows foreclosure against that property to the extent of the registered Grundschuld if either the Grundschuld or the separate in personam contractual loan arrangement it also secures are not properly performed by the debtor. The loan debtor must repay the loan (and the specified interest) to the loan creditor (or their assignee) who may but need not also hold the Grundschuld at the relevant point in time.171 The loan arrangements will be set out in an immediately enforceable notarial authentic instrument and in the Grundschuld itself, the latter is usually subsequently recorded in the land register. Though it may be that one who grants the Grundschuld will also be the debtor under the contemplated loan arrangements, this need not be the case. ‘A’ may consent to establish a Grundschuld for ‘B’ (or even allow ‘B’ to re-use an existing and previously re-paid Grundschuld which is dormant but still registered over their property) to allow ‘B’ to raise money from a third party (eg a bank or other lender) by offering it the security right represented by the Grundschuld/land charge on the land of ‘A’: if ‘B’ does not repay the loan capital and interest as set out in the enforceable notarial authentic instrument and Grundschuld establishing the loan arrangements, the third party lender can enforce the notarial authentic instrument against ‘B’ and also enforce the Grundschuld agreement against the property of ‘A’.172 Somewhat counterintuitively, the potential for the creditor to enforce the notarial authentic instrument associated with the Grundschuld (and indeed the Grundschuld itself) does not, in theory, require that there has actually been any payment by the creditor of the capital sum of the loan that they agreed to make to the debtor: the creditor (or their assignee) may, theoretically, rely on the fact that the enforceable notarial authentic instrument recording the loan arrangement required the debtor to consent to immediate enforcement.173 It is thus in one sense no argument against enforcement of the authentic instrument that the debt is not yet due for repayment and, in theory, it is also not relevant that an enforcement application could concern a principal sum that has never been paid to the debtor. To these possibilities it must also be added that there is a distinct probability that a debtor under an arrangement involving a Grundschuld and notarial authentic instrument will, once the different interest rates for the Grundschuld and for the loan are considered, have agreed in the authentic instrument to repay an amount

171 A Grundschuld §§ 1191–1198 BGB is not quite the same as a mortgage (Hypothek §§ 1113–1190 BGB) as though it concerns an in rem right over immoveable property the contractual loan agreement it secures can be transferred without any need to also transfer the in rem foreclosure rights to the new ‘creditor’ as in the case of a transfer of a mortgage. 172 A further problem that may face ‘A’ is that even if ‘B’ does repay the loan to the lender ‘B’ still holds the Grundschuld against the property of ‘A’ and may then seek to enforce this land charge security by foreclosing against the property of ‘A’ despite there never having been any intention that they should do so: see BGH Urt. v. 25.10.2013, Az. V ZR 147/12 for a case in which this issue arose. 173 Immediate enforcement is not characteristic of the German Hypothek or Grundschuld and hence it is much appreciated by creditors who wish for expedited enforcement options.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  173 significantly in excess of the sum which was and is actually agreed to be loaned and borrowed.174 The domestic problems which the interaction of the different obligations and liabilities associated with ‘nicht valutierte Notarurkunden’ and Grundschulden might be expected to cause in Germany were for many years prior to the 2008 global financial crash more theoretical than real; any such difficulties were mostly neutralised by good practice by German lenders, by extensive domestic practical protections offered to all parties (creditors and debtors) by the BGB, by the Land Registry, and by the German civil procedure rules concerning the domestic enforcement of Grundschulden and authentic instruments. What though would be understood or procedurally possible outside Germany if a different legal system should be confronted by an immediately enforceable German authentic instrument associated with a Grundschuld according to which sums of money and sums of interest were seemingly due from the debtor?175 It seems unlikely that non-German enforcement authorities and enforcement courts would necessarily understand that German legal peculiarities could mean that the creditor had not yet advanced the capital to the debtor from whom they now seek to ‘re-claim’ it, nor that the debtor has in fact paid a person that the German land register still records as the creditor but who has in fact assigned the benefit to another person who has not received the repayment and so is now claiming against the debtor’s foreign assets as this is the simplest way for them to receive the sums apparently due. It is also most unlikely that it would be grasped that either the rates of interest may be debatable or that an authentic instrument based on an entry in the Land Register records a genuine grant of security for a sum which was never intended to be repaid.176 If the authorities in the enforcement State could be persuaded of the oppressive reality of such situations for the debtor, it may be that this would justify the use of the public policy exception: how though is this to occur within the course

174 A land charge claim may face an interest rate of between 14–20 per cent in addition to the interest due on the loan itself; ‘despite part or full payment of the secured claim under the loan contract the land charge can be enforced for an amount which is even larger than the total amount that has ever been due under the loan contract, including interest. … at these interest rates it does not take much time for the amount of the land charge to double’. See van Vliet (n 170) citing G Brambring and H-U Jerschke (eds), Beck’sches Notar-Handbuch 5th edn (Munich, CH Beck, 2009) A VI Grundschulden Rn 3 (H Amann) p.541. This issue is also alluded to by P Schlosser, ‘The Abolition of Exequatur Proceedings – Including Public Policy Review?’ [2010] Praxis des Internationalen Verfahrensrechts (IPRax) 101, 104(d) and at fn 8 of the third National Questionnaire reproduced at 223 of the B Hess, T Pfeiffer and P Schlosser, The Brussels I Regulation 44/2001 Application and Enforcement in the EU (Munich, CH Beck, 2008). See also the discussion of valuation ‘discrepancies’, intentional and otherwise, which §767 ZPO can correct by R Hüßtege (n 70) at note 20a, 1025–26. 175 Ironically it was the conduct of mostly foreign parties who from 2007 bought up Grundschulden to enforce to the fullest extent possible that led to the Gesetz zur Begrenzung der mit Finanzinvestitionen verbundenen Risiken (Risikobegrenzungsgesetz) BGBl I, 1666, discussed by van Vliet (n 170) 166ff. This domestic provision essentially allows the debtor to continue to assert the legal protections they had against the original creditor despite subsequent assignment by the creditor. 176 See BGH Urt. v. 25.10.2013, Az. V ZR 147/12.

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of the cross-border enforcement of notarial authentic instruments concerning such civil and commercial obligations? It is suggested that if the authorities in the Member State of enforcement are not willing to consider the possibility of applying the public policy exception to foreign authentic instruments in a manner consonant with the characteristics of this legal institution there is a systemic danger not only that the creditor may by accident abusively and oppressively use the Brussels I or Lugano provisions to the manifest disadvantage of the debtor, but also that they may do this with intent to abuse the international process provided by the Regulation or Convention by seeking to exploit a procedural differential allow their authentic instrument to produce a far greater level of assumed executory force outside its State of origin than it could ever enjoy within it and by so doing violate the debtor’s procedural rights to due process and a fair trial/legal procedures. c.  First Category Cases may also Include Non-Liquidated Claims The authentic instrument provisions of the Brussels and Lugano Conventions and the Brussels I and Ia Regulations are not restricted to the sole enforcement of money claims.177 This was demonstrated in the early case of N.V. Sunclass Sonnevijver. The debtor (a Belgian land owner) was required by a Belgian court hearing an application under Article 50 of the Brussels Convention to execute leases over Belgian land in favour of the Dutch creditors because he had promised that he would do so in a Dutch authentic instrument drawn up and executed in the Netherlands before a Dutch notary.178 Though no rules of international jurisdiction or public policy could prevent this authentic instrument from being validly drawn-up in the Netherlands, any judicial order to compel the execution and registration of the contemplated leases could only (because the property was situated and registered in Belgium) be granted by the Belgian courts: it is suggested that as the relevant enforcement authority the Belgian court was at all times free to entertain any valid objection going to issues of public policy. Though in examples of direct enforcement such as Sunclass the primacy of the lex situs cannot be resisted and must be pursued in that location it may be that public policy issues could arise if the authentic instrument sought additionally to facilitate performance by incorporating indirect enforcement possibilities into the authentic instrument to put further pressure on the debtor to perform/convey the property. Thus, if the Dutch authentic instrument had made the debtor’s default on their primary obligation (ie to execute the leases by a certain date) a trigger for secondary money penalties due to the creditor, these secondary obligations would, assuming default by the debtor, be capable of enforcement against the 177 In this respect they differ from the European Enforcement Order which does have this restriction, see ch 5. 178 NV Sunclass Sonnevijver v BJ Westerveld (judgment of 26 September 1980) Rechtbank van Eerste Aanleg, Tongeren, Répertoire de jurisprudence de droit communautaire Digest I-50 – B1.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  175 debtor throughout the other EU and Lugano States. Depending on the circumstances (eg has the property been destroyed by fire preventing the grant of the leases, or have the Belgian courts forbidden the grant of the leases, etc) the use of such penalties and other indirect means could cause the public policy exception to become relevant within Belgium or in any other Member State in which the penalties should be claimed. d.  First Category Cases: Conclusion In default of concrete cases it remains unclear to what extent the first category public policy exception will be employed by the enforcement court to prevent or restrict an incoming authentic instrument from receiving an exequatur or continuing its enforcement in that venue because of a breach of first category public policy. Though it is not possible to point to a case that states that what has here been called the procedural differential between the Member States of origin and enforcement is a material or sufficient factor in concluding that the public policy exception is activated concerning the requested cross-border enforcement of the authentic instrument and may be applied to prevent the creditor from so proceeding against the debtor, it is suggested that such a possibility must exist within the EU’s private international law concerning civil and commercial authentic instruments. Some support for this proposition may arguably be drawn from a suggestion from Hess, discussing settlements under Article 58 of the Brussels I Regulation, who suggested that if intolerable pressure to settle should be applied by one party to the other (gross enough to amount to intimidation) this might trigger the Brussels I public policy exception associated with Article 58 Brussels I Regulation.179 It remains to be seen whether and how any aspect of this suggestion can be adapted to apply to the actions of an authentic instrument creditor in circumstances a­ rising after the instrument in question has been drawn-up. If the CJEU should ever receive a preliminary reference request relating to such matters it is unlikely that it would encourage the idea that the cross-border enforcement of an authentic instrument should be routinely subject to a positive judicial assessment of the creditor’s conduct, it is however also most unlikely that the CJEU would advise the enforcement venue to tolerate or permit outcomes grossly in breach of any party’s human rights under the EU’s Charter of Fundamental Rights. At present the use of the public policy exception for first category matters concerning the cross-border enforcement of civil and commercial authentic instruments, potentially including the refusal or suspension of exequatur due to gross procedural unfairness to the debtor arising from the application of the Brussels I or Lugano provisions, is merely offered as a possibility. It may be that this

179 Originally Art 51 of the Brussels Convention and Lugano Convention 1988, still Art 58 of Lugano Convention 2007 and now Art 59 of the Brussels Ia Regulation. B Hess, Europäisches Zivilprozessrecht 1st edn (Heidelberg, CF Müller Verlag, 2010) at 374, fn 1206 referring to OLG Koblenz, 5.4.2004 276.

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suggestion seeks to discern a potential for something related to either an abuse of process or an abuse of right to arise in relation to the operation of the public policy exception from the Brussels I or Lugano provisions concerning non-contentious authentic instruments. It is respectfully suggested that the rights of debtors in EU private international law, particularly those treated as debtors via non-contentious justice procedures, have long merited such consideration and explicit recognition in this context. e.  Second Category: Attempts to Use an Authentic Instrument to Evade a Law Professor Geimer’s second category concerns attempts by parties to an authentic instrument to evade the law of the enforcement venue by separating their agreement (drawn-up as an authentic instrument in the Member State of origin) from its enforcement in another Member State. Geimer argues that such attempted evasions engage and may then trigger the operation of the Brussels I public policy exception in the enforcement State. The first and the second categories may overlap, eg if the prostitution example discussed above under the first category should be varied to make the object of the use of the German authentic instrument an attempt by the parties to circumvent the objections to prostitution that would otherwise obstruct repayment of the loan from the ‘home’ State of the impecunious debtor. The second category reflects the fact that in one sense authentic instruments can be regarded as presenting the unscrupulous with an opportunity to try to evade legal prohibitions in the enforcement State. This evasion results from opting to have an authentic instrument drawn-up in a State where the matter is lawful but is then intended to be enforced in a State where the authentic instrument could not be drawn-up to include that agreement: such enforcement is intended to proceed on the basis of a partial extract of the ‘agreement’ in the form of an enforceable extract of the foreign authentic instrument that will only disclose innocuous aspects concerning the debtor’s liability to pay a liquidated sum. The full foreign authentic instrument will be retained by the notary located in the Member State of origin.180 Such attempted evasions of law are made more feasible given the lack of direct jurisdictional control concerning notarial activity, eg in the N.V. Sunclass Sonnevijver case noted above, there was no need for the notary in the Netherlands to have any ‘jurisdictional’ connection to the Belgian leases that were the reason for the authentic instrument and further by the operation of the authentic instrument eschewing any contentious legal action to confirm its executory effect. Of course, notaries are alive to these dangers and will not assist 180 See Leutner (n 40) 232. The diligence of the notary in the State of origin cannot necessarily avoid such an eventuality. Equally such authentic instruments and their material content will not be subject to public policy supervision in the State of origin if the proposed ‘evasion’ should, as is likely, be lawful there.

Brussels I Family Eligibility Criteria Required for an Authentic Instrument  177 in drawing-up of an authentic instrument expressed to be for the evasion of law: from the perspective of the would-be evaders however, this is merely another reason not to tell the notary of the true purpose of the agreement which they seek to cloak within the authentic instrument with which they plan to evade the law. Geimer offered two examples of such evasion: first, an authentic instrument allowing the parties to enforce a gambling debt which would otherwise be unenforceable in Germany; second, the use of an authentic instrument to circumvent national public policy provisions forbidding specific illegal contracts such as contracts in breach of competition law or currency laws.181 Though it must be doubted whether today any participant in a competition law infringement would wish to record anything at all on paper in this fashion, the possibility cannot be discounted that aspects of a venerable anti-competitive agreement might be included in an agreement drawn-up as an authentic instrument that apparently entitles the demand of sums of money as penalties from those within the cartel who do not obey the cartel agreement. The main difficulty with this suggestion is that it is difficult to believe that any notary today would be so unaware of competition laws as to not appreciate the likely import of that which he was asked to draw-up. A similar difficulty arises in the context of illicit currency transactions, it is not that illicit intentions in this matter are impossible but rather that the example is somewhat dated within an EU that has free movement of capital and also notaries very much alive to the potential legal and tax consequences of asset-shifting. Indeed, the free movement of capital has brought the problem of money-laundering to the fore; for some time, those engaged in such activities attempted to employ authentic instruments to launder money. Such authentic instruments were mostly drawn-up by notaries who were unwitting participants in these illicit activities: should such an example of a notarial authentic instrument be presented for enforcement under the Brussels I or Lugano provisions it would certainly justify the application of the public policy exception in and by the enforcement venue to prevent the grant of exequatur or its continuation. Towards the end of the 1990s, Leutner suggested another example of a category two public policy infringement that might arise not from the drawing-up of an otherwise valid authentic instrument but rather from its illicit assignment to another for a purpose that the enforcement State would regard as unethical or immoral.182 Assuming this purpose can be evidenced compellingly to the enforcement court, Leutner’s suggestion seems entirely plausible and highlights the potential relevance of the assignment of an authentic instrument to its public policy compliance when presented for cross-border enforcement. Other aspects of public policy-illegality for contracts/agreements contained in authentic instruments may similarly be relevant to the law of the enforcement



181 See 182 See

Geimer (n 166) at 478 where agreements in breach of currency controls are also mentioned. Leutner (n 40) 233.

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State when it is asked to enforce an authentic instrument. Issues of capacity may be relevant,183 as may attempts to enforce that which the enforcement State regards as a usurious demand for payment or excessive interest on such a sum.184 Though all such obligational matters would also potentially be subject to illegality in the Member State of origin, this is no reason for the enforcement State to forfend from applying the public policy exception to discontinue enforcement requests it finds to be egregious enough to violate its public policy standards. Similarly, it is contrary to the public policy of many States to allow civil compensation to exceed claimable losses to such an extent as to amount either to a material overcompensation or to represent a disguised public law penalty imposed in civil law proceedings. Irrespective of the type of legal relationship between debtor and creditor, the cross-border enforcement of an authentic instrument that requires sufficiently disproportionate payments by the debtor could potentially trigger the public policy exception in the court presented with a challenge to its cross-border enforcement. In closing this section and chapter it must be remembered that compelling evidence going to establish a serious infringement of public policy will always be required before the authorities in the enforcement State will be justified in applying the public policy exception to an authentic instrument. A further caveat is that though the Member State may determine its own public policy, the limits of this policy are notionally subject to the ‘supervisory’ role of the CJEU.

183 See for example the Swiss case Obergericht Zürich (CH) 23.12.2011 – RV110021-O (n 153) in which the court was apparently willing to refuse enforcement on the basis of public policy infringement if mental incapacity had been proven. 184 It may be that certain compounded interest rates are deemed so disproportionate to the original sum that they also offend public policy concerning usury.

5 European Enforcement Order Regulation I. Introduction This chapter considers the European Enforcement Order (EEO) Regulation1 as it relates to the cross-border enforcement of foreign authentic instruments drawnup or registered within the EU.2 This introduction sets out the Regulation’s tangled origins, explains why it is significant for notaries, then sketches certain general issues pertaining to enduring concerns that it unduly disadvantages debtors. Section II examines the provisions of the Regulation as they apply to authentic instruments certified in the Member State of origin and presented for enforcement in the Member State of enforcement, Section III considers the role of authorities and courts in the enforcement venue and Section IV examines issues related to the Regulation’s lack of public policy control. This is a necessarily long chapter for three

1 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims OJ L 143, 30.4.2004, p 15 as amended by Commission Regulation (EC) No 1869/2005 of 16 November 2005 replacing the Annexes to Regulation (EC) No 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims OJ L 300/6, 17.11.2005. The literature on the Regulation is vast, a small selection of the early journal articles includes: A Stadler, ‘Das Europäische Zivilprozessrecht – Wie viel Beschleunigung verträgt Europa? Kritisches zur Verordnung über den Europäischen Vollstreckungstitel und ihrer Grundidee’ (2004) IPRax 2; B Hess, ‘Europäischer Vollstreckungstitel und nationale Vollstreckungsgegenklage’ (2004) IPRax 493; R Wagner, ‘Die neue EG-Verordnung zum Europäischen Vollstreckungstitel’ (2005) IPRax 189; R Wagner, ‘Das Gesetz zur Durchführung der Verordnung (EG) Nr. 805/2004 zum Europ. Vollstreckungstitel’ (2005) IPRax 401; C Crifo, ‘First Steps Towards the Harmonisation of Civil Procedure: the Regulation creating a European Enforcement Order for Uncontested Claims’ (2005) 24 Civil Justice Quarterly 200; H Péroz, ‘Le Réglement 805/2004 du 21 avril 2004 portant création d’un titre exécutoire européen pour les créances incontestées’ (2005) Journal droit international (Clunet) 637; XE Kramer, ‘De Europese Executoriale Titel: een nieuw instrument ter verwezenlijking van het Europees procesterritoir’ (2005) 65 NTBR 375; M Zilinsky, ‘Abolishing Exequatur In The European Union: The European Enforcement Order’ (2006) Netherlands International Law Review 471; L d’Avout, ‘La Circulation automatique des titres exécutoires imposée par le réglement 805/2004 du 21 avril 2004’ (2006) 95 Revue Critique de Droit International Prive 1; J-F van Drooghenbroeck and S Brijs, ‘La pratique judiciaire au défi du titre exécutoire européen/The challenge of the European Enforcement Order for judicial practice’ (2007) 8 ERA Forum 49. 2 For reasons of space the use of the Regulation internally within one Member State is not addressed.

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reasons: 1) important aspects of the EEO Regulation do not feature in the leading UK texts on this subject;3 2) there has been at least one error-strewn English case involving the application of the Regulation to the cross-border enforcement of a notarial authentic instrument in which it seems that the court was unaware of important aspects of the operation of the Regulation;4 3) the probability is high that enforcement authorities in the UK will continue to receive applications to enforce EEO authentic instruments drawn-up pre-Brexit post-Brexit.

A. Origins The European Enforcement Order (EEO) for uncontested claims was the first of a crop of second generation private international law Regulations5 mooted in the mid-1990s but introduced in the 2000s ostensibly to simplify and speed-up existing cross-border enforcement procedures for judgment creditors while also furthering and deepening the political integration between the Member States by reforming the Brussels Convention methodology concerning cross-border exequatur procedures. The Regulations in this group all have the dubious distinction of having been conceptualised when all cross-border recognition and enforcement for civil and commercial claims was regulated by the procedures contained in the Brussels Convention of 1968 but having been drafted and implemented after the introduction of the reformed Brussels I Regulation in 2002. For the EEO Regulation the disjunction between its conception and its drafting has produced a curious artefact of European private international law that was designed to offer an alternative solution to a set of legal problems concerning cross-border exequatur procedures that the Brussels I Regulation had, in large part, addressed prior to its drafting and which the reforms of the Brussels Ia Regulation have since removed. The EEO Regulation however continues in operation due, seemingly, to the attraction of its cross-border methodologies for certain EU policy-makers. The negotiations leading to the drafting of the EEO Regulation began in earnest following the publication in April 2002 of a detailed Commission proposal for the creation of a Council Regulation creating a European enforcement order for

3 The coverage provided by, inter alios, Dicey Morris and Collins on the Conflict of Laws 15th edn with 5th supplement (London, Sweet and Maxwell, 2018) and Anton’s Private International Law 3rd edn (London, Sweet and Maxwell, 2012) is brief and each text omits any reference to Art 11 EEO. 4 Lothschutz v Vogel [2014] EWHC 473 (QB) discussed below. 5 The two other Regulations introduced after the 2004 EEO Regulation were: Regulation (EC) No 1896/2006 of the European Parliament and the Council of 12 December 2006 Creating a European Order for Payment Procedure; and, Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 Establishing a European Small Claims Procedure. Only the EEO Regulation addresses and empowers authentic instruments with cross-border possibilities. For an early overview of all the legislation in context see A Fiorini, ‘Facilitating Cross-Border Debt Recovery: the European Payment Order and Small Claims Regulations’ (2008) ICLQ 449. For later developments see the IC²BE project website at www.uantwerpen.be/en/projects/ic2be/.

Introduction  181 uncontested claims.6 As noted, despite the EEO Regulation’s publication in final form in April 2004, it originated from political concerns and legal developments in the European Community during the mid-1990s: at this time concerns had been developed that the exequatur requirements of the Brussels Convention were too slow, onerous and expensive for certain judgment creditors; eg one who had an uncontested civil and commercial debt that required cross-border enforcement across legal systems via the Brussels Convention.7 Following a 1994 report that the Commission had chosen to request from a large debt collection agency,8 it was suggested that the Brussels Convention procedures and provisions were themselves too capable of what some understood to be ‘obstructive’ procedural manipulation by ‘bad-debtors’ intent on frustrating the cross-border enforcement of even the ‘simplest’ judgments for ‘uncontested’ money sums. This anxiety was exacerbated by earlier accidental obstructive discontinuities between domestic civil procedure laws concerning cross-border debt recovery between Member State legal systems. As wholesale harmonisation of the domestic civil procedure laws concerning enforcement was (and remains) impractical, it was instead proposed that, as well as modernising the venerable Brussels Convention into what became Council Regulation EC Regulation 44/2001, there should be a European legislative intervention to improve the lot of the judgment creditor who possessed what the reformers conceptualised as an inherently unproblematic uncontested money judgment that had fallen due for payment. Such a judgment creditor was to be provided with an alternative and exequatur-free route to a cross-border enforcement option via a European Enforcement Order that would, by reason of its having been certified as ‘uncontested’ by the designated authority in the Member State of origin, dispense with a foreign exequatur stage and be (mostly) unopposable in the cross-border enforcement venue(s). Justifications for an EEO Regulation were thus based on deficiencies c­ oncerning judgment enforcement via the Brussels Convention and in Member State legal systems deemed to be too slow or otherwise incapable of preventing ‘abusive’ use by judgment debtors of legal procedures concerning the cross-border recognition and enforcement of a particular class of judgments. Leaving on one side the contestable accuracy and continued relevance of these specific concerns after the reform of the Brussels Convention into the Brussels I Regulation of 2001, it must be conceded that such concerns translated poorly into the very different context of the crossborder enforcement of authentic instruments. The enforcement procedures for 6 Proposal for a Council Regulation creating a European enforcement order for uncontested claims COM/2002/0159 final 18.04.2002. the subsequent legislative procedure is set out here: https://eur-lex. europa.eu/procedure/EN/2002_90. 7 See Commission Communication to the Council and the European Parliament: Towards Greater Efficiency in Obtaining and Enforcing Judgments in the European Union COM 97 609 (Final) para 6 of which outlines the ‘barrier’ represented by existing exequatur requirements and para 9 of which that dates the initial discussions for an EEO measure to 1995. 8 ibid, para 35 footnote 20 referring to the 1994 ‘European Late Payment Survey’ by a body called Intrum Justitia.

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authentic instruments, even in the Brussels Convention, have always been simpler and less onerous for creditors (and conversely less useful to the debtor who would seek to ‘abusively’ or otherwise resist cross-border enforcement). The only explicit basis to refuse the cross-border enforcement of a correctly drawn-up and presented authentic instrument according to the Brussels Convention, the Brussels I Regulation and the Brussels Ia Regulation basis is that to allow such enforcement would itself violate public policy in the enforcement venue; as the survey of authentic instruments in the previous chapter has demonstrated, this exception cannot be considered an unwarranted burden as it has rarely been considered, still less applied, by an exequatur court.9 With respect, there was no evidence to suggest that civil and commercial authentic instruments needed to be included in the EEO Regulation and thus one may question not only the fact of inclusion but also the method of inclusion without any Regulation public policy control or judicial oversight in the enforcement venue to discourage the illicit use of an enforcement title that no less an authority than Professor R Geimer (notary) had earlier indicated (in the context of the Brussels Convention) is capable of being employed by the unscrupulous to evade laws.10 Howsoever this may be, it was argued successfully, if illogically,11 by the Commission that a judgment creditor for a money sum deemed uncontested should not be required to follow the same cross-border recognition and enforcement procedures as the creditor of a judgment for a contested sum; instead they should be allowed to seek enforcement within other EU Member State legal systems via simpler and quicker provisions offering the debtor fewer opportunities to ‘delay’ and ‘obstruct’ the creditor’s freedom of action by raising what the Commission feared might be unmeritorious objections and appeals. Judgment creditors of uncontested claims for a fixed (or fixable) money sum were thus to be given a choice of two enforcement options:12 a ‘fast-track’ via the EEO Regulation,13 or the traditional option of proceeding via the new and improved Brussels I Regulation. To allow this option, the subject matter scope of the EEO Regulation was aligned with the civil and commercial claims that formed the subject matter scope of the Brussels Convention and its successors.14

9 For the Brussels I regime see ch 4. 10 See ch 4, s III.F.i.a for Geimer’s categories. 11 The illogicality arises because whether a judgment is contested or not, it is the judgment (or equivalent enforcement title) that is enforced and not the creditor’s description of the claim that led to it. 12 Recital 20 of the EEO Regulation. 13 Draft Art 30(2) of the Commission’s 2002 EEO proposal (discarded before the final text) meant that if the creditor elected for the EEO this would disapply Chapters III, IV, V, of the Brussels I Regulation (and the conventions and treaties listed in Art 69 of the Brussels I Regulation) for the duration of the EEO proceedings; see COM/2002/0159 final 18.04.2002. 14 See Art 2 EEO.

Introduction  183 Under the EEO the creditor of a qualifying title (ie a money claim that is ‘due’ and ‘uncontested’ according to the Regulation) is entitled to apply ex parte the debtor to the authority that issued the title in the Member State of origin for an EEO certificate to certify that their title qualifies for cross-border recognition and enforcement (or in the case of authentic instruments merely enforcement) via the EEO Regulation: in most cases the production of the judgment (or other EEO enforcement title) plus the certificate is a sufficient basis for the creditor to seek direct enforcement in the enforcement venue that is unopposable in terms of the EEO Regulation itself. If the creditor opts for the EEO route, they are thus spared the need to follow any Regulation exequatur procedure to introduce their enforceable title into the enforcement venue’s civil procedure law concerning actual enforcement. In the absence of any exequatur procedures in the EEO Regulation the authentic instrument debtor is also prevented from seeking to resist enforcement in the enforcement venue via the Regulation itself: the best they can achieve for an authentic instrument using the Regulation is to commence challenge procedures in the Member State of origin and then apply to stay enforcement in the enforcement venue for the duration of those challenge procedures via Article 23 EEO. Subject to any Article 23 measures, the debtor may resist actual enforcement in the enforcement venue to the extent permitted by its domestic procedures.15 It is worth briefly noting that the mischief the EEO Regulation was designed, and is able,16 to combat only arises if the cross-border enforcement requirements placed on the creditor of an uncontested money sum by the Brussels Ia Regulation are deemed to be unduly onerous (eg in terms of expense or time taken to operate these enforcement processes)17 or, alternatively, if the debtor who uses the available challenge provisions of the Brussels Ia Regulation is therefore deemed to act unreasonably by so doing. With respect, it is difficult to regard either possibility as compelling for judgments, settlements or authentic instruments since the Brussels I Regulation was ‘prospectively replaced’18 by the Brussels Ia Regulation. As the EEO Regulation does not offer a means of enforcing older ‘Brussels Convention’ authentic instruments otherwise unenforceable via the temporal or transitional provisions of the Brussels I Regulation, this also cannot be a reason for its existence. Articles 26 and 35 of the EEO Regulation operate to the effect that its 15 Art 20(1) EEO applies domestic law to the requested enforcement. 16 It being beyond the scope of a Regulation to ‘harmonise-away’ those delays that are peculiar to the operation of the Member State legal systems. 17 See W Kennett, Enforcement of Judgments in Europe 1st edn (Oxford, Oxford University Press, 2000) 22–23 noting the potentially cumbrous nature of the Brussels Convention exequatur provisions and the variability of the time taken to secure exequatur in the enforcement venue (UK less than a week but in other Member States several months). 18 According to Art 66(1) of the Brussels I Regulation the ‘replacement’ applied prospectively and according to the transitional and temporal provisions of the Brussels I Regulation: an authentic instrument drawn-up under the temporal application of the Brussels Convention would still be enforced via that Convention and not under the ‘new’ Brussels I Regulation. Thus, authentic instruments drawn-up prior to the 2002 operation of the new Brussels I Regulation would still fall under the 1968 Convention enforcement provisions.

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alternative enforcement option can only apply to authentic instruments drawn-up or registered after 21 October 2005 for the Member States then participating in the Regulation.19 More generally, it is difficult to regard the creation of a new EEO enforcement mechanism as a logical response to the presence of any alleged defects in what had by 2002 become the Brussels I Regulation: as a matter of logic, any post-completion ‘defects’ in the 2002 Regulation warranting legislative intervention should have led to the amendment of the Brussels I Regulation rather than the passage of a new EEO Regulation in 2004 with the recasting of the Brussels I Regulation left until 2012 and operative from 2015. Such attempts at logical analysis however ignore the ever-present political dimension of the EEO Regulation for a European Commission which regards EEO Regulation methodology as desirable because it reflects an institutional view of how EU Regulations should give effect to judgments, court approved settlements and authentic instruments across Member State borders.20 In simple terms some in the Commission prefer the circulation of enforceable titles to proceed without any foreign exequatur stage to minimise what they assume to be the unnecessary aspects of the role of the Member State of enforcement: for the EEO Regulation this was to be achieved by locating both the issuance of the EEO certificate and most subsequent dispute resolution in the Member State of origin.21 This Commission view of the role of the enforcement venue sometimes causes tension with the Member States who, except as far as the EEO Regulation and its related Regulations were concerned, have tended to prefer a more cautious and gradual variation of traditional approaches to these issues; the recurring disagreements between Commission and Member States concerning reforms to exequatur procedures from the Brussels Convention to the Brussels Ia Regulation arguably illustrate this tension. Initially, in the narrow context of uncontested money claims, the Council, the Member States and the European Commission had all seen the attractions of streamlining mere ‘technical procedures’ for a restricted class of judgment creditors possessing uncontested22 money claims against unmeritorious debtors: thus the

19 For later joining Member States their accession date determines the point at which an authentic instrument must be drawn-up to be sent abroad for enforcement in an existing Member State, eg after 1 January 2007 for Bulgaria and Romania, etc. Temporal application is also considered below in s II.A of this chapter. 20 See the Presidency Conclusions of the European Council from Tampere 1999 at point 34 available from www.europarl.europa.eu/summits/tam_en.htm. 21 See eg Proposal for a Regulation of the European Parliament and of the Council in jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast) COM (2010) 748 Final. 22 Although the uncontested status of an enforceable title is necessarily very relevant under Art 3 of the Regulation, in one sense this matter should have no bearing on the recognition or enforcement of the judgment (or settlement or authentic instrument). It is the enforcement title itself that is presented for enforcement in the Member State addressed; assuming no issues of preclusion or estoppel, the nature of the dispute that led to it is systemically irrelevant.

Introduction  185 Member States allowed the Commission its first opportunity to establish a civil and commercial private international law Regulation dispensing with the need for a foreign exequatur stage in the enforcement venue prior to actual enforcement.23 Such Member State generosity did not extend to the subsequent re-casting of the Brussels I Regulation: here the Member States did not accept the Commission’s view that the enforcement venue should not control the eligibility for recognition and enforcement of incoming judgments, etc. Though the Member States agreed to the abolition of exequatur in the Brussels Ia Regulation, they did so only in the sense that ‘automated Regulation enforcement’ joined the ‘automated Regulation recognition’ already occurring in the Member State addressed; this stopped short of the Commission’s recasting proposal that would have limited further the role of the Member State addressed concerning the ‘enforceability’ of incoming judgments, etc. Thus, despite its automation of recognition and enforcement, the Brussels Ia Regulation still allows the judgment debtor to oppose recognition or enforcement in the Member State addressed via Article 45(1)(a–e) and associated procedures and for authentic instrument and settlement debtors if enforcement would amount to a manifest violation of public policy in the enforcement venue. The EEO Regulation’s abolition of exequatur is thus different to the eventual automation of exequatur for the Brussels Ia Regulation. A significant consequence of the EEO Regulation’s methodology is that its abolition of exequatur designedly omits provisions allowing the court in the enforcement venue to do more than to refuse the enforcement of a conflicting judgment if the debtor applies via Article 21(1) and, exceptionally, to stay24 an enforcement at the debtor’s request until the end of a challenge proceeding in the Member State of origin:25 seemingly even if the EEO certificate is demonstrably ‘wrong’ or incomplete on material issues26 and, again, seemingly without regard to the public policy compliance of the requested enforcement of the enforcement title.27 During the negotiation of the EEO Regulation the extent and nature of the enforcement venue function was, because of its relationship to the issues ­concerning the defence rights of the debtor, a controversial matter; the Commission’s wish

23 See Recitals 2–4 of European Enforcement Order for uncontested claims (Regulation (EC) 805/2004 of the European Parliament and of the Council of 21 April 2004). 24 Usually the only ‘remedy’ in the enforcement venue is a Stay: stays are subject to Art 23 discussed below. Art 21(2) forbids any révision au fond concerning the material content of judgments, this is also discussed below in s III.A. 25 Though the enforcement court must refuse the recognition and/or enforcement of an incoming EEO certified judgment if it raises irreconcilability as per Art 21(1) EEO: this cannot apply to ­conflicting authentic instruments as Art 25(3) disapplies Art 21(1) EEO. 26 Art 11 EEO, discussed below, applies an important corrective to errors on the certificate that go to the nature of the enforcement title; if this is understood, it provides a means for the enforcement venue to resist these errors. 27 Though there is no public policy provision in the Regulation, it is argued below that certain human rights infringements would prevent the enforcement venue from permitting enforcement to proceed.

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to minimise enforcement venue function conflicted with the views of some who wished for a wider and more traditional role for the enforcement venue.28 The arguments advanced by the Commission and by some sympathetic Member States mostly prevailed:29 hence the correct venue in which the debtor should dispute issues of enforceability (and the EEO certificate itself) is the Member State of origin.30 This is based on the principle that it is more consonant with mutual trust for the Member State of origin to correct most admissible challenges via Article 10 EEO. The difficulties are: first, that the nature and likely speed of the EEO procedure is unlikely to afford much time for the debtor to exercise this opportunity without incurring considerable additional costs from needing to act in two venues; second, that such an approach conflicts with most domestic and EU approaches to the civil procedure concerning the receipt of foreign enforceable titles; and third, that the relationship of the Regulation to the domestic law of the enforcement venue necessarily abounds with ambiguities as the Regulation depends on the domestic law of the enforcement venue to achieve actual enforcement. The Commission’s technical success in reducing the role of the enforcement venue for the EEO Regulation has apparently not however led to high levels of take-up for the EEO mechanism among most lawyers across the EU. Equally, the Commission was unsuccessful in advancing its preferred enforcement methodology during the recasting of the Brussels I Regulation: its failure in this matter seemingly contributing to a decision to withdraw the expected opportunity for the Member States to recast the EEO Regulation to align it with Regulation 1215/2012 (Brussels Ia Regulation).31

B.  The Significance of the EEO Regulation for Notaries Though it appears that the EEO Regulation is less and less relevant for most lawyers, particularly since the abolition of intra-EU exequatur for civil and commercial 28 The difference of opinion between the Commission and certain Member States on the role of the enforcement venue prior to the negotiations – note from German, UK and Swedish delegations to the Committee on Civil Law Matters on the requirements to abolish exequatur for the European Enforcement Order of 12 January 2001 5259/01 JUSTCIV 5 passim and 7 – and thereafter during negotiations is clear from comments by the following Member States who all wished (albeit for varied reasons) for a wider role: Note from Austrian Delegation 26 February 2003 6817/03 JUSTCIV 26 at 3; Note from the French Delegation 7 March 2003 7045/03 JUSTCIV 45 at 2; Note from Luxembourg Delegation 3 October 2003 13216/03 JUSTCIV 169 at 1–2; Note from Polish Delegation 10 October 2003 13457/03 JUSTCIV 182 2. 29 Resolving this issue was one of five key areas noted by the Presidency in a note that also set out its proposed solutions. Note to Coreper/Council of 23 May 2003 9728/03 JUSTCIV 80 at 2 and 8–9 paras 37–40 setting out its reasons for the restricted approach it suggested and that was in fact finally ­incorporated, see Note to Coreper/Council of 18 Nov 2003 14746/03 JUSTCIV 243 at 27. 30 See Art 10 and Recital 18 and consider the provisions of the third chapter of the EEO Regulation (Arts 12– 19). 31 Another factor was probably the adverse comment in the RAND Europe report discussed below in s II.D.

Introduction  187 claims under the Brussels Ia Regulation, it has a particular significance for those notaries able to use it in connection with the authentic instruments they draw-up. The Regulation allows a Member State to decide and notify32 that it will allow its notaries to issue the EEO certificate for their own authentic instruments; this entitles the creditor to proceed to actual enforcement in any other EU Member State33 participating in the Regulation without any judicial oversight in the Member State of origin and, because the Regulation dispenses with a foreign exequatur procedure and omits any overt public policy control, may allow cross-border enforcement also without judicial oversight in the Member State of enforcement. If the Member States possessed of notaries capable of drawing-up authentic instruments also allow their notaries to issue the EEO certificate for those authentic instruments, this not only provides a new billable task for the instant notary but could be presented as a tacit equation in European Private International Law of such empowered notaries with the judges and courts who must otherwise issue the EEO certificates that permit cross-border enforcement for judgments, judicial settlements and (if notaries are not so empowered) authentic instruments.34 Such suggested equivalence has, in the related context of the Brussels I and Ia Regulation, been strongly resisted by the CJEU which has twice recently clarified the elementary point that a notary, when acting as a notary (eg when drawing up a notarial authentic instrument) is neither a judge nor a court and hence should not, when carrying out these notarial activities, be equated with either.35 Despite such clarifications, the EEO Regulation and its methodology arguably reflect a contestable, if rarely contested, assumption among EU law-makers that, compared to all the other legal professionals paid privately by their clients, notaries should have an enhanced role and further, that their notarial authentic instruments should be involved routinely in subsequent proposals for EU private international law that could involve cross-border enforceability. This chapter raises the contestability of this assumption as it relates to the EEO Regulation for two basic reasons: first, because no convincing need for the inclusion of authentic instruments in the EEO Regulation has ever been demonstrated; second, because the presently un-harmonised condition of domestic authentic instruments and the lottery of foreign enforcement procedures, each interact with the methodology of the Regulation (designed to advantage the creditor and to disadvantage the debtor)

32 Data available via https://e-justice.europa.eu/content_european_enforcement_order-376-en. do?clang=en. If the notary cannot issue the EEO certificate the court is the usual issuing body. 33 The Regulation does not include Denmark or non-EU States party to the Lugano Conventions. 34 In a position paper responding to the Commission’s 2002 proposal, the CNUE suggested ­numerous revisions to try to equate notarial actions leading to an authentic instrument with the issue of a court judgment; see www.notaries-of-europe.eu/index.php?pageID=5126. This paper does not appear to have had any impact on the negotiations, the definitions or the text of the final Regulation. 35 See C-484/15 Zulfikarpasic v Gajer EU:C:2017:199 and C-551/15 Pula Parking doo v Tederahn EU:C:2017:193. In C-300/14 Imtech Marine Belgium NV v Radio Hellenic SA ECLI:EU:C:2015:825 the CJEU concluded that Art 6 of the Regulation meant that certification of a judgment could only be by a judge.

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to obstruct further the often already notional judicial oversight of the creditor’s use of a seemingly enforceable notarial authentic instrument once it leaves the Member State of origin for presentation in the enforcement venue. If the notary issues the EEO certificate concerning his own authentic instrument, the possibility of judicial oversight in the Member State of origin must usually wait until the debtor commences a challenge in that place: such challenges remain possible but can scarcely be expected if the projected costs to the debtor of bringing proceedings in two Member States to: a) challenge the authentic instrument in the Member State of origin; and b) to halt enforcement in the enforcement venue, are projected to exceed the debt. If there is less judicial oversight of the operation of the Regulation by national courts this also affects the likelihood of references concerning such enforcement being made to the CJEU. Though in theory the EEO Regulation merely complements the Brussels I and Brussels Ia Regulations, offering an alternative cross-border enforcement route for ‘uncontested’ civil and commercial authentic instruments (and other enforcement titles), its material advantages for the creditor and for the notary mean that it is likely to be preferred by each as a route to cross-border authentic instrument enforcement: thus the EEO Regulation may also divert authentic instrument enforcement from the Brussels I and Ia Regulations. This possibility is borne out by comments from practitioners36 and from empirical research37 both suggesting that for judgments the EEO Regulation is little used. For notarial authentic instruments it appears to be used more widely with EEO certificates (often granted at the point of drawingup) often acting as a form of ‘guarantee’ that money seemingly due to the creditor can be recovered more swiftly from the debtor than via any other cross-border procedure.38 Whether the EEO certified notarial authentic instrument is used properly by authentic instrument creditors is however a different question, and one that 36 See J Forsaith, B Irving, E Nanopoulos, Evaluation of the European Enforcement Order Regulation (Prepared for the European Commission Directorate General for Justice) by RAND Europe 2012, in accordance with contract JUST/2009/JCIV/FW/0001/A4-30-CE-0381510/00-94, contract value €124,940 (hereafter RAND Report) 67. This report was kindly supplied to the author by the European Commission on the condition that it was emphasised that the Commission does not agree with its conclusions; Stürner in 2016 described the EEO Regulation’s relevance after 10 years in force as ‘marginal’, see his contribution in J Kindl, C Meller-Hannich, HJ Wolf (eds), Gesamtes Recht der Zwangsvollstreckung – Handkommentar 3rd edn (Baden-Baden, Nomos, 2016) under EuVTVO Art 2, rn 7, 2274. 37 The parts of the EU funded research project titled ‘Informed Choices in Cross Border Enforcement’ that considered the EEO Regulation up until 2019 have echoed the marginal relevance of this Regulation for the non-notarial legal practice examined by this project. For details of the project and access to a searchable database see www.uantwerpen.be/en/projects/ic2be/. 38 C Nourissat in 2018 in the summary presented by the Max Planck Institute at point 4 confirmed that still there has been a very low take-up of the EEO Regulation in French legal practice other than by notaries. www.mpi.lu/news-and-events/latest-news/detail/detail/report-workshop-cross-border-debtrecovery-in-the-eu-application-of-the-second-generation-regula/. The comments of Me Marc Cagniart (SCP de Braquilanges, Lambert, Cagniart et Marchay, Paris, notaire) at the same workshop (kindly supplied to the author by Prof Dr G Rühl) were consistent with the evaluation that the Regulation is particularly attractive to and used widely by (French) notaries.

Introduction  189 can hardly be answered in the absence of much reported litigation between such debtors and creditors. As will be seen, little regulatory oversight of the creditor’s subsequent use of the notarial authentic instrument for its cross-border enforcement can be expected from the notary who merely completed a certificate when the creditor requested this directly after the authentic instrument was drawn-up. The Regulation also provides no procedure or standing for the notary to correct any transcription errors.39 These observations are not intended to criticise the notary, but rather to highlight design failings of a Regulation with general effect that by seeking to procedurally advantage a very narrow class of judgment creditors against a narrow class of judgment debtors has unreasonably advantaged all creditors against all debtors. The founding assumptions of the EEO Regulation threaten to place the notary empowered to issue its certificates in a difficult position; Article 25(1) of the Regulation requires him to issue an EEO certificate concerning the enforceable authentic instrument he has drawn-up on the application of the creditor. There is no restriction in the Regulation on how many EEO certificates can be issued nor on when they are issued. The creditor with an immediately enforceable authentic instrument may thus also request a certificate immediately, potentially before a debtor who acts via another by reason of a power of attorney40 has seen the particulars of the final sealed instrument. In this circumstance the potential for immediate domestic enforcement is augmented with a potential for immediate enforcement in foreign venues that may be commenced as soon as the debtor, potentially via the intervention of a proxy, has contracted the assumed obligation apparently evidenced by the authentic instrument. Even if the notary does not issue such an immediate EEO certificate but is approached some time after the drawing-up by a creditor demanding an EEO certificate, this demand is also ex parte the debtor and, though the creditor, or more frequently the notary, may be required by an aspect of his domestic law to provide the notary with details of the outstanding debt and or payments from the debtor received to date, there is no technical need (according to the Regulation) for the creditor to do more than to allege the existence of the original debt he would claim (to allow a notary to fill in the numbers on the relevant Annex III standard form). In other words, the Regulation does not require or empower the notary in the Member State of origin to demand information from the creditor (nor to contact the debtor) to somehow ‘police’ the authentic instrument related cross-border claim – which of course lacks the qualities and finality of a judgment – that will 39 The Regulation anticipates that such correction should proceed via Art 10 in a court procedure in the Member State of origin: for a case where the notary discovered then acted independently to correct an error in the transcription of the authentic instrument, see Lothschutz v Vogel [2014] EWHC 473 (QB) discussed below. 40 Many authentic instruments are drawn-up via such representatives or proxies appointed by a form of power of attorney and potentially otherwise employed within the Chambers of the executing Notary, see ch 2 above.

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be certified via the EEO certificate and sent abroad without further Regulation control via exequatur or public policy procedures. This EU procedure is so creditor-friendly that but for the possibility of countervailing domestic requirements in the Member State of origin and the high professional standards of the authoring notary41 it could strain the professional neutrality the notary is required to maintain by turning him into a mere facilitator of the creditor’s cross-border debt claims.

C.  General Issues Concerning the Judgment Debtor’s Rights of Defence and ‘Minimum Standards’ in the Member State of Origin in the EEO Regulation During the drafting negotiations many complex issues arose for discussion and compromise.42 The most generally difficult task was however to persuade the Member States, and to a lesser extent the European Parliament,43 of the adequacy of the draft Regulation’s initial protection of a judgment debtor’s rights of defence should they be ‘legitimately ignorant’44 of the creditor’s proceedings concerning the debt. A more general issue concerning the protection of minimum procedural standards prior to (and following) the issue of the EEO Certificate also arose. This mattered because the certification procedures were to be carried out in the Member State of origin at the creditor’s request, probably ex parte the debtor, and would then, via the Regulation, allow that creditor a virtually unopposable enforcement title effective without any familiar form of exequatur-based judicial supervision in the other participating EU Member States. Though it may always be expected that the first legislative provision to offer an exequatur-free means of cross-border enforcement will raise concerns for the Member States who must enforce, but can no longer supervise, incoming enforcement titles, it was more than novelty that complicated the negotiation process concerning certain judgment debtor’s defence rights and associated

41 See comments by Me Marc Cagniart (n 38) (fn 7) noting the practical difficulties for a notary in filling in an EEO certificate when the amount to be claimed is complicated by repayments or, in the context of factoring contracts, by variations between the debt notionally due and the amount that could in fact be recovered. 42 Additional to the issues concerning authentic instruments discussed below, issues concerning the nature of an uncontested claim, the nature of enforcement titles that could be certified, and issues concerning the role of the enforcement venue were raised. 43 See Report on the proposal for a European Parliament and Council regulation creating a European enforcement order for uncontested claims (COM(2002) 159 – C5-0211/02–2002/0090(COD)) 08.04.2003 (Rapporteur: Joachim Wuermeling) 6 amendment 3 (rejected); 9 amendment 10 (partially effective); 11–12 amendment 15 (partially effective). PE 327.250/fin available from www.europarl. europa.eu/omk/sipade2?PUBREF=-//EP//TEXT+REPORT+A5-2003-0108+0+NOT+XML+V0//en. 44 This phrase is used as a shorthand to refer to the circumstances in which a judgment debtor may be protected by Chapter III of the Regulation, it is not found in the legislation.

Introduction  191 minimum standards in the Member State of origin. There were numerous practical difficulties, eg the need, in the context of judgment enforcement, to show service of documents notifying the judgment debtor of the impending initial proceedings and providing information; the associated need to accommodate appeal possibilities; and the surprising potential for the EEO Regulation to allow the ‘cure’ of earlier issues that would otherwise have been fatal to the initial issuance of an EEO judgment certificate because of non-compliance with the minimum standards of protection for certain judgment debtors in the Member State of origin.45 The Member States required considerable reassurance that the Commission’s proposed text would not impermissibly advantage judgment creditors by sacrificing their defence rights if they were ‘legitimately ignorant’ of the creditor’s proceedings.46 This reassurance ultimately took the form of a light modification of part of the Commission proposal into what is now Chapter III of the EEO Regulation. It is however important to note that the Chapter III protection is only provided for certain judgment debtors, those who are ‘legitimately ignorant’ of the creditor’s proceedings in the Member State of origin, and only applies while that ignorance is deemed to be legitimate: it does not provide a general or an enduring level of protection for all judgment debtors.47 Chapter III does not apply at all to authentic instrument debtors (or court settlement debtors). The prospect of the debtor facing virtually unopposable enforcement proceedings brought outside the Member State of origin anywhere else in the participating EU by a creditor possessed of an ex parte EEO certificate issued in the Member State of origin does not appear, from the available documentation, to have troubled the Member States at all. Indeed, even the Commission’s suggestion that an authentic instrument debtor should be explicitly warned of the potential for such cross-border enforcement was deleted from the text at the request of France and other Member States. Though the existence of the EEO Regulation indicates that the Member States were reassured sufficiently during the negotiations, the subsequent operation of the EEO Regulation has raised a recurring concern that it tends to unduly advantage the creditor at the expense of the debtor. In 2012 such concerns were supported by a Commission funded research project undertaken by RAND Europe that ­evaluated the operation of the EEO Regulation across the Member States after some six years of notional operation.48

45 Via Arts 18 and 19 EEO. 46 See Note from German, United Kingdom and Swedish delegations to the Committee on civil Law Matters of 12 January 2001 5259/01 JUSTCIV 5. Also consider draft Art 30 (2) in the 2002 Commission Proposal COM (2002)159 final; this provided that an application by the creditor under the EEO Regulation would mean that its provisions would supersede Chapters III, IV and V of the Brussels I Regulation: this provision was dropped from the final EEO text. 47 Recital 12 makes plain that the minimum standards relate to informing the putative judgment debtor in sufficient time and in such a way as to allow him to organise a defence of the facts that: a) he faces court action; b) that he must act positively to contest it; and, c) the consequences of not so acting. 48 See RAND Report (n 36).

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D.  The RAND Report 2012 The RAND report which, so far as this author is aware, is the only attempt to date at a comprehensive evaluation of the operation of the EEO Regulation across the whole EU,49 attempted to examine its ‘uptake’,50 ‘efficiency’51 and ‘effectiveness’52 in the EU Member States then able to export an enforceable EEO certificate and also to assess its cross-border enforcement in the 26 EU Member States then subject to the Regulation.53 Though the findings in the RAND report often require qualification because of imperfect data availability, or because of conflicting views expressed by the available interviewees, the evidence it accumulated does lend support to the view that the operation of the Regulation disadvantages the debtor’s fundamental rights if compared with debtor protection offered by the Brussels I Regulation.54 As the RAND Report indicated when referring to such a comparison, Opinions generally favoured the EEO procedure for all criteria except ‘protecting fundamental rights of the debtor’. The first aspect of this is unsurprising as the very purpose of the EEO procedure is to make debt recovery quicker and easier for creditors, albeit without compromising fundamental rights. The widespread perception that the EEO procedure affords less protection for the debtor’s fundamental rights is therefore a matter of concern. It does, however, accord with some of our more detailed findings. In particular, we confirmed concerns that, by transferring checks from the Member State of enforcement (ie exequatur) to the Member State of origin (ie determining applications for an EEO certificate and applications for the withdrawal of an EEO certificate), the EEO procedure risks replacing the review function of a foreign court with a mere rubberstamping exercise in which the very same judge can potentially determine first the creditor’s claim, then the creditor’s application to grant an EEO certificate on the claim, then even the creditor’s application to have the EEO certificate withdrawn on the basis that it was wrongly granted. This possibility is left open to Member States and

49 The 2008 Comparative Study on Authentic Instruments by the CNUE for the European Parliament touches on the EEO Regulation but does not explore it in detail (or accurately) in the six Member States (UK, France, Germany, Poland, Romania and Sweden) considered by this Study; see www.europarl. europa.eu/RegData/etudes/STUD/2008/408329/IPOL-JURI_ET(2008)408329_EN.pdf. More recently, the abovementioned IC²BE Project has studied the EEO Regulation in Belgium, France, Luxembourg, Spain, Italy and Germany see www.uantwerpen.be/en/projects/ic2be/. 50 RAND Report (n 36) referring to its relative frequency of use. 51 ibid, referring to the time and expense of using the EEO and to its simplicity and coherence for creditors, debtors and their legal advisors. 52 ibid, referring to its ability to deliver justice between creditors and debtors. 53 The Commission guided fieldwork involved, when possible, questioning a range of parties potentially including: ‘Ministry of Justice officials, court officials, judges, public notaries (or equivalents), debt-recovery lawyers, enforcement officers, debt collectors and academics’, see RAND Report at x but note the strong qualifications offered in the Conclusion at 83–84 lamenting lacking or insufficient statistical data and other methodological challenges. 54 See RAND Report (n 36) Table 4.1 at 73 which notes similarly adverse estimations of the EEO Regulation’s protection of the rights of the debtor (in relation to the ‘equivalent’ provisions of the Brussels I Regulation) for judgments and for authentic instruments across the testimony of 45 ­interviewees from 18 different Member States.

Introduction  193 even encouraged in so far as the EEO Regulation entrusts these functions to the court of origin, including by abolishing traditional appeals which would at least see the debtor’s challenge determined by a superior court experienced in exercising some review function (and, by definition, not by the judge whose decision is subject to challenge).55

The RAND report also noted that interviewees from five countries estimated the potential for a EEO certificate to be wrongly granted as at worryingly high levels ranging between 5–10 per cent of total certifications.56 The Report also records the somewhat ironic potential for the EEO procedure to be misused by unscrupulous judgment creditors.57 Possibly most damningly, the Report also confirmed the persistent anecdotal suggestion of a low take-up rate for the Regulation, as a means of enforcing judgments, and an associated tendency for judgment creditors and their legal advisors to each prefer to litigate either across borders via the more familiar Brussels I Regulation or to cut-out the cross-border issues entirely by litigating the debt directly in the venue where the debtor (or their target assets) were located.58 The Report also assessed the EEO Regulation as typically having a rather low level of detectable utilisation in terms of the number of EEO certificates issued across the EU Member States (though results for Hungary, Germany and Romania were much higher) during the period of the study.59 As far as incoming EEO certificates were concerned, the limited data suggested a wide range of results that in 2010 varied from a somewhat dubious statistic of 2,547 applications to enforce EEOs in the UK, to 307 in Poland, circa 75 in Portugal,60 83 in Ireland, 42 in Spain and 30 in Sweden.61 Despite its less than comprehensive and often imperfect data, the RAND Report represents a serious investigation undertaken with methodological rigour with the assistance of an expert in the EU Private International Law in question,62 and with project guidance from the European Commission. The conclusions of the RAND Report are devalued by the gaps in the data it could collect: eg though notaries were among the classes of legal professionals with whom the investigators

55 See RAND Report (n 36) Conclusion, 84 (my italics). 56 ‘According to the estimates of interviewees in five countries, EEOs are clearly wrongly granted in 5–10% of cases.’ RAND Report (n 36) 61. 57 ‘Fraud by unscrupulous creditors is cited as a common reason, but many interviewees opined that errors could have been detected if courts had conducted proper checks’, RAND Report (n 36) 61. 58 See C Nourissat, 4, www.mpi.lu/news-and-events/latest-news/detail/detail/report-workshop-crossborder-debt-recovery-in-the-eu-application-of-the-second-generation-regula/. 59 RAND Report (n 36) 64–66 with further discussion at 67–68 suggesting that clients and practitioners may either be ignorant of the EEO Regulation or may prefer other options than attempting to recover debts across borders. 60 The actual figure collated over two years was 140 – the estimate is the author’s division by two. 61 RAND Report (n 36) 76. concerning which it was concluded, ‘Estimates given by interviewees also permit additional trends to be identified. It appears that the majority of incoming claims under either the EEO or the Brussels I procedure are judgments (see Czech Republic, Estonia, Greece, Spain, France, Lithuania, Luxembourg, Netherlands, Romania). It also appears that most Member States (but not Lithuania) receive more Brussels I applications than EEO applications. These confirm the trends identified already with reference to Member States of origin.’, 77. 62 Professor Carla Crifo of Leicester University.

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attempted to engage, the data collected concerning authentic instruments certified as EEOs was minimal. Consequentially, the Report only deals with authentic instrument enforcement in what for the purposes of this book are abstract terms. Though it may be speculated that the clash between the imperfect findings, the debtor related concerns, and that which the Commission expected and wished to be revealed was a contributing factor to the Commission withdrawing the opportunity to recast the Regulation after 2012, the most important finding by the Report was simply the difficulty of extracting any data concerning actual usage of the EEO Regulation in practice. As well as the RAND Report there are other objective indicators of concern with the operation of the EEO Regulation. One such is the number of preliminary references to the CJEU provoked by the operation of the Regulation. If the EEO Regulation is appropriately drafted and operates to balance the rights of creditors and debtors in a proper manner, one may wonder why it continues to be involved in so many preliminary references concerning cross-border judgments given that it was designed for judgments and provides them with the additional benefit of the protection of minimum standards via Chapter III.63 Because the EEO Regulation only deals indirectly with potentially contentious issues of jurisdiction, follows the familiar subject matter scope of the Brussels I Regulation, concerns a narrow type of uncontested monetary claim, and reduces significantly the procedures involved in cross-border recognition and enforcement, it might be expected that the potential for uncertainty, and the need for preliminary references, would be minimal. The referrals however, mostly concerning judgments, continue to be lodged. Whatever view is taken of the absolute value of the conclusions of the RAND Report, they raise grounds for concern relating to the operation of the Regulation (for debtors) that are at least as valid as the earlier concerns over the operation of the Brussels Convention (for creditors) that led to the proposal for the EEO

63 According to EURLex, as of 11 October 2018 there have been 36 requests by national courts (some of which were then consolidated) for preliminary rulings from the CJEU that involved the EEO Regulation and judgments: EURLex and Westlaw both indicate nine final CJEU decisions (some of which concern more than one party). interpreting aspects of the EEO Regulation in the same time period: Case C-292/10 G v de Visser European Court of Justice (First Chamber), 15 March 2012 EU:C:2012:142; Case C-508/12 Vapenik v Thurner European Court of Justice (Ninth Chamber), 05 December 2013 EU:C:2013:790; Case C-300/14 Imtech Marine Belgium NV v Radio Hellenic SA European Court of Justice (Fourth Chamber), Case C-94/14 17 December 2015 EU:C:2015:825; Flight Refund Ltd v Deutsche Lufthansa AG European Court of Justice (Second Chamber), 10 March 2016 EU:C:2016:148; Case C-511/14 Pebros Servizi Srl v Aston Martin Lagonda Ltd European Court of Justice (Third Chamber), 16 June 2016 EU:C:2016:448; Case C-484/15 Zulfikarpasic v Gajer European Court of Justice (Second Chamber), 09 March 2017 EU:C:2017:199; Case C-551/15 Pula Parking doo v Tederahn European Court of Justice (Second Chamber), 09 March 2017 EU:C:2017:193; Case C- 66/17 Chudas v DA Deutsche Allgemeine Versicherung Aktiengesellschaft European Court of Justice (Seventh Chamber), 14 December 2017 EU:C:2017:972; Case C-289/17 Collect Inkasso OU v Aint European Court of Justice (Seventh Chamber), 28 February 2018 EU:C:2018:133; Request for a preliminary ruling from the Okresní soud v Českých Budějovicích (Czech Republic) lodged on 7 August 2018 – RD v SC (Case C-518/18) OJ C392/8.

The Legal Requirements for the Circulation of an Authentic Instrument  195 Regulation. The potential for equivalent concerns in the context of the cross-border enforcement of notarial authentic instruments cannot therefore be dismissed.

II.  The Legal Requirements for the Circulation of an Authentic Instrument via the EEO Regulation A. Introduction The EEO Regulation is differently organised than the Brussels Ia Regulation and its forebears. It does not provide any direct or indirect jurisdictional bases. This is not however the only difference; for those familiar with the more classically drafted and organised Conventions and Regulations that usually establish EU private international law, the organisation and nature of the provisions in the EEO Regulation are often disconcerting. Crifo noted with perspicacity that the EEO Regulation, does not set out positive obligations or mandatory rules of allocation; it is for the most part composed of a list of conditions, to be ascertained ex post, providing that a specific advantage can be claimed when a particular behaviour has been held.64

As will be seen, this facilitative approach to drafting sometimes eschews what might be thought the essential definition of concepts involved in the application of the Regulation and can cause difficult legal questions to arise if the Regulation is applied in situations that differ from the assumptions of its drafters, which, given that it was drafted predominantly to accommodate judgments, can occur quite often in the context of authentic instruments. The Regulation declares that each of its enforcement titles65 shall, if appropriately certified, be enforced in other Member States without any need for a traditional exequatur stage. This approach to cross-border enforcement mostly excludes the need to include within the Regulation66 the ‘usual’ enforcement exceptions and challenge procedures available to the parties in the enforcement venue. Instead the Regulation mostly requires EEO certificate supervision by the Member State of origin and provides a range of different standard forms that allow the authorities within that Member State to react to applications in that Member State or certain events in the enforcement venue which affect the certification or enforcement of the claim prior to its actual enforcement: there is thus, according to the logic of the Regulation, no need to require routine supervision of the EEO certificate by the enforcement venue. The role of the enforcement venue as s­ pecified by the Regulation is three-fold. First, to prevent an incoming EEO judgment title from conflicting with an earlier judgment if the debtor so applies. Second, to facilitate

64 Crifo

(n 1) 65. 5 judgments, Art 24(2) settlements and Art 25(2) authentic instruments. 66 These challenges, if present, are thus via the domestic civil procedure of the enforcement venue. 65 Art

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actual enforcement of the presented enforcement title according to its own civil procedure rules unless the Regulation says otherwise.67 Third, via Article 23 to restrict or limit enforcement to protective measures or, under exceptional circumstances, to stay it if the debtor has already commenced a permitted ­challenge in the Member State of origin. The coverage that follows sets out the provisions of the EEO Regulation ­relevant to authentic instruments to indicate the legal requirements for the Regulation to allow what it will regard as an authentic instrument to be certified as such to ­thereafter be enforced. The main provision of the EEO Regulation concerning authentic instruments is found in Chapter V as Article 25. Article 25 EEO 1.

2.

3.

An authentic instrument concerning a claim within the meaning of Article 4(2) which is enforceable in one Member State shall, upon application to the authority designated by the Member State of origin, be certified as a European Enforcement Order, using the standard form in Annex III. An authentic instrument which has been certified as a European Enforcement Order in the Member State of origin shall be enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its enforceability. The provisions of Chapter II, with the exception of Articles 5, 6(1) and 9(1), and of Chapter IV, with the exception of Articles 21(1) and 22, shall apply as appropriate.

As with the Brussels I family of Conventions and Regulations, the EEO Regulation places the cross-border enforcement possibility for an authentic instrument (or a settlement) in a separate chapter after the Chapter II and III provisions which concern the cross-border recognition and enforcement possibilities for j­ udgments. An authentic instrument that satisfies the Chapter I requirements (Article 1 subject matter scope; Article 2 material scope; Article 3 uncontested nature; Article 4 ­definitions) and falls within the temporal provisions set by Articles 26 and 35 may be certified as an EEO by the appropriate authority nominated by its Member State of origin. According to Article 25(1), if the creditor of a Chapter V authentic i­ nstrument makes a competent application to the relevant ‘authority designated by the Member State of origin’ this shall be certified by that authority on the Annex III standard form; it will thereafter be enforceable in accordance with those parts of Chapter IV EEO that apply ‘as appropriate’ to authentic instruments. The question of who should issue the EEO certificate for an authentic instrument was debated during the drafting process. The candidates were: a) the notary or other authority who had drafted the authentic instrument; or b) a domestic court. The Commission’s 2002 proposal had in draft Article 26(1) reserved certification rights to the ‘authority which has given authenticity to the document’. For a notarial 67 The EU’s available legal competencies obstruct the wholesale re-regulation of legal procedures in the legal systems of the Member States.

The Legal Requirements for the Circulation of an Authentic Instrument  197 authentic instrument, the relevant authority who so conferred authenticity would therefore be the same notary who had drawn-up the authentic instrument. In one sense this arrangement, that the ‘author’ of that which will be certified shall also be tasked with its certification, is consistent with the earlier provisions for the certification of judgments and settlements. What troubled certain Member States was the potential for the certifying notary to create what in the enforcement venue would be a virtually unopposable enforcement title without any judicial oversight. Though a notary exercises public functions in the drawingup of authentic instruments and by certifying them, he also charges then retains a fee for his professional services and cannot in relation to such certifications be wholly equated with a civil servant such as a judge, or other court official, who has no private benefit from issuing an EEO certificate. This is not to suggest that notaries are untrustworthy because they charge and retain permitted professional fees, but a difference between the entitlements of a notary compared to a civil servant such as a judge does exist; the certification point was debated in February and October 2003. The Finnish delegation, who at that point had a legal system that could only receive authentic instruments, took the view that mutual confidence concerning documents coming from the Member State of origin required that they should all only be issued by courts.68 The Polish delegation belatedly agreed with the Finns, citing the systemic familiarity and legal certainty associated with court orders.69 The Netherlands delegation disagreed and favoured the notary issuing the EEO certificate concerning the authentic instrument he had earlier drawn-up.70 The French delegation did not object to the principle that notaries could selfcertify but stated a preference for the matter to be left to the determination of the Member State of origin.71 The Austrian delegation echoed this sentiment72 and later repeated it, despite continued Finnish and Polish opposition,73 while predicting (correctly) that such freedom would typically see the notary permitted to self-certify the authentic instruments he had drawn-up.74 The Austrians also

68 See note from Finnish delegation 26 February 2003 6818/03 JUSTCIV 27 at 2–3. 69 See note from Polish delegation, 10 October 2003 13457/03 JUSTCIV 182 at 2. 70 See Note from Netherlands delegation 27 February 2003 6823/03 JUSTCIV 33 at 8. 71 See Note from French delegation 26 February 2003 6820/03 JUSTCIV 29 at 2. The French proposal remedied part of the difficulties the UK anticipated in making the Scottish authentic instrument interact with the new Regulation, see Note from UK delegation 27 February 2003 6822/03 JUSTCIV 31 at 5. 72 See note from Austrian delegation 26 February 2003 6817/03 JUSTCIV 26 at 2. 73 See note from Finnish delegation 4 September 2003 12229/03 JUSTCIV 149 at 1. 74 According to the 2012 RAND Report (n 36) 54, 13 of the then EU Member States in which an authentic instrument could be drawn-up or otherwise created for the purposes of the EEO Regulation allowed the author notary (or their successor) to certify (Belgium, Germany, France, Greece, Spain, Lithuania, Luxembourg, the Netherlands, Austria, Portugal, Romania, Slovenia and even Finland (The Finnish notary cannot create what would be regarded as a traditional notarial authentic instrument but can by certifying a maintenance agreement established by Finnish administrative authorities do so via Art 4(3)(b) EEO Regulation). For Bulgaria, Estonia, Italy, Malta, Poland, Slovakia, and the UK legal systems the court certifies.

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noted an issue concerning who could rectify the certificate issued by the notary.75 If, the Austrians enquired, only the original notary was legally competent to certify the authentic instrument he had drawn-up, could the courts in the Member State of origin still address the rectification of notarial authentic instruments?76 The Austrians claimed that judicial oversight was necessary at the point of rectification by arguing, for the rectification procedure … a court should have jurisdiction, for it would be in breach of Article 6 of the European Convention on Human Rights for a notary (or another non-judicial authority) to be able to take a binding decision on the existence of the conditions for the issue of a certificate.77

The Austrian rectification point was reflected by what became Article 10 of the final Regulation. Barring the unelaborated restatement of its February position by the French delegation78 and a further note from the UK explaining why the Scottish authentic instrument arising from registration would best be certified by a court, both sent in October 2003, the discussions on who should certify an authentic instrument as an EEO were resolved by the Presidency Text communicated to the Council in November 2003: this matter was left to the authority designated by the Member State of origin.79 So it has remained in Article 25(1) of the final Regulation text. The Austrian prediction that the probable outcome would be that the Member State would allow the notary who drew-up the authentic instrument (or his successor) to issue the EEO certificate was by 2012 proven correct for 13 of the then EU Member States in which an authentic instrument could be drawn-up or otherwise created for the purposes of the EEO Regulation (Belgium, Germany, France, Greece, Spain, Lithuania, Luxembourg, the Netherlands, Austria, Portugal, Romania, Slovenia and Finland):80 for the six remaining Member States (Bulgaria, Estonia, Italy, Malta, Poland, Slovakia) the application for certification is made to a court. Otherwise the procedures in the EEO Regulation for the enforcement of authentic instruments differ from those for judgments because there is no recognition stage, and because Article 25(3) excludes the application of Articles 5, 6(1), 9(1), 21(1) and 22 in connection with authentic instrument enforcement. Equally Chapter III (Articles 12–19) does not apply to authentic instruments.81 Other than Chapter I and Article 25 of Chapter V, which unambiguously do apply to 75 See note from Austrian delegation 4 September 2003 12222/03 JUSTCIV 147 at 5. 76 The French had made a related point concerning the ability of a successor of a notary to issue a certificate for an authentic instrument they had not drafted. 77 n 75, at 5. 78 See note from French delegation 21 October 2003 13775/03 JUSTCIV 199 at 9. 79 See note from Presidency to Council 25 November 2003 15226/03 JUSTCIV 257 at 26. 80 See RAND Report (n 36) 54. The position of the Finnish notary is set out in n 73 above. 81 The exclusion can be inferred from the exclusion of Art 6(1)(c) and from the fact that Chapter III only concerns the ‘minimum standards’ for that limited class of EEO certified judgments when the debtor is still deemed to be ‘legitimately ignorant’ of the existence of the judgment creditor’s claim.

The Legal Requirements for the Circulation of an Authentic Instrument  199 authentic instruments, Article 25(3) declares that the remaining non-excluded parts of Chapters II and IV and the brief concluding Chapters VI–VIII will in the usual deplorably imprecise and uncertain fashion, apply ‘as appropriate’ to authentic instruments.82 The discussion that follows is not a commentary but sets out the most salient points concerning the application of Articles within the Regulation to the class of enforceable titles that it regards as ‘authentic instruments’.

B.  The EEO Regulation i.  Subject Matter and Minimum Standards Article 1 EEO Regulation is headed ‘subject matter’ and sets out the purpose of the Regulation: this is stated to be to create a European Enforcement Order for uncontested claims to permit, by laying down minimum standards, the free circulation of judgments, court settlements and authentic instruments throughout all Member States without any intermediate proceedings needing to be brought in the Member State of enforcement prior to recognition and enforcement.

According to Article 1, the purpose of the Regulation is intimately associated with the laying down of the minimum standards that will allow uncontested claims to circulate freely. The drafting of Article 1 indicates that this reference to minimum standards applies to all enforceable titles: Recital 11 reinforces this aspect of the legislator’s intention by stating that the Regulation seeks to promote fundamental rights (including the right to a fair trial as per Article 47 of the CFREU). The importance of this observation in the present context is because the special category of minimum standards provided by Chapter III of the Regulation does not apply to any authentic instruments, to any settlement or to most judgments. Chapter III’s minimum standards, as explained by Recital 12, only applies to a narrow sub-set of judgments for which the judgment debtor must receive information to be able to exercise their defence rights.83 In simple terms the special ‘minimum standards’ set out in Chapter III only apply to an uncontested claim based on a judgment if it is one that the debtor could ‘legitimately’ claim to be ignorant of. Once the creditor complies with the Chapter III ‘minimum standards’, they remove the judgment debtor’s potential to argue ‘legitimate ignorance’ and judgment recognition and enforcement proceed via the EEO. If the judgment debtor always lacked a legitimate basis for their ignorance, the minimum standards set out in Chapter III are irrelevant. 82 Thus Arts 6(2–3), 7, 8, 9(2), 10, 11, 20, potentially 21(2), 23 and 26–33 apply ‘as appropriate’ to an Art 25 authentic instrument. 83 A comparison of the standard forms from Annex I (judgments), Annex II (court settlements) and Annex III (authentic instruments) reinforces the irrelevance of Chapter III’s special minimum ­standard requirements for authentic instruments and settlements: Annex I requires 13 substantive question headings whereas Annexes II and III each manage with six.

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Regardless of the special category of Chapter III minimum standards, the general Article 1 and Recital 11 minimum standards must remain relevant for all EEO Regulation enforcement titles, including authentic instruments. It cannot be that the Regulation was designed to violate the debtor’s right to a fair trial84 (nor any other essential principle of human rights law) for all but a narrow subset of judgment debtors granted a temporary protected status that the creditor can remove by their actions. It is unarguable that Article 1 and Recital 11 make plain that the operation of the EEO Regulation cannot be allowed to violate essential principles such as the right to a fair trial protected by EU and other human rights provisions and by the constitutional and procedural laws of the enforcement venue. The extent to which this proposition provides an unstated alternative to a public policy exception to the enforcement venue’s enforcement obligation is considered below in Part 3. a.  Excursus: The Deletion of the Commission’s Proposed Debtor Warning Requirement The Commission’s 2002 proposed text featured an addition to what is now Article 25, that imposed a warning function on the authenticating authority (eg the person who would draw-up or register the authentic instrument) requiring that the putative debtor be informed of the authentic instrument’s potential for direct cross-border enforceability across Europe before they (the debtor) could consent to its formal drawing-up (or registration) and further requiring that its eligibility for EEO certification required the authentic instrument to have been drafted to contain a clause signed or attested by the debtor to the effect that they had received this warning information.85 Though this was the only overt means of debtor ‘protection’ in the 2002 proposal that applied to authentic instruments, it was not adopted. The French delegation doubted the utility of providing the information to the debtor and requested deletion claiming, rather implausibly, that the draft third paragraph made, ‘very complicated demands which could create confusion in practice’ in relation to authentic instruments that might not be intended for cross-border use.86 Contemporaneously the UK delegation suggested a revision to accommodate the fact that the Scottish authentic instrument is not drawn-up by a notary (alternatively placing the information burden on the creditor rather than exclusively on

84 It must be remembered that ‘fair trial’ human rights extend to enforcement and that they are not barred by non-contentious proceedings. 85 See draft Art 26(3)(b) 2002 Proposal. 86 See Note from French delegation 26 February 2003 6820/03 JUSTCIV 29 at 2. The French objection is implausible: it cannot be that a notary cannot advise or warn the parties of the cross-border enforcement potential of a contemplated authentic instrument and cannot include a clause in the authentic instrument to certify that they provided that information.

The Legal Requirements for the Circulation of an Authentic Instrument  201 the notary or other authority).87 The Netherlands delegation, though claiming to be favourably disposed to the intended protection of the debtor, also questioned the warning function then located in the third paragraph: asking how the statement on direct enforceability could apply if enforceability was actually conferred after the document was drawn-up, and questioning further whether the draft third paragraph unduly restricted the eligibility of authentic instruments drawn-up without complying with its requirements from being retroactively enforced via the EEO procedure.88 In June 2003, the deletion of the disputed third paragraph was mooted; the UK89 wished to retain it but others did not.90 The draft third paragraph was recorded as ‘deleted’ in the Presidency Text of late November 200391 and thereafter neither of its mooted debtor warning functions apply to EEO authentic instruments in the Member State of origin. According to the Regulation there is no need to warn the debtor of the cross-border enforcement potential of the authentic instrument92 and nor need the authentic instrument be drawn-up to feature a clause by which the debtor acknowledges their receipt of that warning consents to permit the issue of the EEO Certificate.

ii. Scope The scope of the Regulation is established by Article 2. To allow the creditor to choose freely between the enforcement options of the Brussels I Regulation or the EEO Regulation it was necessary to synchronise the subject matter scope of the latter with the former. Thus Article 2 EEO Regulation sets out a very similar version of the same subject matter scope concerning ‘civil and commercial matters’ to that provided by the original Brussels Convention of 1968 and by the Brussels I Regulation. At the time of drafting, Article 2 of the EEO Regulation deviated from the equivalent subject matter scope of the Brussels I Regulation by including in Article 2(1) an express exclusion of state liability93 for claims concerning acts or omissions concerning acta iure imperii and by recording at Article 2(3) that Denmark is not to be regarded as a Member State for the purposes of applying the EEO Regulation.94 Both sophistications reflect Crifo’s earlier point concerning the

87 See Note from UK delegation 27 February 2003 6822/03 JUSTCIV 31 at 5. This suggestion was accepted, and the suggested wording reached the draft Presidency Text: it did not however reach the final Regulation as the draft third paragraph was deleted. 88 See Note from Netherlands delegation 27 February 2003 6823/03 JUSTCIV 33 at 8. 89 See Note from UK delegation 15 October 2003 13634/03 JUSTCIV 186 at 3. 90 See Note from French delegation 21 October 2003 13775/03 JUSTCIV 199 at 9 repeating their concerns set out on 26 February 2003. 91 See Note from Presidency to Council including draft text 25 November 2003 15226/03 JUSTCIV 257 at 26. 92 It may well be that domestic notarial rules already feature such a warning function. 93 Now also included in Art 1(1) of Regulation 1215/2012 the Brussels Ia Regulation. 94 See also Recital 25.

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drafting of the EEO Regulation appearing to suggest a list of conditions permitting (or preventing) the issue of the EEO certificate to the creditor by the relevant authority.

iii.  Temporal Application The temporal application of the EEO Regulation is set out in Articles 26 and 35. The Regulation can only apply to authentic instruments within its scope that were drawn-up or registered since 21 October 2005. For Member States that had not acceded to the EU by this crucial date, the Regulation is effective after their accession date, eg after 1 January 2007 for Bulgaria and Romania, etc. Authentic instruments drawn-up or registered on or before 21 October 2005 cannot benefit from enforcement via the EEO Regulation. An authentic instrument drawn-up in France on 1 December 2006 may however be presented for enforcement in Romania on 2 January 2007 despite being drawn-up at a point in time when Romania was not an EU Member State.95 As long as the enforcement title from the Member State of origin arises after 21 October 2005 and is presented in another participating EU Member State after that State has become an EU Member State, the accession date of the chosen enforcement venue has no further relevance to the temporal operation of the Regulation.

iv.  A Definitions Section Article 4 is the definition section of the Regulation. It defines what is meant by a ‘claim’ and, for the first time in a European private international law Regulation, defines what is an ‘authentic instrument’ for that Regulation. Article 4 is also notable for what it does not define; surprisingly there is no definition of the essential term, ‘uncontested’. The definitions section in the draft 2002 Commission Proposal did include in draft Article 3(4) four types of claim (one of which concerned an authentic instrument) that variously exemplified the ‘uncontested’ claims s­ uitable for EEO certification: as such exemplification did not though define the term ‘uncontested’, and as no replacement definition were introduced, these exemplifications were eventually removed from the definitions provision and relocated to Article 3(1)(a–d) of the final text.

v.  Defining a ‘Claim’ Article 4(2) defines a ‘claim’ as ‘a claim for payment of a specific sum of money that has fallen due or for which the due date is indicated in the judgment, court settlement or authentic instrument’. To use the EEO Regulation to recover such 95 See W Zenker Art 26 n 6 in volume 2 of R Geimer and R Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen (Munich, CH Beck) 325 (looseleaf).

The Legal Requirements for the Circulation of an Authentic Instrument  203 monetary claims, whether contained in an authentic instrument or in any other enforceable title, the money claim must either; have fallen due for payment, or, must indicate a due date in the enforceable title itself. The second possibility was not included in the Commission’s original 2002 Proposal, which envisaged only the narrower concept of a ‘claim’ concerning a sum that had fallen due.96 The definition of ‘claim’ changed at various points in the course of the negotiations because it was questioned whether it should also include related judgment costs such as: a) the costs associated with bringing court proceedings; and b) periodic payments (such as interest obligations) that had not yet fallen due, but were specified in the judgment presented for EEO certification and cross-border enforcement.97 The addition of these possibilities to the draft definition of a ‘claim’ concerning a judgment is first visible in the Presidency text of 20 December 2002.98 The eventual decision to put ‘costs relating to court proceedings’ into a discrete article (final Article 7) allowed the definition text of ‘claim’, and its footnote in the same Presidency text of 20 December 2002, to show that the extension was intended to allow periodic payments and interest to also be claimed in relation only to judgments, this accorded with the suggestion from the European Economic and Social Committee (EESC) received earlier that month that also was restricted to judgments.99 This definitional extension was thus intended to facilitate the judgment creditor claiming all sums that were due for payment at the point of enforcing their judgment rather than merely those that had fallen due at the point of EEO Certification. Was it intended to apply to authentic instruments too? The Presidency text of 20 December 2002 included authentic instruments in Chapter I but stopped at Chapter IV, thus omitting the Chapter V provisions concerning authentic instruments. At that point authentic instruments had not yet been considered in detail, thus it is difficult to know whether they were excluded from the definitional extension with intent rather than in default of contemplation.100 From February 2003, however, authentic instruments were considered as part of the drafting process and yet still they were not included in the definitional extenuation of ‘claim’ in any available draft text of that year or until the Council’s Common Position of

96 See 2002 proposal p.19 COM (2002) 159 final. 97 The possibility of extending the definition of claim to include sums in judgments not yet due but capable of precise calculation was suggested by the opinion of the EESC of 11 December 2002. See Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Regulation creating a European Enforcement Order for uncontested claims’ (COM(2002) 159 final – 2002/0090 (CNS)) (2003/C 85/01) at para 3.3. 98 See Note from Presidency to Committee on Civil Law Matters of 20 December 2002,15783/02 JUSTCIV 204 Art 3(3) at 3. 99 See para 3.3 of EESC opinion of 11 December 2002 (n 97). 100 Authentic instruments and settlements were – in a manner of speaking – next on the agenda after December 2002 and were discussed following submissions from the delegations in February/March 2003.

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6 February 2004.101 This Common Position did away, without explanation, with the definitional distinction which had endured for over a year between what could be claimed for a judgment and for the other enforceable titles: it did this by tacking settlements and authentic instruments after ‘judgments’ to thereafter define ‘claim’ in the same extended manner for each enforceable title as per final Article 4(2) EEO Regulation. The final definition of ‘claim’ in Article 4(2) EEO does not restrict the extension of ‘claim’ to only cover periodic claims or interest accruing after certification and the recitals do not assist on this point: it remains unclear from the final text that the extension was in fact introduced only to facilitate such an additional and accessory possibility in relation to a different principal sum that had fallen due in relation to the relevant enforceable title. As there is no explanatory ‘gloss’ to this effect in the final text, the claims suitable for EEO certification need not concern only money payments that have actually fallen due; they may also concern claims for which ‘the due date is indicated’ in the enforceable title. This definitional extension is very significant for the cross-border enforcement of authentic instruments as it provides their creditor with an unqualified alternative claim in connection with an enforceable title that has not yet ‘fallen due’ but does, as will be the case in all enforceable authentic instruments, indicate the due date for the sum claimed in the relevant enforceable title.102 Before the change introduced by the 2004 Common Position, an authentic instrument drawn-up to require repayment of a loan in 12 months’ time could not be certified for ­cross-border enforcement until the principal sum fell due: after the change the creditor can, despite the principal sum not yet being due, still proceed to EEO Certification and then to exequatur-free cross-border enforcement at any time within that 12 months if the authentic instrument is, as it will be, drawn-up to comply with the unqualified alternative meaning of ‘claim’ merely by indicating the due date. In response to the superficially reasonable objection that though this change means that a creditor may be able to secure the EEO certificate a little early, they will not then be able to enforce it in the enforcement venue if the money claimed is not actually due; not only may unscrupulous authentic instrument creditors thus apply pressure to the debtor, but it is far from certain that an application would fail if presented in a legal system that allows notarial authentic instruments to be drafted to permit the creditor to proceed to immediate enforcement from the point at which the instrument is drawn-up: accordingly, many domestic enforcement agencies in receipt of an ‘early’ EEO claim by the authentic instrument creditor (as seemingly permitted by Article 4(2)) will not necessarily find it unusual or premature.

101 Common Position adopted by the Council on 6 February 2004 16041/1/03 Reve 1 JUSTCIV 269 at 10. 102 ibid.

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vi.  Defining ‘An Authentic Instrument’ Article 4(3) defines the term ‘authentic instrument’ for the purposes of the EEO Regulation. According to Article 4(3) an ‘authentic instrument’ is either: (a) a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which:

or

(i) relates to the signature and the content of the instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates;

b) an arrangement relating to maintenance obligations concluded with a­ dministrative authorities or authenticated by them …

This EEO definition includes two quite different types of authentic instrument. Only the authentic instrument defined in Article 4(3)(a) is familiar. It is, with a small extension, the type of authentic instrument drawn-up or registered in essential accordance with the model provided by the Brussels I family of instruments and the Unibank decision of the CJEU. The other type of authentic instrument created by the definition in Article 4(3)(b) is, seemingly unintentionally, something new; it is an arrangement concluded by an administrative authority (or authenticated by this authority) that concerns ‘maintenance’ obligations. This second type of authentic instrument is one that clearly was modelled on the content of Article 57(2) of the Brussels I Regulation, how then can it be new?103 The novelty arises because Article 57(2) merely said that such arrangements ‘shall also be regarded as authentic instruments …’ (my emphasis), it did not define them as authentic instruments. As the EEO Regulation does define such maintenance arrangements as ‘authentic instruments’ it thereby, seemingly by accident, created the first example of an alternate EU form of authentic instrument: as this form often maps precisely onto the domestic version of the legal institution in the legal systems which already feature it, few appear to have noticed the EU’s creation of a new EU version of the domestic legal institution. The EEO Regulation however specifies that there are two different types of authentic instrument: Article 4(3)(a) and Article 4(3)(b). This revelation, which does not appear to have attracted any comment in the course of the drafting process, leads to a surprising conclusion: even if a legal system (to which the EEO Regulation applies) does not domestically feature any Article 4(3)(a) authentic instruments, it may still generate an Article 4(3)(b) authentic instrument for certification and export via the Regulation if it has ‘administrative authorities’ who can either conclude an arrangement relating to maintenance obligations or can ‘authenticate’ such an arrangement. Lest it is thought that this conclusion can only be reached via an ‘academic’ reading of the text it should be noted that in Sweden and Finland,

103 2002

Commission Proposal COM (2002) 159 final, 6 and 20.

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two Member States with legal systems historically lacking any domestic authentic instruments, exactly this has happened.104 The Article 4(3)(b) authentic instrument does not appear to follow the Unibank jurisprudence and differs from the Article 4(3)(a) authentic instrument as it can seemingly be either a private arrangement (relating to maintenance obligations) drawn up by its participants that the enforcement agency has merely ‘authenticated’, or an arrangement relating to maintenance obligations concluded with, but not otherwise ‘authenticated’ by, an administrative authority. The term ‘authenticated’ is not defined independently by the EEO Regulation. Authentication is of course required for authentic instruments under Article 4(3)(a) as it is a vital part of the Unibank jurisprudence; the drafting of Article 4(3) does not however necessarily suggest that the second type of authentic instrument is intended to follow the requirements of the first. Thus, the Article 4(3)(b) authentic instrument apparently has no overt authentication requirement extending beyond the simplest pre-enforcement evidence of some certification to indicate that an arrangement has eventually involved the ‘administrative authorities’ prior to the certification of a claim relating thereunto as an EEO.105 If the arrangement results from the actions of ‘administrative authorities’, another undefined term, it can be certified as such without any ‘authentication’. As the relevance of the Article 4(3)(b) EEO ‘authentic instrument’ has not generated any case law of which the author is aware, and as the matter is now intended to be addressed by the 2009 Maintenance Regulation,106 there is no present need to discuss its operation further: it is merely noted that it is still possible for the Article 4(3)(b) authentic instrument to allow the maintenance obligation creditor the option of enforcement via the EEO Regulation if the Member State of origin has noticed the possibility and possesses the required ‘administrative authority’. Turning to the more familiar, and important, Article 4(3)(a) authentic instrument; it is notable that with one small change it follows the approach of the Unibank and Brussels I family concerning the requirements for an authentic instrument. It lists the essential minimum requirements of that which can be treated as an authentic instrument for the purposes of the EEO Regulation but does not otherwise attempt to regulate the different forms the legal institution may assume in Member State legal systems. Given the similarity between this EEO authentic

104 According to their notifications, Sweden and Finland each allow Art 4(3)(b) EEO authentic instruments to be created: the Swedish Social Welfare Board (Socialnämnd) is competent to issue such authentic instruments and to certify them as EEOs; a Finnish maintenance agreement endorsed and certified by the town or municipality ‘Social Board’ is regarded as an Art 4(3)(b) EEO authentic instrument. 105 It appears that legal systems that notified that because they do not employ the authentic instrument domestically no EEO certificate may be issued concerning an Art 25 authentic instrument may have missed the point, e.g. Ireland and Cyprus. Though correct for the Art 4(3)(a) authentic instrument, this logic does not follow to disapply the Art 4(3)(b) authentic instrument. In the second case the question is rather, are there the relevant administrative authorities to allow Art 4(3)(b) to operate? 106 The 2009 Maintenance Regulation (effective from 8 June 2011) is discussed in ch 6.

The Legal Requirements for the Circulation of an Authentic Instrument  207 instrument and the authentic instruments of the Brussels I family of instruments discussed in the previous chapter, the reader is referred back to that chapter for all definitional points other than those now discussed.107 Article 4(3)(a)’s one difference between its definitional requirements and those of the Brussels Convention and the Brussels I Regulation is that the EEO Regulation is slightly stricter in also requiring: a) that there be a signature, and b) that it be included in the general authenticity required for the authentic instrument. The authenticated signature issue arose after the 2002 Commission proposal included a definition of ‘authentic instrument’ in draft Article 3(7) based on the Unibank108 jurisprudence: the Presidency text of December 2002 amended this definition to also require that the authenticity of the EEO authentic instrument must additionally relate to the fact of its signature as well as to its contents.109 The reason for this change, which would subsequently also be included in the Article 1(2)(c) definition of authentic instrument in the Brussels Ia Regulation, is not apparent from the available documents, it may however be speculated that it was introduced to bolster the essential ‘uncontested’ aspect of the contemplated Article 3(1)(d) enforcement title by indicating prior debtor consent. According to Article 3(1)(d) of the EEO Regulation a claim concerning an authentic instrument is certifiable/enforceable because ‘the debtor’ has ‘expressly agreed’ to it: with the addition of an authenticated signature from the debtor, the ‘uncontested’ nature of the authentic instrument claim is much clearer. It is suggested that the requirement for demonstrable express agreement by the debtor is the most plausible reason for the insertion of the authenticated signature requirement and for the lack of traction concerning the objections raised by the Austrian delegation to the new authentication requirement in February 2003. The Austrian delegation questioned the change claiming, correctly, that it was a departure from the provisions of Article 57 of the Brussels I Regulation and that the requirement that the fact of signature also be authenticated would restrict that which could qualify as an authentic instrument capable of EEO certification originating from Austria.110 The Austrian concerns (some of which were arguably even then soluble via what is now the Article 4(3)(b) authentic instrument or via the provision on settlements) did not however reverse the change to the amended draft Presidency text, and the final version of the definition in Article 4(3)(a)(i) EEO reflects this. The authentication of an authentic instrument to be certified as

107 See ch 4, s III generally. 108 Unibank A/S v Flemming G Christensen [1999] ECR 3715. 109 Presidency text 20 December 2002, 15783/02 JUSTCIV 204 at 4. 110 See note from Austrian delegation 26 February 2003, 6817/03 JUSTCIV 26 at 2 listing, agreements recorded in court or before an administrative authority, maintenance settlements which the administrative authority has “beurkundet” (authenticated) but not “beglaubigt” (certified), settlements by lawyers confirmed by the court as enforceable, etc.). It is therefore of vital importance to Austria that the terminology of the German version of the Brussels I Regulation be retained (“Beurkundung” instead of “Beglaubigung”) and that no requirement of authenticity of signature be introduced’ (emphasis in original).

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an EEO under Article 4(3)(a) of the Regulation, must concern its content and its signature (or signatures) in like fashion. Without authenticated signatures an otherwise ‘Unibank compliant’ document, understood domestically to be an enforceable authentic instrument, cannot be certified or enforced via the EEO Regulation as an Article 4(3)(a) authentic instrument. This seems correct: if a domestically enforceable authentic instrument can be drawn-up or issued in a Member State to oblige the debtor to pay without evidence of their consent by authenticated signature, it should not (as a matter of principle) be permitted to be certified/enforced across borders as an ‘uncontested’ claim via an exequatur-free EEO Regulation.111 Without some demonstration of the debtor’s express agreement to enforcement it cannot be established from the documents provided by the creditor that the debtor ever did expressly agree to this enforceable title in a manner that renders the relevant claim sufficiently ‘uncontested’ for the Regulation to apply. That said, it must be noted that in relation to notarial authentic instruments, the Austrian point was and is of small significance. A notarial authentic instrument containing a debt obligation capable of enforcement will be drawn-up to feature signatures by (or on behalf of)112 all the relevant parties.

vii.  Not Defining an ‘Uncontested’ Enforcement Title The different enforceable titles that are, if uncontested, to be certified as European enforcement orders are set out by Article 3 EEO. Article 3(1)(a–d) EEO enumerates (exhaustively) the four types of ‘uncontested’ claims that permit initial EEO certification in the Member State of origin while Article 3(2) provides an ex post facto means of preserving enforceability for the parts of an initial Article 3(1)(a–d) enforcement title that having survived challenge proceedings leading to a decision are no longer ‘uncontested’ but may still be enforced via the Regulation in so far as that which was formerly ‘uncontested’ remains (post-challenge) available for enforcement via the EEO Regulation. Article 3 This Regulation shall apply to judgments, court settlements and authentic instruments on uncontested claims. A claim shall be regarded as uncontested if: (a) (b) (c) (d)

…; or …; or …; or the debtor has expressly agreed to it in an authentic instrument.

2.  This Regulation shall also apply to decisions delivered following challenges to judgments, court settlements or authentic instruments certified as European Enforcement Orders. 111 The Brussels Ia Regulation no longer provides the alternative enforcement option of its forerunners. 112 The Regulation does not prevent a representative of the debtor signing for them (eg in relation to a power of attorney) if the relevant signature is authenticated.

The Legal Requirements for the Circulation of an Authentic Instrument  209 Article 3(1)(d), subject to the temporal restriction of Article 33 which sets the Regulation’s earliest date of entire operation for the participating Member States as 21 October 2005, indicates that an Article 4(2) ‘claim’ concerning an Article 4 (3)(a) authentic instrument is to be understood as uncontested from the point in time when the authentic instrument was drawn-up (unless the Article 4(2) ‘claim’ in the authentic instrument was drawn-up to indicate that the relevant obligation to pay the creditor should arise at a later point in time) or registered. An Article 4(3)(b) authentic instrument is presumably ‘uncontested’ from either the point at which the arrangement relating to maintenance obligations is ‘concluded with administrative authorities’, or is ‘authenticated by them’. The requirement that the enforceable title be ‘uncontested’ is fundamental to the operation of the EEO Regulation: unless the creditor produces a claim fitting into one of the enforcement titles exemplified in Article 3(1) the relevant authority in the Member State of origin should not issue the EEO certificate. Astonishingly, there is no definition of ‘uncontested’ in the EEO Regulation:113 this is a consequence of both the checklist method of drafting noted above by Crifo, and the somewhat naive assumptions of the proponents and drafters of the Regulation concerning creditors, debtors and the obligations it would be used to enforce. The EEO Regulation was designed to offer deserving judgment creditors a new enforcement route to extract overdue payments from undeserving judgment debtors. These assumptions were generalised to justify a streamlined exequaturfree procedure that remains predicated on the creditor’s ‘straightforward’ claim being deemed uncontested by the court or other authority in the Member State of origin simply by checking whether, at the point of the creditor’s ex parte application, it corresponds with one of the examples of certifiable ‘uncontested’ titles recorded in Article 3(1)(a–d). In 2016 the CJEU confirmed that, in the absence of express definition or a reference back to Member State law, ‘uncontested’ was to be construed autonomously in the context of an Article 3(1)(b) claim:114 it seems reasonable to assume that the other listed examples in Article 3(1) should also be interpreted autonomously according to the Regulation without regard to ­unnecessary domestic law concepts.115 If it is correct that ‘uncontested’ is to be interpreted autonomously for Article 3(1)(d) too, this allows the possibility that despite a given Member State not regarding the instant authentic instrument as ‘uncontested’, it could ­nevertheless be so construed in accordance with the creditor’s application to use the EEO Regulation. 113 The original ‘definition’ provision in the Commission’s 2002 proposal identically exemplified (rather than defined) the same ‘uncontested’ claims now set out in Art 3(1)(a–d) EEO. 114 Case C-511/14 Pebros Servizi Srl v Aston Martin Lagonda Ltd ECLI:EU:C:2016:448 at para 37. 115 ibid, para 37 second sentence, ‘The reference to the laws of the Member States in Article 3(1)(b) and (c) of that Regulation does not relate to the constituent elements of that concept, but concern the specific elements of its application’. That Italian law did not regard the inaction of defendant Aston Martin as indicating an uncontested claim was irrelevant because it was so regarded by the Regulation: the Italian procedural law did though determine inter alia the time limits in which the claim could be contested (there being no Regulation provision on that point).

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The EEO concept of an uncontested claim thus appears to relate to the mechanical issue of whether a claim may be deemed ‘uncontested’ in accordance with the Article 3(1) checklist at the point of certification. Thus an Article 4(2) claim from the creditor will, according to Article 3(1)(d), be deemed uncontested if the debtor appears to have expressly agreed to it in an earlier authentic instrument, as defined by Article 4(3). It is difficult to envisage any properly drawn-up notarial authentic instrument capable of the enforcement contemplated by the EEO Regulation for which such a certificate could not be granted. a.  Excursus: The Effect on the Enforcement Title of the Debtor Disputing the Debt in the Member State of Origin and Article 11 EEO Though for the purposes of the Regulation an enforcement title may be ‘uncontested’ in a technical sense at the point of certification, this does not mean that the claim it concerns is undisputed; the debtor may legally dispute the existence of the debt in the Member State of origin throughout the entire EEO enforcement process. Depending on the legal challenges commenced and the reaction of the legal system operating in the Member State of origin, such disputation may prevent or affect the issue of the EEO certificate and may affect the domestic enforceability of the enforcement title itself. At first glance the EEO Regulation appears to be drafted such that commencement of legal proceedings by the debtor in the Member State of origin does not automatically suspend the ­effectiveness of the creditor’s enforcement title or suspend the EEO certificate in the enforcement venue. Thus, despite the debtor commencing proceedings in the Member State of origin, cross-border enforcement can potentially continue via the Regulation unless the debtor also applies successfully in the enforcement venue for an Article 23 limitation or stay of enforcement.116 Matters are different if the debtor’s commencement of a challenge in the Member State of origin will itself suspend automatically the legal effects and domestic enforceability of the enforcement title; in this circumstance the potential for a disjunction between the enforceability of the title in the Member State of origin and the enforcement venue becomes acute. The solution to this, and to many other manifestations of the problem, is provided by an important but, at least in the English literature and case law, rarely noticed part of the Regulation, Article11. Article 11 The European Enforcement Order certificate shall take effect only within the limits of the enforceability of the judgment.117

116 Though a debtor may use Art 23 EEO to apply for a stay of the enforcement proceedings in the enforcement venue its drafting requires ‘exceptional circumstances’ to be present before it can be granted. 117 Art 11 is included in the Regulation provisions that are required to be applied, ‘as appropriate’ to settlements and authentic instruments.

The Legal Requirements for the Circulation of an Authentic Instrument  211 Article 11 EEO should be understood to communicate – albeit in a somewhat Delphic fashion118 – the current enforceability of the enforcement title in the Member State of origin to the enforcement venue; if the enforcement title loses (whether temporarily or finally) its Member State of origin enforceability, Article 11 is intended to ‘communicate’ this to the authorities in the enforcement venue to justify them suspending enforcement proceedings against the debtor that are now based merely on an EEO certificate that though notionally extant has been suspended or annulled in the Member State of origin and thus is out-of-date and insufficient on its own (according to Article 20(2)) to allow cross-border enforcement to proceed. What is now Article 11 EEO was proposed for insertion into the Regulation during 2003.119 The available evidence suggests that this occurred because of the somewhat controversial decision to only require that the Regulation’s enforcement titles be ‘domestically enforceable’ rather than being ‘final decisions’ in the Member State of origin.120 The point that cross-border enforcement via the EEO Regulation depended on the continued existence of the domestic enforceability of the relevant enforcement title was made in a communication between Presidency and Council of 13 June 2003. 4. Enforceability of the judgment in the Member State of origin as a sufficient ­requirement for certification as an EEO. The Council agrees that a judgment can be certified as an EEO not only where it has acquired the authority of a final decision but also where it is enforceable in the Member State of origin. In the latter case, an appeal in the court of the Member State of origin may have consequences on the enforceability of the judgment under its own law, either automatically (ipso jure) or following the decision rendered upon application by the debtor. A withdrawal of enforceability in the Member State of origin must have the same effect in other Member States.121

The first draft version of what became Article 11 in the final EEO Regulation was introduced at the end of June 2003 and was modelled on a draft provision with similar effect that was also under contemplation in the ongoing proceedings that would lead to the Brussels IIa Regulation.122 The text and position of Article 11, as quoted

118 Surprisingly, Art 11 is ignored by all the UK practitioners’ texts discovered by this author. 119 See Presidency Note of 30 June 2003 10660/03 JUSTCIV 92 at 6 for draft Art 7A. ‘The certificate shall take effect only within the limits of the enforceability of the judgment’. 120 See comment in May 2003 at 8 concerning an appeal by the debtor after certification, ‘Due to the self-evident and well-established principle that a decision may not produce broader enforceability effects in another Member State than in the Member State of origin, a suspension of enforceability in the Member State of origin must have the same effect in other Member States’. Para 34 of Presidency to Coreper of 23 May 2003 9728/2003 JUSTCIV 80. 121 Presidency to Council of 13 June 2003 10427/03 JUSTCIV 85 3 at 4 (my italics). 122 Presidency Note of 17 October 2003 13334/03 JUSTCIV 177 clarified in fn 1 at 7 that draft Art 7A was based on draft Art 49X of the Brussels IIa proposal (Art 44 of the final Brussels IIa Regulation). Though the first version of what became Art 11 EEO came from the Brussels IIa proposal, it is also correct to say that final Art 44 of the Brussels IIa Regulation was derived from Art 11 EEO.

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above, was finalised by the Common Position of 2004123 and makes plain124 that it is the domestic status of enforceability concerning the enforcement title granted in the Member State of origin that defines its potential and possible cross-border enforcement in the enforcement venue selected by the creditor. Equally, and logically, Article 11 demonstrates that it is the enforcement title, and not the certificate, that is enforced: it follows that if a certificate is not (or ceases to be) accompanied by an enforcement title capable of domestic enforcement it cannot be enforced in other Member States under the EEO Regulation. It also follows from the clarification offered by Article 11 that an enforcement title is supposed to be prevented from benefitting from any greater grant of legal effectiveness in terms of enforcement in the foreign enforcement venue than it could enjoy in the Member State of origin. If an unamended EEO certificate is presented in the enforcement venue by a creditor who wishes to proceed to attempt to enforce a judgment, authentic instrument or settlement the legal effect of which has been subsequently suspended or annulled in the Member State of origin, the enforcement venue should cite Articles 11 and 20(2) as reasons to refuse their request.125 Though the point is elementary, it may be worth noting that the aforesaid action does not amount to a révision au fond.

viii.  ‘Challenging’ the EEO Certificate via Article 10 Though Article 10(4) makes it plain that it is not possible to legally challenge the fact of the issuance of the EEO certificate, either creditor or debtor are free to bring proceedings in the Member State of origin to request the rectification or withdrawal of the certificate. Such Article 10 applications are important because, subject to the potential effect of Article 11, cross-border enforcement proceeds from the creditor’s presentation of a compliant enforcement title and EEO certificate (and potentially an Article 20(2)(c) transcription/translation of only the EEO certificate). Therefore, if the enforcement title is valid and enforceable in the Member State of origin, enforcement may only be resisted (via the Regulation) if the debtor brings an Article 10 challenge to the EEO certificate in the Member State of origin:126 the bringing of such an Article 10 challenge then allows the debtor to apply in the enforcement venue for Article 23 measures to limit, restrict or stay cross-border enforcement that, if granted, form the basis for

123 Common Position of 3 February 2004 16041/03 JUSTCIV 269 at 15. 124 In November 2003 there had been an unsuccessful attempt by the German delegation to make the draft provision even more explicit (‘Die Bescheinigung ist nur wirksam, soweit die Vollstreckbarkeit der Entscheidung reicht’, loosely ‘The certificate is only effective insofar as provided by the enforceability of the decision’) Note from German Delegation 7 November 2003 14461/03 JUSTCIV 241 3. 125 The operation of Art 11 is discussed in more detail in s III below. 126 The primacy of the Member State of origin is asserted by Art 21(2) which forbids the enforcement venue from permitting any review of the substance (révision au fond) of the judgment or its certification in the enforcement venue.

The Legal Requirements for the Circulation of an Authentic Instrument  213 further modification of the EEO certificate (again in the Member State of origin via Article 6(2)). All Article 10 applications must be made to the court in the Member State of origin; no other authority is entitled to apply Article 10.127 An Annex IV form is provided for Article 10 applications.128 Article 10 proceedings are, unsurprisingly, subject to the law of the Member State of origin.129

ix.  After a Challenge to an ‘Uncontested’ Enforcement Title The creditor-friendly methodology of the Regulation continues in relation to Article 3(2) which applies to preserve the option of employing the Regulation to enforce the parts of the ‘uncontested’ claim that have withstood a debtor’s challenge in the Member State of origin even though they can no longer be regarded as ‘uncontested’. Article 3(2) clarifies various aspects of the effect of subsequent challenges on an EEO certificate: first, it usefully prevents the mere lodging or notional conduct of a challenge from removing the essential uncontested status of the EEO claim, a decision concerning the challenge is required to affect the initial certificate; second, it allows the continuation of the enforceability of the parts of the original certified claim (if any) that survive the challenge decision as a replacement Article 3(2) enforcement title; finally it can be inferred from considering Article 3(2) and Article 11 together that a decision following the debtor’s successful challenge terminates the cross-border enforceability of those parts of the creditor’s initial claim that it quashed via the Regulation.130 Article 6(2) indicates that the Member State of origin will, on application, issue a certificate on the Annex IV standard form to clarify that the relevant enforcement title has ceased to be enforceable (in whole or in part) or that its enforceability is suspended or limited (in whole or in part) eg as a consequence of a successful Article 23 application in the enforcement venue. Article 6(3) provides for the issue of a replacement EEO certificate, on the Annex V standard form, featuring the surviving parts of the creditor’s claim.131 Though neither Article 3(2) nor Recital 7 indicate explicitly what sort of challenge is contemplated, it is submitted that a direct challenge to the relevant part of the alleged enforcement title is required; the challenge cannot be to any aspect of the certificate as Article 10 and Article 6(2–3) are provided for this. The Member State of origin will often be the main and indeed only venue for certain types of challenge concerning many aspects of enforcement titles, including court approved settlements and authentic instruments. Only the Member State of origin could entertain challenges to the formal validity/instrumentum of an authentic instrument drawn-up, registered or concluded within its territory. 127 Art 10(1) EEO. 128 Art 10(3) EEO. 129 Art 10(2) EEO. 130 Art 11 confirms that the EEO certificate can only take effect concerning the enforceability of the judgment or other enforcement title. 131 Art 6(2–3) must each be read purposively with reference to Art 25(3) and to the drafting of the Annex IV and V standard forms.

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A challenge to the negotium of such an authentic instrument could however theoretically occur in any participating Member State via the jurisdictional ­possibilities of private international law. If this was to occur, the operation of Article 11 becomes more involved: can it still operate to communicate any reduction in enforceability concerning the enforcement title directly to the enforcement venue, or must this information first be received, recognised and then transmitted onwards to the enforcement venue by what for the original EEO application is the Member State of origin? In each circumstance it is possible that the Member State of origin might not agree that the negotium challenge had affected the enforceability of the enforcement title: in the absence of such agreement it would be difficult to conclude that the challenge located in a third State could override the enforceability conferred by the Member State of origin. Circumstances may encourage a debtor with the option to locate such an ambulatory negotium challenge in what for the EEO Regulation is the Member State of origin. To this end it may be noted that if a replacement EEO certificate is to be issued on the Annex V form, Article 6(3) requires that the challenge decision is enforceable in the EEO Member State of origin: most such decisions within a participating EU Member State would satisfy this requirement, subject to Article 45(1) of the Brussels Ia Regulation potentially depriving a challenge decision of the necessary enforceability in what for it would be the Member State addressed, but for the EEO Regulation would still be the Member State of origin.132 In most cases the challenge to an authentic instrument contemplated by Article 3(2) and the subsequent application to amend the certificate will be brought by the targeted debtor, there is however no textual indication in Article 3(2), in Recital 7, or in the relevant EEO Annexes133 that a challenge brought by one targeted debtor cannot, if of sufficient generality, be potentially relevant to other debtors also targeted by a claim derived from the same authentic instrument enforcement title. Arguably Article 11 provides the means to broaden such a challenge to include other debtors in the same enforcement venue and, as indicated above, to potentially broaden it also across other Member State enforcement venues. The preceding analysis may however be complicated if for one debt the creditor has different EEO certificates issued for each debtor and then presents his enforcement against each debtor in a different location. Can the need for multiple debtor challenges in the Member State of origin be avoided? Articles 10 and 11 still apply, but the debtor who does not challenge in the Member State of origin is seemingly incapable of pursuing an Article 23 application in the enforcement venue

132 In which case the debtor unwilling to let sleeping dogs lie might attempt to proceed via Art 6(2) and Annex IV, which only require that there has been a cessation of enforceability (temporary or ­otherwise) concerning the relevant enforcement title but does not locate this or require that the Member State of origin regards the decision concerning this matter to itself be enforceable. 133 The Annexes include provisions for multiple creditors and multiple debtors including in the Annex IV, V and VI forms relevant to post-certification adjustments.

The Legal Requirements for the Circulation of an Authentic Instrument  215 as this requires that he must have challenged in the Member State of origin. If the debtor cannot or will not bring a challenge to the certificate or the title in the Member State of origin he must trust to luck that the threatened enforcement will be averted by the consequences of another’s challenge in the enforcement venue. As the practical application of the Regulation proceeds from the entries on the relevant Annex form completed in the Member State of origin and as the Member State of Enforcement is forbidden to review the EEO certificate, which by an act of supreme drafting folly is all that according to Article 20(3) may be required to be transcribed or translated prior to its presentation in the enforcement venue, the EEO certificate is wrongly sometimes assumed to be de facto conclusive in the enforcement venue. An extreme illustration of this error arose in a case heard in 2012 by the French Cour de Cassation; the case clarified several important issues including the irrelevance of a bare EEO certificate in the enforcement venue if Article 11 has deprived the enforcement title it once described of its enforceability in the Member State of origin.134 The case concerned a spousal maintenance dispute and the consequences arising from an attempt to enforce a judgment on maintenance via an EEO certificate (both from Germany) in France. The judgment creditor presented her judgment and certificate to the French authorities and successfully sought preliminary enforcement measures against the debtor’s French assets in late 2006. Shortly afterwards the debtor challenged the judgment in Germany and used this application to also apply in the French enforcement venue for a stay of the French enforcement proceedings via Article 23 EEO. The debtor won his German challenge to the judgment and won again on further appeal, in 2008 when the OLG Karlsruhe confirmed his victory and declared the judgment on which the EEO certificate had been based was annulled. When, however, the debtor sought to lift the French protective measures, the creditor objected that the German EEO certificate had never formally been withdrawn in Germany and spent the next four years opposing the withdrawal of the initial French ‘interim’ protective measures she had initially secured. As she still had the original, unwithdrawn, EEO certificate (the challenge had been to the judgment) she argued that the EEO Regulation did not allow the French enforcement venue to act independently to revoke, vary or even to review the application of the EEO certificate. The Cour de Cassation agreed that the Regulation prevented the enforcement venue amending the EEO certificate but drew attention to Article 11 which restricted the effectiveness of the incoming certificate ‘to the limits of the enforceability of the judgment’. If, according to the convincing reasoning of the Cour de Cassation, the judgment or other enforcement title that founded the EEO certificate became invalid in the Member State of origin, it followed that Article 11 must restrict the possibilities and legal efficacy described by the extant certificate despite this not being plain from the face of the original unamended certificate.135 134 Cour de cassation chambre civile 2 du 6 janvier 2012 N° de pourvoi: 10-23518. 135 The case is also discussed below in the context of the prohibition of a revision au fond of a ­judgment as per Art 21(2).

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Thus the Court concluded that an enforcement venue might refuse to enforce an incoming EEO certificate that is valid on-its-face if, without undertaking an impermissible Article 21(2) révision au fond exercise, it learns to its satisfaction (eg by production of a foreign court order) that the certificate describes an enforcement title that is no longer valid. As a matter of logic and law this conclusion is scarcely open to doubt. Whether such events will often trouble the courts is a different matter; had the debtor taken the simple expedient of applying via Article 6(2) to a court in Germany he could have presented the French authorities with an unarguable reason to discharge the enforcement restrictions on his property. If however an enforcement venue should find itself in a comparable situation with an unamended EEO certificate and an enforcement title that has subsequently been partially discharged in the Member State of origin, it follows that the enforcement venue on learning of the partial discharge (eg by the production of a copy of the judgment) should, for similar reasons advanced above by the Cour de Cassation, enforce only the surviving parts of the enforcement title as supported by the parts of the original EEO certificate that still retain legal effect via Article 11.

x.  Conflicting Authentic Instruments Though Article 21(1) contemplates the possibility of a conflict between an incoming EEO judgment and an earlier judgment, requiring the enforcement venue to refuse to recognise or enforce the incoming EEO judgment if the debtor applies for this, Article 21(1) is disapplied by Article 25(3) for authentic instruments. The Regulation makes no further provision for conflicts involving its enforcement titles in the enforcement venue. Neither a conflict between an incoming EEO authentic instrument and an earlier domestic authentic instrument136 nor a conflict between an incoming authentic instrument and an earlier judgment137 technically affect the enforcement obligation the Regulation imposes concerning its certified enforcement titles. If such conflicts arise, the law of the enforcement venue must via Article 20(1) EEO provide a solution. This rough-and-ready solution accords with the usual approach to the practical operation of the EEO Regulation which must be saved

136 Recital 66 of Regulation 650/2012 (the Succession Regulation) does envisage a conflict between authentic instruments and suggests that if priority cannot be determined by an authority applying the Regulation the issue should then be determined via the jurisdictional rules of the Regulation. 137 In a national sense this conflict should not occur, in an international scenario a form of it is however possible at the point of enforcement: eg a declaratory judgment from Member State ‘A’ that no maintenance is due from ex-wife to ex-husband is recognised in Member State ‘B’. Afterwards the ex-husband then presents the authorities in State ‘B’ with an EEO maintenance claim for money owed to him by his ex-wife based on an authentic instrument drawn-up/issued in Member State ‘C’. If the incoming EEO enforcement title had been a judgment, Art 21(1) would require Member State ‘B’ to refuse to recognise and enforce it: as however it is an authentic instrument it (seemingly) must be enforced despite the conflict.

What Role for the Enforcement Authorities and Courts  217 from threatened violations of principles concerning the ‘interests of justice’ or human rights norms during the enforcement by the enforcement venue’s application of its enforcement law. It is thus to the possibilities in the enforcement venue that this account now turns.

III.  What Role for the Enforcement Authorities and Courts in the Enforcement Venue? Because it omits any overt exequatur procedure and omits Regulation public policy control in the enforcement venue, the Regulation also omits many of the enforcement procedures that are found in its Brussels I relatives. This is a consequence of what is suggested to be a misguided policy of attempting to further mutual trust and the free movement of enforcement titles by cutting back the common control procedures in the enforcement venue.138 The reasons to describe this policy as misguided are: a) that the existence of common and harmonised control procedures is the very thing that fosters mutual trust and confidence for parties and, importantly, for the authorities of each venue; and b) that the design of the EEO Regulation leaves a ‘vacuum’ in each enforcement venue that can only be filled by the heterogenous domestic procedural laws of each legal system that, unlike the enforcement procedures harmonised since the 1970s by the Brussels Convention and Brussels I instruments, the EU cannot progressively improve by periodic and synchronised reform of the EEO Regulation. For the category of notarial authentic instruments a further matter of regret is that this approach to law reform, and its associated vacuum, each reduce further the possibility of any judicial oversight or monitoring of the cross-border use of civil and commercial notarial authentic instruments within the EU; this reduction is the more severe given that the EEO Regulation represents an alternative (with incentives for the creditor and usually also for the notary) to the enforcement possible via the Brussels I Regulation139 or Brussels Ia Regulation. The EEO Regulation route to cross-border enforcement thus, de facto, minimises the judicial oversight of most, if not quite all, civil and commercial authentic instruments circulating within the EU.140 Aspects of this are explored in Part 3, but at present the actual enforcement possibilities provided by the Regulation are considered.

138 See concerns expressed in the RAND Report (n 36) 21 citing earlier comments also voicing concerns by E Storskrubb, Civil Procedure and EU Law A Policy Area Uncovered 1st edn (Oxford, Oxford University Press, 2008) at 158 and 166 and the similarly tending evaluation of the options offered by C Crifò, Cross-Border Enforcement of Debts in the EU (Alphen aan den Rijn, Kluwer Law International, 2009) 91. 139 Subject to the authentic instrument having been drawn-up after 21 October 2005. 140 Enforcement in Denmark or via either Lugano Convention cannot however proceed via the EEO Regulation.

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As indicated by Article 20(1)’s first sentence, without prejudice to the contents of Chapter VI EEO, the procedural law, and thus the associated procedures, of the enforcement venue apply to the actual enforcement required by the EEO Regulation. As domestic enforcement procedures are not otherwise harmonised by the Regulation, each enforcement venue mostly retains the procedural law that describes and regulates the operation of actual enforcement in its legal system(s); inherent procedural characteristics and quirks are, unless the Regulation says otherwise in Chapter VI, also preserved. For authentic instruments Chapter VI EEO provides only Articles 20, 21(2) and 23. Given this very limited ‘harmonisation’ both creditor and debtor of a notarial authentic instrument can find that cross-border enforcement will entail something of a lottery of different enforcement procedures. Even in relation to founding members of the EEC there are material differences between the actual enforcement of incoming authentic instruments.141 When the other participating EU Member States are added into the equation, some of which have only quite recently established civil procedure laws (and notarial authentic instruments) and some of which have no domestic notarial authentic instruments at all (and hence feature enforcement provisions designed for other types of enforcement title eg judgments) the theoretical extent of this ‘lottery’ expands. As well as such ‘external’ contemplative difficulties caused by variations in the existence of different actual enforcement procedures, the operation of Article 20(1) of the Regulation also raises an ‘internal’ difficulty because Article 20 is one of the provisions that Article 25(3) requires to be applied ‘as appropriate’ to authentic instruments. The issue lies in the second sentence of Article 20(1), which, if adjusted as lightly as possible to apply ‘as appropriate’ by merely swapping the names of the enforcement titles then reads as follows: ‘An authentic ­instrument certified as a European Enforcement Order shall be enforced under the same conditions as an authentic instrument handed down in the Member State of enforcement’.142 In so far as it goes this, save for the fact that notarial authentic instruments are not ‘handed down’, sounds simple. The actualité is however rather less simple because domestic procedures concerning the enforcement of authentic instruments vary across the EU rather more than the equivalent procedures concerning judgments. Assuming (wrongly) that all enforcement venues already had such domestic procedures, they necessarily reflect the domestic notion of an authentic instrument and hence may give too much (or too little) ‘efficacy’ to any foreign authentic instrument presented for enforcement, ‘under the same conditions as an authentic instrument handed down in the Member State of enforcement’. It therefore seems that Article 25(3) may require ­something more than the simple substitution of enforcement title names if Article 20(1) is indeed to

141 See discussion of this issue in the context of France and Germany above ch 2. 142 Art 20(1) EEO in amended form, text in italics is inserted into original to replace ‘judgment’ and to preserve grammatical sense.

What Role for the Enforcement Authorities and Courts  219 be applied ‘as appropriate’, especially if the legal systems of the Member State of origin and the enforcement venue are dissimilar in their approaches to authentic instrument enforcement. In such awkward circumstances the operation of the Regulation appears to require something more from the enforcement venue if the creditor is not to be unduly advantaged (or disadvantaged) by the lottery of domestic procedures in the enforcement venue. The answer to part of the riddle is Article 11 EEO. Article 11, discussed above, provides the enforcement venue with a means of justifiably preventing an incoming EEO enforcement title from having a greater legal effect in the enforcement venue than it would have in the Member State of origin. This answer is partial as it is beyond doubt that Article 11 was not drafted to function by obliging an enforcement venue to adapt its procedures to prevent an incoming EEO enforcement title from having a lesser legal effect than it would have in the Member State of origin.143 Even if the considerable difficulty of quantifying ‘enforcement opportunity’ to allow comparison is ignored, the Regulation lacks any textual basis for an adaptation mechanism to bring the enforcement on offer in the enforcement venue up to the level of enforcement possible in the Member State of origin. Article 25(3) does not assist as its ‘as appropriate’ exhortation only applies ‘internally’ (ie to the Articles of the Regulation) and not ‘externally’ to allow the adaptation of enforcement venue procedures to raise and align them with the possibilities available in the Member State of origin. Indeed Recital 19 makes plain that the Regulation does not attempt to impose an adaptation/harmonisation obligation on the Member State of enforcement. Any such ‘adaptation’ under the existing Regulation, without re-casting, would require either unilateral legislative action by a given enforcement venue or a radical decision from the CJEU following a preliminary reference. The orthodox use of Article 11, to prevent the enforcement title receiving greater enforcement possibilities in the enforcement venue than in the Member State of origin, is however unarguably demonstrated by high level national case law144 and is consistently suggested by academic commentators.145 Article 11 provides the means by which the enforcement venue should mitigate the issue of granting excessive cross-border enforcement to an enforcement title from the Member State of origin; it confines the effect of the EEO certificate to the State of origin enforceability of the authentic instrument presented.146 The French Cour de Cassation in 2012 indicated that so intimate is the Article 11 link between the presented enforcement title and its State of origin enforceability that the enforcement venue is entitled to refuse to enforce an ostensibly valid (because unrevoked) 143 See the documents cited above concerning the origins of Art 11 EEO. 144 See French cour de cassation in s II ‘After a challenge to an “uncontested” enforcement title’, and the related decisions of the Austrian OGH and German BGH in this chapter below. 145 See J Adolphsen in W Krüger and T Rauscher (eds), Münchener Kommentar zur Zivilprozessordnung 5th edn. Also K Hilbig Art 11 rn 2–6 in vol 2 of Geimer and Schütze, Internationaler Rechtsverkehr and R Geimer in Geimer and Schutze, Europäisches Zivilverfahrensrecht 1291–92 rn 1–3. 146 Art 11 actually specifies ‘judgment’ but is to be read via Arts 24(3) and 25(3) to include other enforcement titles.

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EEO c­ ertificate (despite the lack of an Annex IV form as per Article 6(2)) if it can, ­without violating Article 21(2), learn that the effect of the debtor’s challenge in the State of origin has deprived the enforcement title of enforceability.147 In common with the suggested Article 25(3) ‘as appropriate’ exercise, Article 11 also requires that the authorities in the enforcement venue must have an opportunity to contemplate the instant enforcement request and the facts concerning the enforcement title in the course of the requested enforcement: this conclusion is however sometimes argued against by the creditor who would, after citing the Regulation’s undoubted abolition of exequatur and reduced role for the enforcement venue, suggest that such contemplation exercises in the Member State of enforcement are examples of the révision au fond forbidden by Article 21(2). Such suggestions are misguided, Article 21(2) EEO cannot be infringed by a contemplation necessary to allow the enforcement venue to apply the Regulation to enforce the instant title. The abolition of an overt exequatur stage does not stop the enforcement authority contemplating how it should effect the requested enforcement in accordance with the EEO Regulation. As the cases discussed below however indicate, practice need not necessarily follow theory. One may speculate that first level enforcement authorities, who may not be judicial in composition, if unused to such comparatively abstract interpretative tasks (and potentially incapable of seeking direct clarification from the CJEU) may be more likely to apply the exequatur-less Regulation to the creditor’s enforcement request instinctively in ‘judgment-mode’ without noticing that it concerns an authentic instrument or, if the last point should register, without addressing the issues mentioned above that are particular to this type of enforcement.148 If the first level enforcement authority is either judicial or accustomed to dealing with interpretative questions, it may, if it understands the implications of Article 11, which sadly is not always the case in the UK,149 be more likely to attempt to engage properly with Articles 11, 23, and 25(3) of the Regulation to facilitate its application and without fear of re-introducing an exequatur stage or undertaking a forbidden revision au fond150 during enforcement.

147 See Cour de cassation chambre civile 2 du 6 janvier 2012 N° de pourvoi: 10-23518. 148 In the error-strewn Lothschutz v Vogel [2014] EWHC 473 (QB) the first presentation of a German authentic instrument via the EEO Regulation was registered by the English authorities as a judgment to be enforced under the Brussels I Regulation. This initially led the debtor to believe that his former wife had independently secured, and now sought to enforce, a German judgment against him on different terms to the 2007 notarial authentic instrument that actually (despite a fatal error) was the intended basis for her enforcement request. 149 ibid. 150 See below for discussion of Lothschutz v Vogel [2014] EWHC 473 (QB) in this respect which demonstrates that the English court consistently misunderstood the operation of the EEO Regulation.

What Role for the Enforcement Authorities and Courts  221

A.  Article 23, Can the Debtor Apply to Limit or Stay Enforcement in the Enforcement Venue? Though the Regulation necessarily makes minimal provision for active measures to oppose enforcement in the enforcement venue, and indeed reduces further those limited options for authentic instruments or settlements, all debtors who have launched a qualifying challenge in what will normally be the Member State of origin may, in theory, apply via Article 23 EEO to the authorities or courts in the enforcement venue for a temporary limiting or stay of the execution sought. If an Article 23 application is granted by the enforcement venue, the enforcement is either restricted, limited or simply stops. The debtor granted an Article 23 measure in the enforcement venue can, and should, then use it to found an application to the court in the Member State of origin via Article 6(2) and Annex IV form to formally record the restrictions imposed on enforcement of the EEO title by the Member State of enforcement within the Member State of origin. Article 23 is the only explicit means by which the Regulation allows the enforcement of an otherwise enforceable enforcement title to be temporarily limited or stopped by the debtor in the enforcement venue. The purpose of Article 23 EEO is to prevent the injustice that would arise if a debtor with the ability to bring a challenge against an enforcement title, or its certification in the Member State of origin, should do so but then find his challenge is circumvented by the conclusion of cross-border EEO Regulation enforcement proceedings in the enforcement venue before his competent challenge to the judgment/enforcement title, or to the certification in the Member State of origin, could be completed.151 It may be that this danger is already notionally mitigated by a suspension of enforceability in the Member State of origin arising either automatically because of the bringing of the challenge or because of the grant of an application to this end by the debtor. If the suspension in the Member State of origin is automatic the debtor, in theory, has no need to bring an Article 23 application in the enforcement venue and may regard himself as protected there from further enforcement for the duration of the challenge by Article 11 and confirm this via an Article 6(2) application in the Member State of origin. If the suspension of enforceability in the Member State of origin results from the debtor’s application, he should also use Article 6(2) to ensure that the suspension of domestic enforceability is communicated to the enforcement venue not only by Article 11 but also by the express direction of the Member State of origin. That said, the potential for inconvenient ‘gaps’ (allowing a window in which cross-border enforcement is suddenly possible and technically irresistible) between the bringing of the Member State of origin

151 See note from Austrian delegation 4 September 2003 12222/03 JUSTCIV 147 at 6 where it is noted that a challenge to the authentic instrument in the Member State of origin should itself allow a stay via Art 23 and additionally that the enforcement potential of the authentic instrument should end if a subsequent judgment from the Member State of origin declared the authentic instrument to be void.

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challenge and, or, securing the suspension of domestic effect in the same venue, each argue for the advisability of the debtor additionally making an Article 23 application in the enforcement venue to protect his assets there from cross-border enforcement while he brings his challenge(s) in the Member State of origin. Article 23. Stay or limitation of enforcement Where the debtor has – challenged a judgment certified as a European Enforcement Order, including an application for review within the meaning of Article 19, or – applied for the rectification or withdrawal of a European Enforcement Order ­certificate in accordance with Article 10, the competent court or authority in the Member State of enforcement may, upon ­application by the debtor: (a) limit the enforcement proceedings to protective measures; or (b) make enforcement conditional on the provision of such security as it shall determine; or (c) under exceptional circumstances, stay the enforcement proceedings.

The Article 23 possibilities are similar but not identical to the interim enforcement protection provisions of the Brussels I and Ia Regulations.152 As Article 20(1) EEO has already indicated, the domestic law and procedure of the enforcement venue also apply to facilitate an Article 23 application: variations in the operation of Article 23 between different enforcement venues are therefore inevitable. For instance, must the creditor be notified and invited to take part in the debtor’s Article 23 application? This is not required by the Regulation, but domestic law is likely to require it in normal circumstances. Similarly, though the Regulation is silent on this matter it may be that the debtor is required by domestic law to offer a counter security, or something analogous to a cross-undertaking in damages, if they are to receive their requested limitation or stay.153 Variations arising from different domestic possibilities will continue unless constrained by express provisions in the Regulation or deemed by the enforcement venue court to interfere impermissibly with the operation of the Regulation. An example of the former possibility is provided by the Regulation’s express requirement that the debtor commences the Article 23 application, accordingly there is no possibility of an ex officio imposition of an Article 23 measure by a court or other enforcement authority.154 An elementary illustration of the latter possibility was provided by the refusal by a Portuguese Court of Appeal to require that an obligation enforceable as such in Italy could only be enforced in Portugal if it

152 These possibilities are reminiscent of measures contained in the Brussels Convention and Brussels I Regulation that are now found in Art 38 and Art 44 of the Brussels Ia Regulation. 153 The provision of security by the debtor in exchange for a limitation via Art 23 EEO is expressly contemplated in the Austrian Supreme Court case OGH 14.06.2012 3Ob84/12t at para 2 and generally. 154 As noted by Adolphsen (n 145) § 1084 III. Antrag nach Art 23 EG-VollstrTitelVO rn7.

What Role for the Enforcement Authorities and Courts  223 complied with the domestic Portuguese requirement of adding an extra express enforceability clause.155 A hypothetical illustration of an issue involving both types of constraint could arise if the enforcement venue should receive an application from the creditor seeking security for their costs arising from their participation in the debtor’s Article 23 application: though it is not suggested that such a costs application would itself be improper or unjust, the potential for it to become so by restricting the debtor’s ability to use Article 23 would have to be considered by the court in the enforcement venue.156

i.  Using Article 23 to Halt or Restrict Enforcement in the Enforcement Venue Before the debtor may invoke Article 23 in the enforcement venue they must first have challenged either the authentic instrument as an enforcement title itself, or, have ‘challenged’ the certification of the enforcement title in the Member State of origin by applying for the withdrawal or rectification of the EEO certificate via Article 10 EEO. Four issues concerning the use of Article 23 with authentic instruments are now set out. First, though any Article 10 challenge to the certificate must occur in the Member State of origin and though most enforcement title challenges will also be in the Member State of origin, there is no indication in the text that all enforcement title challenges must be so located. Clearly, any challenge to the instrumentum or formal validity of an authentic instrument must proceed where the authentic instrument was drawn-up, a challenge to its negotium could however be located other than in the Member State of origin in accordance with the possibilities of different locations for challenges to the negotium of an authentic instrument as discussed above. Having made this technical point, the references to Article 23 relevant challenges assume that they are commenced in the Member State of origin. Second, the use of the past tense ‘challenged’ indicates only that the challenge must have been commenced in the Member State of origin, this is indicated by the logic of such temporary suspensive provisions and by inference from the express direction after the comma in the sentence setting out the first ‘prong’ of Article 23 that a mere ‘application’ for an Article 19 review of a judgment157 suffices. What is required to demonstrate the commencement of this challenge to the satisfaction of the court in the enforcement venue may however vary quite materially. The Austrian Supreme Court has indicated that, consistent with Austrian civil procedure, the debtor must prove the commencement of their challenge in the Member 155 Tribunal da Relação Guimarães (PT) 30.03.2017 Unalex PT-228. 156 It is suggested that an enforcement venue should be cautious in agreeing to require security for the creditor’s costs from the debtor concerning an Art 23 application. 157 Though Art 19 is disapplied from authentic instruments by Art 25(3) the point still seems logical. The suggested interpretation is consistent with the second prong of Art 23 which also requires merely an application to rectify or withdraw any presented EEO certificate.

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State of origin with formal written notice from the foreign court plus an authenticated translation of the same into German;158 by contrast an English court has in one notable case been content to conclude, perhaps too generously, that its Article 23 jurisdiction was established by sight of a copy of an ante-dated letter by which the debtor had instructed their foreign lawyers to commence foreign challenge proceedings prior to the instant Article 23 application.159 Third, it has (unsurprisingly) been confirmed by the German BGH that for Article 23 to operate, the matters the debtor would challenge must still be susceptible of challenge (in the Member State of origin).160 If the domestic challenge possibilities are exhausted in the Member State of origin before the enforcement venue receives an Article 23 application, the enforcement venue has no Article 23 jurisdiction to stay or otherwise limit enforcement according to the Regulation.161 There is however English authority to suggest that in certain circumstances, eg if the EEO certificate is seriously incomplete on-its-face, an alternative domestic inherent jurisdiction to suspend and stay enforcement may be discerned.162 It is suggested in the final part of this chapter that exceptionally such gap-filling may be justified to protect the debtor’s defence rights and human rights. In passing it should be noted that it is not at all difficult for an exhaustion of domestic appeals to occur if the legal system in the Member State of origin sees no reason to refrain from ‘confirming’ unserved and undefended default judgments (against foreign nationals) in accordance with ‘service’ practices that have, in the context of foreign nationals, been deplored by the European Court of Justice since Klomps in 1981.163 A related point concerns the irrelevance, for the application of Article 23, of unsuccessful applications by the debtor for enforcement limitation or suspension in the Member State of origin. Though a competent Member State of origin challenge is required to make Article 23 available in the enforcement venue, its exercise of this Article 23 jurisdiction is not otherwise affected by unsuccessful attempts by the debtor to stay/limit proceedings in the Member State of origin. In Moreno de La Hija v Lee nothing in the Article 23 application lodged in the English enforcement venue turned on the fact that the debtor had been unsuccessful in persuading the lower Spanish civil courts to grant an interim suspension of the enforcement; the views and reasoning of the Spanish courts (including the suggestion by the Spanish Constitutional Court that Article 23 EEO was still available to

158 A photocopy of a letter from a Czech court, a six-page appeal document with hand-written amendments and an unauthenticated translation into German were not, according to the OGH, sufficient. 159 Moreno de La Hija v Lee [2018] EWHC 1374 (Ch) [2019] 1 WLR 175. In fact, the debtor’s Spanish challenge was formally commenced 17 days after the debtor indicated to Master McCloud that he had so instructed his Spanish lawyers. The reports indicate that the discrepancy was unintentional but for the 17 days in question it deprived the English court of Art 23 jurisdiction. 160 Or it is suggested in the location of a negotium challenge if it should be located other than in the Member State of origin. 161 BGH 24.04.2014 – VII ZB 28/13 at paras 9 and 33. 162 Moreno de La Hija v Lee [2018] EWHC 1374 (Ch). 163 Case 166/80 Peter Klomps v Karl Michel [1981] ECR 1593.

What Role for the Enforcement Authorities and Courts  225 the creditor in the UK) were all deemed irrelevant to the existence and exercise of the Article 23 jurisdiction by the English court. The Moreno de La Hija v Lee case also indicates that the Article 23 jurisdiction is not narrowly confined to a domestic conception of the civil court system; it applies to all available/commenced challenge procedures in what will usually be the Member State of origin and not only to the ‘direct challenge’ in an instant proceeding. Thus, even though the debtor in Moreno de La Hija v Lee quickly found that the disputed EEO judgment that supported the EEO claim was technically unchallengeable before the Spanish civil courts, he was able to appeal to the Spanish Constitutional Court and thus Article 23 jurisdiction could have been founded in the UK because of the existence of this ‘exceptional’ State of origin appeal. It is unclear if Article 23 can also be used if the challenge is commenced outwith the Member State of origin either via a preliminary reference to the CJEU or by lodging a case with a supranational adjudicator such as the European Court of Human Rights. The first question is, ‘is there a need for such an intervention?’ There is no need for an Article 23 application if the effect of the extraterritorial reference/appeal itself stays enforcement in the enforcement venue. If, by reason of the distribution of elements of the case, this does not occur, the next question is, ‘can such a proceeding before a supranational body be a competent challenge within the meaning of Article 23?’ It is suggested that clear policy reasons ­indicate that the enforcement venue should be allowed an Article 23 jurisdiction with which to consider whether the circumstances warrant the imposition of an Article 23 measure. Consideration is one thing, persuading the court to grant an Article 23 measure is another; the German BGH gave short shrift to the ­debtor’s attempt to invoke the possibility of proceeding via the Strasbourg Court (to ­challenge the lack of a public policy exception in the EEO Regulation) in the context of an attempted Article 23 application.164 Fourth, if Article 23 jurisdiction is absent, and no limiting or staying possibilities can be exploited in the Member State of origin, the only possibility for a stay or other restriction in the enforcement venue depends on the reaction of its legal system to the documentation presented for actual enforcement. It has recently been confirmed by the English High Court in Moreno de La Hija v Lee165 that the English enforcement venue possesses an inherent jurisdiction to grant a domestic stay of enforcement proceedings if the EEO certificate presented for enforcement (in this case concerning a default judgment) should be seriously deficient on its face because various vital boxes on the form supplied concerning minimum service requirements in the Member State of origin were

164 BGH 24.04.2014 – VII ZB 28/13 at para 25. 165 Such an inherent jurisdiction for the English court was confirmed by the Chancery Division of the High Court in Moreno de La Hija v Lee [2018] EWHC 1374 (Ch).

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left blank by the Spanish court.166 Though the English court was clear that it had to accept a ‘ticked’ certificate and could not use its inherent jurisdiction to stay an EEO certificate that on-its-face was valid, it correctly refused to accept a materially incomplete certificate from which it could not conclude that the Spanish court had been content that the defendant had been served or that their defence and fair trial rights had been respected. Such an inherent jurisdiction stay does however require quite unusual circumstances and may also be of short duration if the creditor secures a replacement EEO certificate complete with the required ‘ticks’.

ii.  Article 23 Procedure Article 23 is consistent with what for the debtor is the circuitous methodology of the Regulation.167 In response to an Article 23 application concerning an authentic instrument (founded on an earlier competent challenge brought by the debtor in the Member State of origin) the enforcement venue authorities must consider the nature and type of EEO title in accordance with the ‘as appropriate’ aspects of the Regulation and apply their domestic law to potentially restrict or suspend enforcement given the strengths and weaknesses of the debtor’s Article 23 application. As the Article 23 application is heard in an enforcement venue with no competence to issue interim or corrective EEO certificates in response to the debtor’s challenges in the Member State of origin, the successful applicant debtor should always then ask the court in the Member State of origin via Article 6(2) to issue an Annex IV form to confirm the temporary restriction or limitation on the enforcement of the creditor’s claim that has been imposed in the enforcement venue. It must not be forgotten that the Article 23 application is temporary rather than permanent. If the creditor’s claim survives a challenge, the Article 23 measure(s) end and enforcement can continue. If the debtor was granted an Article 23 application in the enforcement venue but then loses their Member State of origin challenge to the authentic instrument title, the creditor may either proceed to enforce via the original certificate and title, or may opt to apply to receive a new EEO certificate from the court in the Member State of origin via Article 6(3) on the Annex V form, based on what is now no longer an Article 3(1)(d) uncontested claim but is instead an Article 3(2) title with confirmed enforceability arising from the judicial challenge to the original enforcement title.168 If the victorious creditor opts to replace their Article 3(1)(d) title and Annex III certificate via Article 6(3) and Annex V with a new Article 3(2) title and certificate, which they can do from the point at which the court in the Member State of origin has handed down its

166 ibid. 167 The Brussels Ia Regulation is far more successful in this respect; exequatur is abolished but the role of the enforcement venue is preserved. 168 Adolphsen (n 145) Art 6 (3) para 24.

What Role for the Enforcement Authorities and Courts  227 decision, the enforcement proceeds via the new Article 3(2) enforceable judicial decision and not via the old Article 3(1)(d) authentic instrument.169 Therefore the original Article 23 measure will no longer affect the enforcement permitted in the enforcement venue via Article 3(2) and the new EEO certificate.170 In such circumstances, the question of whether any further Article 23 measure can be granted in the Member State of enforcement is rendered difficult as the Regulation is seemingly designed on the assumption that the hearing of the debtor’s challenge to the Article 3(1) enforcement title in the Member State of origin, assuming the outcome was not the entire dismissal of the creditor’s enforcement claim, deprives the enforcement venue of the ability to continue the original Article 23 measures, because the challenge has been decided. This is unobjectionable if the Article 3(2) title and new certificate do indeed mark the end of the debtor’s challenge possibilities. If however the debtor may appeal the decision that determined their challenge but at the same time the creditor may apply for a new certificate based on their Article 3(2) title, the question arises whether the debtor may lodge an appeal and apply for a new Article 23 measure. The possibility of the enforcement title being subject to further appeal is noted on the Annex V form which may be completed to indicate whether a further appeal is possible. It is suggested that if the debtor has lodged an appeal against the lost Article 3(1) challenge they should be entitled to make an Article 23 application despite the creditor having established a new Article 3(2) enforcement title and certificate. Were this otherwise not only would the information concerning the appeal possibility on the Annex V form be irrelevant, it would also be impossible to use Article 23 to suspend enforcement if an error on the new certificate requiring an Article 10 application should arise. Despite suggestions above concerning Article 3(2) and other issues, it must be accepted that Article 23 measures are temporary and only imposed to permit challenges in the Member State of origin prior to enforcement.171 Whether any further restrictions on enforcement can be applied in the enforcement venue is not a question to be determined via Article 23 but rather in relation to the impact of other factors upon the enforcement imperative of the Regulation. Moreno de La Hija v Lee provides a compelling illustration of an exceptional circumstance that could be reconciled with the enforcement imperative to justify a suspension of enforcement until a correctly completed EEO certificate is received.

iii.  The Interaction of Article 11 with Article 23 Assessing the nature of the enforcement title presented in the enforcement venue may be complicated by other consequences of the debtor bringing their



169 ibid. 170 ibid. 171 A

point confirmed by the decision of the BGH 24. April 2014 VII ZB 28/13 at para 18.

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challenge(s) in the Member State of origin: it will be remembered that Article 11 EEO defines the immediate enforceability of the presented enforcement title even if the EEO certificate does not disclose this with accuracy or is now out-of-date.172 Article 11 also applies to the question of enforceability in the context of the c­ hallenges that are conditions precedent for the debtor to apply via Article 23 EEO.173 If the bringing or pursuit of the debtor’s challenge itself results in temporary limitation or suspension of domestic enforceability, automatically or otherwise, in the Member State of origin, Article 11 also translates this temporary limitation or suspension of enforceability to the enforcement venue; this potentially affects the debtor’s Article 23 application. If a debtor, wishing to restrict or suspend the enforcement of an authentic instrument in the enforcement venue via Article 23, commences the necessary competent challenge in the Member State of origin and the bringing of the challenge (or another application by the debtor) has the equivalent domestic effect in the Member State of origin of suspending the domestic enforceability of the disputed title, an Article 23 application in the enforcement venue becomes notionally moot because events concerning the enforceability of the enforcement title in the Member State of origin are translated via Article 11 of the Regulation and have theoretically already deprived the EEO title of its cross-border enforceability pro tem. Assuming the potential for Article 11 to apply in this context is noticed, it may present the debtor with a difficult choice, should he: a) make no Article 23 application and trust that Article 11 will be interpreted correctly in the enforcement venue to prevent enforcement pro tem; or b) apply for a potentially unnecessary Article 23 measure to restrict or prevent an enforcement that Article 11 already indicates should not proceed in the enforcement venue? Further complications may arise if the debtor becomes involved in an appeal following their challenge in the Member State of origin. In one sense both Article 23 measures and/or any equivalent State of origin effects restricting the enforceability of the creditor’s title should cease immediately when the debtor loses their State of origin challenge. In so far as it ignores any possibility of an appeal by the debtor, this interpretation arguably conflicts with Article 23’s purpose of allowing the debtor to exploit ­available challenge opportunities (ie appeals) in what will usually be the Member State of origin. If, on the loss of a challenge, the creditor’s enforcement title is deemed to revive immediately throughout the rest of the participating EU, can the debtor exercise their domestic appeal rights in a proper fashion? Though the debtor who may bring a State of origin appeal may also be required to bring a new Article 23 172 Regrettably this effect of Art 11 was seemingly not noticed at any point by any judge or barrister in the numerous applications that culminated in Lothschutz v Vogel [2014] EWHC 473 (QB) per His Honour Judge Seymour QC. This case is discussed below in relation to Art 21(2) EEO, which the High Court also misunderstood. 173 Adolphsen (n 145) Art 23 para 2.

What Role for the Enforcement Authorities and Courts  229 application in the enforcement venue (depending on whether the State of origin restrictions on enforcement are automatic), it does not need much imagination to appreciate the possibility of inconvenient gaps to occur between applications that may allow enforcement to occur before the debtor can commence an appeal in the State of origin and apply (or re-apply) under Article 23 in the enforcement venue. Such an eventuality would also magnify the costs very considerably if the debtor is compelled to start different legal proceedings in two different venues several times during a challenge in the Member State of origin that involves one or more appeals. The best option (for the financially secure debtor) is probably to exploit Regulation procedures by making the Article 23 application in the enforcement venue and then speedily exploit Article 6(2) in the Member State of origin to insist on an Annex IV form to record the restrictions imposed on enforcement; possession of this Regulation documentation should prevent enforcement and may, in the event of an unsuccessful State of origin challenge, slow the enforcement authorities (despite Article 11) just enough to allow the debtor to appeal in the Member State of origin and then to seek a continuation of the restriction of the creditor’s enforcement title while it is challenged on appeal.174

iv.  Article 23 and Authentic Instruments The EEO Regulation provides a subtly different form of enforcement procedure for each of its three enforcement titles: this is due to its disapplication of parts of its content for non-judgment titles and because the application of specified parts of the Regulation is to proceed ‘as appropriate’ for the two non-judgment enforcement titles. If the enforcement title is an authentic instrument (or a settlement) parts of Chapter IV (eg Article 21(1) and Article 22) are disapplied and what remains is to be applied to the enforcement ‘as appropriate’.175 It must be emphasised that this ‘as appropriate’ application is directed to the nominated Regulation provisions rather than directly at domestic procedural rules, despite their proximity (via Article 20(1)) to the enforcement procedures as governed by the enforcement venue’s domestic law. It is suggested that, just as for judgments, the enforcement venue must construe Article 23 via Article 25(3) to provide the specified Article 23 possibilities ‘as appropriate’ for an authentic instrument. For an Article 23 application concerning an authentic instrument, it seems probable that an enforcement venue will first look to its domestic law and then evaluate whether this suffices to accommodate the possibilities mentioned in Article 23(a–c) for a Regulation authentic instrument: if the domestic law suffices, there is probably no need to carry the exercise any further, if it does not suffice the ‘as appropriate’ exercise has revealed a defect



174 ibid. 175 See

Art 25(3) and Art 24(3) respectively.

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in the enforcement venue’s Regulation compliance with Article 23, albeit one that can in an immediate sense probably be remedied by adopting and adapting the domestic procedures for judgments to similarly restrict the enforcement of the instant authentic instrument.176 The three different applications in Article 23(a–c) have one of two effects: Article 23(a) and (b) each allow aspects of the creditor’s enforcement to proceed in the enforcement venue, subject to the limitations they impose for the duration of the debtor’s challenge. In contrast, the Article 23(c) stay stops all enforcement by the creditor in the enforcement venue (according to the terms on which it is granted)177 while the debtor’s challenge(s) continue in the Member State of origin. It is clear from Article 20(1) and the drafting of Article 23 that the decision whether to limit or stay enforcement is left to whatever discretion the legal system in the enforcement venue affords to its courts on such matters. Whether this discretion is fettered or free, its exercise should still be mediated by Article 23’s purpose of preventing the debtor from being deprived of their domestic challenge possibilities by facing cross-border enforcement before their competent challenges can be concluded. How often such mediation will occur is debateable; the Regulation directs that domestic law is applicable and hence the enforcement venue, assuming it has correctly understood the operation of the EEO Regulation in the first place,178 is most likely to attempt to comply by applying its own law to the question of whether the enforcement of a foreign enforcement title should be stayed or otherwise restricted while that title (or its certification) is challenged by the debtor in the original foreign venue. A 2012 case from the Austrian Supreme Court despite concerning an EEO judgment indicates some consequences of the application of the law of the forum to Article 23 applications. The OGH held, in accordance with the quite strict Austrian limitation and stay procedures, that an Article 23 application was correctly rejected over two appeals as the debtor had never properly and formally demonstrated to either the first appeal court or to the Supreme Court itself that the challenge was sufficiently strong, ie that it had a reasonable prospect of success. The OGH held also that the debtor had failed to demonstrate that the requested restrictions on actual enforcement were required (in accordance with Austrian law) to protect her against what Austrian law understood to be irreparable harm. The Supreme Court noted that if there is not a self-evident need for the restrictions requested, the need must be proven before any restrictions will be allowed; further it noted the significant point that as only money claims are possible under

176 Recital 19 does not remove or mitigate the general obligation of Regulation compliance in the Member State and Art 23 prevails over domestic civil procedure as per Art 20(1). 177 There seems to be nothing to prevent an enforcement venue staying only a part of the requested enforcement. 178 In Lothschutz v Vogel [2014] EWHC 473 (QB), discussed below, the English High Court demonstrated repeatedly that it did not understand the Regulation.

What Role for the Enforcement Authorities and Courts  231 the EEO Regulation, a sufficiently solvent creditor may so mitigate the risk of the debtor not being re-paid if their challenge succeeds as to remove a principal reason for granting an Article 23(c) stay. The Court indicated that the debtor must demonstrate to the court, in compelling and in concrete terms appropriate to the requested Article 23 measure, that unrestricted immediate enforcement would cause her irreparable damage.179 As the applicant, who appears to have been chronically lackadaisical,180 had never done this, the Austrian Supreme Court confirmed the rejection of her Article 23 application by the lower appeal court subject to minor legal corrections. In the proceedings that culminated in Moreno de La Hija v Lee the Chancery Division of English High Court, which as they are relevant to both the English approach to Article 23 and to Article 21(2) EEO are examined now in some detail, a stay was first granted (in technical error) under Article 23 by Master McCloud in 2014 in connection with a ‘without notice’ application by the debtor, the actor Sir Christopher Lee. Sir Christopher requested that English enforcement proceedings connected with an earlier and curious Spanish claim181 brought against him and others but seemingly only presented for enforcement against him (and after 2015 against his estate) to the effect that he was somehow182 liable to compensate the claimant for losses arising from the alleged non-performance of a contract to which the actor was not party that, the artist claimed, had resulted from misuse of his copyright in artwork he supplied for the DVD release of a film called Jinnah in which Sir Christopher had starred.183 The claimant initially sought some €710,000 from the debtors for the use of artwork on the DVD. The claim, which had in Spain morphed by stages from an unserved and undefended 2007 judgment by default184 to a confirmed title by March 2009 that by late 2009

179 OGH 14.06.2012 3Ob84/12t at para 1 and 3 of the decision. 180 Somewhat oddly the debtor did not provide any authentic or authenticated proof that he had lodged the challenge and nor did he advance any exceptional circumstances. 181 Some light is cast on the claimant’s Spanish claim and proceedings in features in El Pais, see reports from 22 March 2010, https://elpais.com/cultura/2010/03/22/actualidad/1269212404_850215.html and then after the issue of the Spanish EEO on 26 January 2012, https://elpais.com/cultura/2012/01/26/ actualidad/1327579708_789581.html. The first report includes a surprising quote attributed to the claimant, ‘“Hasta la fecha no he podido hablar personalmente sobre el caso con Mr Lee, por eso no le hago responsable (hasta que se demuestre lo contrario) de esta situación”, ha señalado Moreno.’ Google translate suggests, ‘“To date I have not been able to speak personally about the case with Mr Lee, so I do not hold him responsible (until proven otherwise) of this situation”, said Moreno.’ 182 No contractual relationship between the creditor and debtor and no indication of how one was obligated to the other emerges from the English law reports. In the 2010 El Pais newspaper report the artist claimed that the actor was amongst those who had ‘authorised’ his appointment to supply the artwork. It is unclear how this ‘authorisation’ can be equated with assuming legal liability for a subsequent breach of contract to pay royalties or to liability for a copyright infringement. 183 The claim also named Sir Christopher’s son-in-law (with whom the artist claimed to have signed a contract) a website associated with Sir Christopher (allegedly run by the same son-in-law), and what appears to be a production company. 184 ‘Served’ – in default of any information possessed or discoverable by the court of the address of Christopher Lee – by being affixed to the notice board of the Spanish court of origin.

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was declared finally enforceable and became an EEO on 13 June 2011, is notable for never having been served on the defendant either in person or at an address at which he was resident: though the Spanish civil courts appear to have been sanguine about this, it is less clear that the CJEU would have approved.185 On 22 January 2014 Sir Christopher was finally officially186 notified of the claim by the claimant’s lawyer in England by a letter that informed him of the EEO and demanded payment of €923,000187 within 14 days. A request by the debtor for 28 days in which to instruct lawyers was refused. Shortly afterwards the debtor applied to the English court for an Article 23 stay of the EEO enforcement proceedings. The commencement of the Spanish challenge proceedings necessary to allow the English court to consider the grant of the Article 23 stay was seemingly demonstrated to Master McCloud by the debtor producing a letter he had sent to his Spanish lawyers instructing them to challenge the claim in Spain. The requested stay was granted in February 2014. As indicated above, there was in fact a 17-day gap between the instruction in the letter and the commencement of the first of three different tranches of challenges that the debtor, and latterly his estate, brought and then appealed in Spain.188 The debtor died in 2015 and in April 2017 the creditor applied to Master Clark to lift the 2014 stay. Master Clark did remove the Article 23 stay for lack of competent jurisdiction at the date at which it was granted but replaced it, without interruption, with an inherent jurisdiction stay granted by reason of the non-completion of questions 11–13 of the EEO certificate by the Spanish court.

185 Though the Spanish courts appear to have been sanguine about this matter, it is not clear that the CJEU would have approved. For a case in which the CJEU were reluctant to allow the EEO to be in absentia fashion without safeguards for the debtor see Case C-300/14 Imtech Marine Belgium NV v Radio Hellenic SA ECLI:EU:C:2015:825 at para 42, see also Case C-289/17 Collect Inkasso OU v Aint 2018 EU:C:2018 at para 39 where the CJEU refused to allow any of the five judgments delivered without informing the debtors of the address of the court (or other details necessary to lodge an appeal) to be certified as an EEO. 186 The case was featured (very inaccurately) in the English press in 2010 (possibly based on not quite understood Spanish newspaper reports) without securing any comment from Sir Christopher but recording that none of the defendants had appeared in the Spanish proceedings: www.telegraph. co.uk/news/worldnews/northamerica/usa/7498728/Sir-Christopher-Lee-loses-640000-royalty-battle. html and http://news.bbc.co.uk/1/hi/entertainment/8582611.stm. 187 The creditor having previously applied in Spain to rectify the initial EEO certificate to correct a mis-spelling of the ‘debtor’s’ middle name and to add in an extra €213,000 in unexplained ‘enforcement costs’. 188 The debtor’s Spanish challenges were extensive and are described in paras 23–30 of De La Hija v Lee [2017] EWHC 634 (Ch) (03 April 2017). They may be summarised as challenges to: a) set aside the proceedings for bad service (rejected by the Spanish court as ‘service’ was in accordance with local Spanish rules); b) set aside the Spanish order allowing enforcement of the proceedings (rejected by local Spanish court but then appealed to Constitutional Court which accepted the case but refused a domestic stay for lack of demonstration by the debtor of a risk of irreparable harm); and, c) to withdraw the EEO certificate via Art 10 EEO on the basis that (i) the title was not enforceable in Spain and/or (ii) that the service by public notice violated the Chapter III minimum standards of the EEO Regulation (again rejected by local Spanish court and appealed to Constitutional Court which accepted this case, consolidated it with the other application still refusing a domestic stay of for the same lack of demonstration of irreparable harm. The two Constitutional Court appeals remained pending at the time of the English hearings.

What Role for the Enforcement Authorities and Courts  233 In the closing stages of her judgment Master Clark, contemplating a possible appeal by the creditor, speculated on the circumstance that she had been wrong that Article 23 jurisdiction was lacking at the point at which Master McCloud had granted the stay: her resulting speculation included a useful clarification of what is meant by the ‘exceptional circumstances’ that are referred to in Article 23(c). The Master accepted that a mere challenge to a judgment would not suffice and that other factors concerning the challenge were required to meet the exceptional circumstances threshold required for the grant of a stay. In this case the matters of fact assessed at the time of the original stay application in 2014 and the evidence adduced at the 2017 hearing were both relevant. Master Clark summarised the relevant original facts as, ‘the absence of any merits of the Spanish claim, the failure to serve the proceedings or the judgment, and the failure to comply with the minimum procedural requirements of the regulation’; concerning the 2017 evidence Master Clark referred to evidence that the creditor was wholly impecunious (qualifying for fee remission, and instructing his legal representatives under a conditional fee agreement), so that if enforcement is not stayed and the Spanish challenges succeed, there must be a serious risk that the defendant would not recover the sums paid to him, or any costs in seeking recovery.189

It is suggested that Master Clark’s reasoning can be mapped onto an Article 23(c) application concerning an authentic instrument such that though a State of origin challenge to the authentic instrument itself or to its EEO certification is required to found the application, something more is required to justify the exceptional use of the option to stay in the enforcement venue. It is suggested that this ‘something more’ could relate either to the circumstances leading to the drawing-up of the authentic instrument (particularly if that provides the basis for the challenge in the Member State of origin) and/or to evidence concerning the circumstances subsequent to its drawing-up that concern the instant enforcement request. These suggestions are made with full knowledge of the prohibition by Article 21(2) of a révision au fond by the enforcement venue. This application of Article 23 does not however involve a breach of Article 21(2) as no révision au fond is involved in conducting a process stipulated by the Regulation in the enforcement venue. Master Clark was however confronted by objections from the creditor that by evaluating the facts surrounding the enforcement application and the enforcement title to apply Article 23 she thereby breached Article 21(2) and had conducted a prohibited review (révision au fond). This objection was convincingly rejected by Master Clark who noted that Article 21(2) forbade a ‘review’ of the substance of the judgment or certificate by the enforcement venue and then distinguished the meaning of ‘review’ in the context of the EEO Regulation as a whole before observing, The expression [review] is not properly to be construed broadly as referring to any process which involves consideration of the matters relied upon by the defendant in this case. It follows that in my judgment the Master would have been entitled to take

189 At

para 69.

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into account the prospects of success of the Spanish challenges; and if she concluded that they were sufficiently high, to treat them as exceptional circumstances, had she had jurisdiction to do so under art 23.190

The same argument that Article 21(2) prevented the enforcement venue from considering such issues in an Article 23 application was also rejected, with some force, by David Halpern QC sitting as a Deputy High Court judge, Article 23(1)(c) provides that a stay is to be granted only in ‘exceptional circumstances’. This is a high hurdle for the debtor to surmount. The most relevant factor in many cases is likely to be the merits of the challenge in the court of origin. It would be surprising if the court of enforcement were not permitted to take this into account. In my judgment, article 21(2) does not prevent the court of enforcement from doing so …. the prohibition of judicial review by the court of enforcement does not prevent that court from looking at the merits in order to see whether the challenge which is underway in the court of origin looks likely to succeed. In doing so, the court of enforcement is not deciding that question, but merely considering whether to grant a stay whilst that question is litigated in the court of origin.191

Drawing on the case law it seems that the debtor who would apply via Article 23 would be well-advised to ensure that their state of origin challenge is represented to the enforcement venue via official evidence of its commencement and thereafter to present their case for a temporary limitation on enforcement with reference to the need for and prospects of their actively pursued competent challenge in the Member State of origin. If the debtor requests a stay of proceedings via Article 23(c) they must also address the need for ‘exceptional circumstances’ to justify its grant. According to Article 25(3)’s direction to apply Article 23 ‘as appropriate’ to authentic instruments, the factors relevant to an Article 23 stay for an authentic instrument must be considered. There seem to be no reasons to treat the staying of the enforcement of an authentic instrument more strictly than the staying of a judgment, indeed, a case could be made for a more lenient approach for authentic instruments as they lack any adjudicatory finality on the issues that determine the existence of the obligations that are relevant to the enforcement possible under the EEO Regulation and, in the forms permitted by the Regulation definition, they represent a more heterogenous legal institution than ‘judgments’ within EU legal systems.

v.  The Article 21(2) Prohibition on a Révision au Fond and its Scope in the Enforcement Venue The creditor’s suggestion in De La Hija v Lee and again on appeal in Moreno de la Hija v Lee, that Article 21(2) prevented the enforcement venue from considering circumstances surrounding the enforcement, was also advanced to suggest that the



190 De

La Hija v Lee [2017] EWHC 634 (Ch) at para 60. de la Hija v Lee [2018] EWHC 1374 (Ch) at para 60, Per David Halpern QC.

191 Moreno

What Role for the Enforcement Authorities and Courts  235 enforcement venue was prevented from even noticing that the Spanish court had not completed questions 11–13 of the EEO certificate concerning proper service, information provision and curing of defects. In this respect, it cannot be said that the Spanish creditor was acting unusually, indeed if an enforcement venue indicates a willingness to do anything but to blindly enforce the creditor’s EEO Regulation claim it is probable that they will attempt to cite Article 21(2) to suggest that the prohibition on a révision au fond deprives the enforcement authority of the competence to do anything other than to enforce. As the Article 21(2) prohibition is frequently cited by the creditor, it is now considered more broadly than just in relation to Article 23. It is first necessary to distinguish the treatment of Article 21(2) EEO offered now from the treatment of the equivalent prohibition of révision au fond in Brussels Convention 1968 and subsequent related conventions and regulations in the last chapter: there it is argued that the prohibition on a révision au fond for judgments in the context of the Brussels Convention, Brussels I Regulation, Lugano Conventions and Brussels Ia Regulation need not and should not be extended to include authentic instruments. Though the reasoning that informed this argument also could have been applied to the EEO Regulation, the evidence of legislative intent concerning the EEO Regulation is unambiguous that this was not ever intended. The révision au fond prohibition in Article 21(2) must therefore be assumed to apply to each enforcement title in the EEO Regulation. Whether the ‘as appropriate’ exhortation in Article 25(3) EEO may give rise to more subtle differences in its application is, pending potential clarification from the CJEU, a matter for the authorities in the enforcement venue; it seems clear however that such principled variation could be permitted by the text of the Regulation for authentic instruments. The prohibition on a révision au fond is commonly encountered in EU private international law Regulations. It derives from the law concerning cross-border judgments (and bilateral treaties relating thereunto) and represents an important safeguard for the free-circulation of ‘judgments’ that in EU Regulations need not be res Judicata prior to circulating between Member States. Though the prohibition on the révision au fond of judgments is necessary for the successful circulation of judgments via EU private international law, it can be misrepresented by the creditor, or be misunderstood by the enforcement venue, to indicate that compliance with the Regulation requires it to respond only by strictly effecting the recognition or enforcement of the incoming enforcement title: if the enforcement venue construes the Article 21(2) prohibition so widely it may paralyse its ability to respond to any objection to enforcement raised by the debtor and conclude that its only response is a mechanical enforcement of the creditor’s presented title. For a creditor-led exequatur-free Regulation such as the EEO Regulation such conclusions would be particularly problematic as they would prejudice the interests of both the debtor and the enforcement venue and additionally lead to a misapplication of the Regulation in the enforcement venue. How, for example,

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could the enforcement venue ensure that the materials it receives in connection with Article 20(2) are compliant with the temporal and subject matter scope of the Regulation without the minimal ‘review’ that this requires? How could Article 11 be considered or applied if the enforcement venue cannot consider and compare the enforcement directed by the Member State of origin, as indicated on the EEO certificate, with that which is possible now in the enforcement venue? How can domestic procedural law be applied to the enforcement, as per Article 20(1), if the enforcement venue may not consider the enforcement title? Similarly, how can the Article 25(3) ‘as appropriate’ exercise be undertaken? The difficulties posed for the enforcement court by an overly wide construction of Article 21(2) in the context of the discretionary aspects of Article 23 have already been set out. With respect, the solution to these ‘difficulties’ is not to misunderstand the prohibition on a révision au fond applied by Article 21(2). How serious is the risk of such self-induced paralysis in the enforcement venue? Even for judgments this is a difficult question to answer. In the cases considered thus far, the courts in the enforcement venue have mostly demonstrated that they can instinctively distinguish between Article 21(2)’s impermissible révision au fond and a permissible review of data or evidence required by the Regulation itself or required to effect the requested enforcement via domestic procedures. Thus the Portuguese Court of Appeal of Guimarães applied Article 21(2) to prevent the debtor from raising an objection to the enforcement in Portugal of financial aspects of an Italian injunction that he could and should have raised in the earlier Italian proceedings; it however clarified that, via Article 20(1), Portuguese civil procedure law did however apply to the enforcement and thus provided the debtor with all of its possibilities concerning the actual enforcement sought, including the possibility for an assessment of the relevance of events occurring after the decision represented by the enforcement title and its EEO certificate.192 This case and the others considered above however represent a narrow subsub-set of the enforcement requests received by a given Member State; not only has the enforcement been opposed by a debtor with sufficient means to litigate in the enforcement venue, this litigation has then been reported. A truly comprehensive assessment of the potential of the issue would require an assessment of the unreported cases and of the probability that debtors are discouraged by the pro-creditor bias of the Regulation from bringing such challenges. It is even more difficult to establish how an over-wide interpretation of Article 21(2) might affect the enforcement of notarial authentic instruments. It seems probable that, given the heterogeneity of authentic instruments across EU legal systems, the answer will vary from venue to venue in accordance with its domestic enforcement possibilities. An enforcement venue used to domestically enforceable notarial authentic instruments and according them the highest levels of probative and executory 192 Tribunal da Relação Guimarães (PT) 30.03.2017 Unalex PT-228. None of this is controversial. There is no injury to the Regulation if the court asked to enforce a debt will allow the debtor to object that they have already paid and can demonstrate this by admissible proof.

What Role for the Enforcement Authorities and Courts  237 force will naturally expect such enforceability, within the parameters of its civil procedure law; if it receives a foreign enforcement title as an EEO from a Member State of origin that takes a less exalted view of notarial authentic instruments there may be a risk of it conferring an unreasonable extra benefit on the creditor were it not for the potential for certain forms of adjustment via Article 11 to reflect any discrepancies between the Member State of origin and the enforcement venue and to correct discrepancies between the original enforcement documents and that which is now presented for enforcement in the instant venue.193 Whether the potential will in fact be so applied is however another matter. What though of an enforcement venue not used to enforceable notarial authentic instruments? Somewhat astonishingly, there is a reported case on this matter from exactly such a UK jurisdiction; Lothschutz v Vogel [2014]. This English High Court case, apart from also concerning maintenance, has clear parallels to the 2012 decision of the French Cour de Cassation (discussed above) albeit with a reversal of certain issues and outcomes: in the French case the enforcement title was withdrawn but the EEO certificate remained notionally extant (a nuisance that the French court scotched via an application of Article 11 EEO); in Lothschutz v Vogel the EEO certificate was withdrawn for misrepresenting the legal effects of a valid notarial authentic instrument but the enforcement venue reacted to this by ‘crowning’ an earlier series of errors by the English enforcement authorities with such an extreme form of self-induced révision au fond paralysis that it also deduced that the EEO Regulation deprived it of the jurisdiction to discharge English judicial orders or vary English costs orders resulting from what was then known to have been an erroneous German EEO certificate that had since been withdrawn.194 According to 2009 and 2011 EEO certificates the German debtor (now based in the UK) owed recurring enforceable maintenance obligations to his German former wife and to his children (still located in Germany). These recurring obligations were alleged to be based on a notarial authentic instrument drawn-up in Germany in 2007. The creditor wished to enforce the authentic instrument against the debtor, now a banker in London, in England using the EEO Regulation. She sought a certificate from the German law firm in which the notary who had drawnup the 2007 authentic instrument worked; as he was on holiday, the certificate was drafted by his officially appointed representative, a Rechtsanwalt195 working at that practice. Unfortunately, the Rechtsanwalt innocently mis-transcribed the legal effects of the authentic instrument onto the EEO certificate and misrepresented that it contained legally enforceable obligations that the debtor must on a recurring basis make payments to his former wife and to his children. The seriousness of this 193 See discussion in s II of Cour de cassation chambre civile 2 du 6 janvier 2012 N° de pourvoi: 10-23518. 194 See Lothschutz v Vogel [2014] EWHC 473 (QB) paras 3–7 for a summary of the prior litigation. 195 A Rechtsanwalt is a qualified German lawyer essentially equivalent with an English solicitor with rights of audience.

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error was magnified by Article 20(2)(c) EEO which only requires a transcription/ translation of the EEO certificate itself and, very unwisely, excludes the presented enforcement title from this possibility.196 The error by the Rechtsanwalt was not noticed when a second German EEO certificate, presumably based all too closely on the first, was issued in 2011 and only in late 2012 did the original German notary spot the problem;197 he responded (rightly) with alacrity by writing to alert the debtor of the error on 31 October 2012 and subsequently the notary arranged the withdrawal of the EEO certificates in Germany. After the withdrawal of the certificates the debtor, who had opposed, sometimes in person, the enforcement with persistence but without much success, applied to the High Court in March 2013 for an Article 23 stay of enforcement of the EEO registered against him in England in September 2009 and also for the staying of the associated English orders made by Master Roberts in 2009 and 2011 that had quantified his presumed liability to pay recurring sums of maintenance to his former wife and children. The Debtor’s March 2013 Article 23 application was transferred to a county court and occurred against a background of applications concerning earlier costs orders associated with the English legal proceedings occurring prior to the discovery of the error on the EEO certificates; the Article 23 application was granted at an unreported hearing of the Milton Keynes County Court on 9 April at which the District Judge remitted the other issues raised by the case back to the High Court. Concerning the Article 23 application, it is unclear from the available reports on what basis it was granted by the English County Court and it is unclear why it was considered as ‘ongoing’ by the High Court. The crucial point is that the debtor is required to have already brought a challenge in the Member State of origin to provide the enforcement venue with jurisdiction to apply Article 23 EEO. As the 2007 authentic instrument was never impugned, only mis-described on the EEO certificate, the only available basis for Article 23 jurisdiction would appear to arise from the debtor challenging the EEO certificate in Germany via Article 10 EEO. No such Article 10 application by the debtor is mentioned by the English court which, had such a thing occurred, is odd given that the assumed need for the debtor to pursue such a course of action is discussed by that court (albeit in a different context). Further doubt as to the existence of any such Article 10 application must arise from the fact that according to HHJ Seymour QC, the debtor applied for the stay after the German notary had withdrawn the EEO certificate that incorrectly

196 This aspect of the Regulation has been criticised by inter alios C Nourissat, ‘L’acte authentique saisi par le droit européen’ in, Les Petites affiches n°173 of 29 August 2007 August 2007, 42–48. 197 As the German notary was seemingly in postal communication with the debtor (who was now resident and employed in the UK) it may be conjectured that the debtor had contacted the notary; colour is lent to this by the notary referring to the certified true copies he also enclosed of the 2007 authentic instrument and 2009 EEO certificate (quoted in English translation at para 7 of Lothschutz v Vogel [2014] EWHC 473 (QB)).

What Role for the Enforcement Authorities and Courts  239 described the 2007 authentic instrument.198 It is difficult to imagine any court allowing an Article 10 challenge to withdraw an EEO certificate that has already been withdrawn. What then was the challenge that the debtor brought to allow the English court to stay via Article 23 EEO? If, as seems probable, there was no Article 10 challenge by the debtor prior to the withdrawal of the EEO certificate by the actions of the German notary, there was no Regulation basis to impose an Article 23 measure for the English court. If there was a competent challenge, this raises another difficulty as it could only endure pro tem while the challenge was capable of being pursued: as the English stay was granted after the withdrawal of the EEO certificate it seems that the only apparent, if unconscious, basis for the stay (which the High Court appeared to believe could continue indefinitely) must, as in the case of Moreno de La Hija v Lee, have been the inherent jurisdiction of the English court. The unhappy irony of this conclusion lies in the subsequent reaction of the High Court to the debtor’s contention that, given the withdrawal of what the German notary had described (in translation) as a ‘demonstrably incorrect’ German EEO certificate, he was therefore entitled to require the setting aside of the orders made by the Master in 2009 and 2011 (that had quantified a recurring liability he did not in fact have, to permit the garnishment of his earnings) and was also entitled to the discharge of various costs orders imposed on him as he had sought to dispute the requested enforcement of what the English authorities had first thought was a judgment requiring registration under the Brussels I Regulation rules199 before correctly identifying the enforcement title as an authentic instrument that was presented for enforcement via the EEO Regulation. In response to the superficially reasonable suggestions of the debtor’s lawyer concerning the consequences of the withdrawal of the EEO certificate for material error, HHJ Seymour QC made the surprising observation that this suggested possibility was not, in the present circumstances, ‘well founded’ given his understanding of Article 21(2) and the operation of the EEO Regulation which he proceeded to try to explain.200 The judge began with the uncontroversial point that under the Regulation an enforcement venue in receipt of an apparently valid EEO certificate (and presumably the Article 20(2) documentary particulars) has no option, absent an Article 23 application, other than to permit enforcement to proceed. Though correct in so far as it goes, this statement would have been more accurate had it concluded with, ‘in accordance with the Regulation’, to indicate an awareness of the potential for the enforcement venue to consider and apply, inter alia, Article 11201 and to indicate that via Article 20(1) the procedures of enforcement not provided by the Regulation are derived necessarily from domestic law.202 Unfortunately, the judge 198 ibid, para 8. 199 See Vogel v Lothschutz [2012] EWHC 3411 (QB) at paras 9 and 11 per Mr Justice Roderick Evans. 200 Lothschutz v Vogel [2014] EWHC 473 (QB) para 21. 201 For discussion of Art 11 EEO see above s II.B.vii.a. 202 There are no references to Art 11, which was obviously material, anywhere in the 2014 case; presumably it was not cited to the judge.

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had interpreted Article 21(2) in such an all-encompassing manner (particularly given the withdrawal of the erroneous EEO Certificate by the German notary) as to conclude that it prevented him from reviewing earlier enforcement determinations and costs orders by English courts that were now known to have been based on misrepresentations of fact and law as contained in a ‘demonstrably incorrect’ EEO certificate that the creditor had used successively to recover recurring payments that the actual title did not entitle her to receive. This reasoning is mystifying, not merely in terms of the Regulation (the recurring payments were not present in the authentic instrument to be agreed to and hence did not amount to an Article 4(2) claim capable of enforcement under the Regulation) but also with regard to the events in the enforcement venue prior to the discovery of the errors in the EEO certificate; other English courts (including the Court of Appeal) had not treated the terms of what was then assumed (correctly in procedural terms) to be an accurate EEO certificate with such over-reverence and indeed had entertained appeals in which issues arising from the English orders facilitating enforcement (eg interest rates) had been varied and costs orders had been discussed.203 If this was possible when the EEO certificate was seemingly extant and properly assumed to be correct, why did Article 21(2) make it impossible after the same EEO certificate had been withdrawn for material inaccuracy?204 Article 21(2) forbids the enforcement venue from re-examining the substance of any EEO enforcement title or its certification as an EEO during enforcement proceedings. This is done to facilitate the cross-border enforcement of valid enforcement titles by avoiding re-hearings and other procedurally improper ­stratagems designed to frustrate an enforcement that should proceed because it must be assumed to be valid in and by the enforcement venue. In this context ­validity is assumed by the enforcement venue to follow from noting due compliance by authorities in the Member State of origin with the requirements specified by the Regulation, eg submitting a completed EEO certificate concerning an included enforcement title as per Article 20(2) EEO. It cannot however follow that any and every examination by the enforcement venue relating to the ­enforcement title or to the EEO certificate is therefore a forbidden révision au fond. Still less can there be any reason to characterise applications by a debtor that relate to an EEO certificate that has already been withdrawn as triggering the Article 21(2) prohibition: Article 11 already makes plain that on its own a certificate has no enforcement effect in the enforcement venue. Leaving on one side that which a court or 203 The latitude exercised by the English courts in relation to the creditor’s claim for recurring payments prior to the notary highlighting the error was considerable. Not only was the English court willing to accept the creditor apparently generously waiving part of her assumed financial entitlement, it was also willing to re-purpose and indeed raise the payments to the children beyond the sum said to be specified by the EEO certificate and 2007 authentic instrument: see Vogel v Lothschutz [2013] EWCA Civ 664 per Floyd LJ at paras 9–12. With respect, such actions do not seem consistent with the explanation of Art 21(2) advanced by HHJ Seymour QC in 2014. 204 The re-examination of earlier costs orders seems advisable if the enforcement sought and extracted was based on a title that did not allow such enforcement.

What Role for the Enforcement Authorities and Courts  241 enforcement authority can, and indeed must, examine in the course of enforcing a given EEO enforcement title and certificate to ensure compliance with Regulation imposed obligations (eg that the enforcement remains within the Regulation’s subject matter scope and temporal scope;205 and, that the documents required by Article 20(2) are provided) there is certainly no forbidden révision au fond of the enforcement title or of the EEO certificate if the enforcement venue reviews its own enforcement orders; were this otherwise how could an appeal function and how could garnishment proceedings accommodate applications resulting from subsequent changes in the debtor’s circumstances, eg when they loses their job or win €100M on a lottery? Article 21(2) applies to the EEO c­ ertificate and enforcement title while they are each assumed to be valid and does so for the purposes of applying the Regulation to allow enforcement without re-hearing the substance of the enforcement title or its certification in the enforcement venue, it does not apply to the subsequent domestic orders of that enforcement venue that Article 20(1) makes plain are subject to the domestic law of the enforcement venue.206 Unfortunately for the debtor, the judge’s erroneous interpretation of Article 21(2) appears to have led him from the correct, if hypothetical, conclusion that under the Regulation he lacked the power to set aside an EEO certificate, to an incorrect conclusion that after the withdrawal of the EEO certificate he also lacked the power to set aside the English orders of 2009 and 2011 or to discharge the English costs orders associated with the debtor’s earlier attempts to resist these orders.207 The judge concluded that the question of the entitlement of the debtor to be returned to the position in which he would have been in had the EEO certificate never been issued, was ‘outwith the jurisdiction of this court’,208 seemingly because he believed that these issues had to proceed, despite the undisputed fact of the earlier withdrawal of the certificate, via Article 10 of the Regulation and ‘because’ Article 10(2) applied German law (as the law of the Member State of origin) to such rectification or withdrawal applications, the debtor’s applications concerning these issues also, according to the judge, had to be made within the German venue. With respect, this reasoning is wrong. It is not possible to apply to withdraw an EEO certificate that has already been withdrawn and thus no such Article 10 application could be made by the debtor in Germany; even if the application was still technically possible, how could a German court be competent under the Regulation to adjudicate on the debtor’s entitlement to set aside the 2009 and 2011 orders made by English judicial officials and how could it discharge costs orders that the English court had imposed?209 205 Ironically the court did consider the temporal application of the EEO Regulation, at para 25, to correctly rule out the application of Regulation 4/2009. 206 Tribunal da Relação Guimarães (PT) 30.03.2017 Unalex PT-228. None of this is controversial. There is no injury to the Regulation if the court asked to enforce a debt allows the debtor to object that they have already paid and can demonstrate this by admissible proof. 207 See Lothschutz v Vogel [2014] EWHC 473 (QB) para 22. 208 ibid. 209 Such matters in this form, which is distinct from enforcing an award of costs, are not ‘civil and commercial’ and could not be recovered via the Brussels Ia Regulation or its related provisions. It is not even clear that such matters fall within the orthodox conception of private international law.

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Article 21(2) was always irrelevant to the issue of how an English court responded to the debtor’s applications concerning English orders and costs determinations merely associated with the enforcement of the EEO enforcement title. Article 20(1) applies English law to the enforcement and for obvious reasons that law does not need the protection that Article 21(2) provides to a foreign enforcement title and certificate when presented for enforcement. The prior withdrawal of the certificate by the German notary left only the English venue to determine the fate of the English orders and costs awards arising from the debtor’s attempts to challenge the enforcement of a foreign title materially misrepresented by the EEO certificates successively presented by the creditor. In light however of the judge’s erroneous conclusions, and because of the inexplicably (from the published law reports) dim view he appears to have formed of the debtor’s attempts to overturn ‘final’ costs orders incurred while attempting to challenge a debt obligation that he did not in fact possess, the debtor’s applications were refused.

IV.  Procedural Disadvantage of the Debtor and Issues Related to the Regulation’s Lack of Public Policy Control This part considers two issues resulting from the reduced role accorded to the enforcement venue by the Regulation: first, the procedural disadvantage of the debtor is set out and connected to the concerns raised by the 2012 RAND Report; second, the omission of an overt public policy control from the Regulation. Concerning the second point, which Dicey Morris and Collins describe using terms such as ‘perplexing’ and ‘unconvincing’,210 the different means by which exceptional public policy control may be achieved are discussed and the circumstances in which an enforcement venue may legitimately apply such a public policy control are set out.

A.  The Systemic Procedural Disadvantage of the Authentic Instrument Debtor by the Regulation The discussions above concerning the origins and drafting of the Regulation make plain that it was designed to advantage a narrow class of judgment creditors and thereby, in relative terms, to disadvantage the corresponding judgment debtors. Though there is nothing objectionable in enforcement procedures designed to expedite the cross-border enforcement of the debts targeted by the Regulation’s authors, the further one moves from this original paradigm the greater the

210 Dicey

Morris & Collins on the Conflict of Laws (n 3) at para 14–251.

Procedural Disadvantage of the Debtor and Issues  243 potential objections become that systemic injustice to the debtor will result from the indiscriminate application of its procedures. With respect, debtors under notarial authentic instruments appear to be considerably removed from the class of judgment debtors targeted by the drafters of the Regulation and hence quite vulnerable to such disadvantages. This perception intensifies if the Member State of origin allows its notaries to ‘self-certify’ to issue an EEO certificate that circulates with the title but without any judicial oversight in the Member State of origin or in the enforcement venue: it being odd indeed to equate an enforceable court judgment that after a breakdown in relations between debtor and creditor determines authoritatively the existence and legal effect of a debt, with a document drawn-up by a privately remunerated public official, typically at the beginning of a legal relationship between creditor and debtor, often drafted on little more than the information they have provided to them, and that merely evidences that which is assumed to be a debt. Despite the differences noted above, the EEO Regulation not only lacks any basis for the enforcement venue to avoid debtor discrimination in the context of the enforcement of authentic instruments, it systemically minimises the role of the enforcement venue, again to the advantage of the creditor and disadvantage of the debtor. It is suggested that the EEO Regulation remains open to the objections and concerns noted by the RAND Report concerning the disadvantages it imposes on the debtor, and that practice indicates that the concern that it encourages oppressive or regrettable behaviour by creditors is well-founded. Several cases considered above support this suggestion, eg the 2012 Cour de cassation case and Moreno de la Hija v Lee.211 Without any evidence of a wish by the creditor to oppress her former husband, Lothschutz v Vogel [2014] demonstrated how the debtor may face expense and injustice because of the concatenation of circumstances that began with an original error of transcription on the EEO certificate. This trivial error was perpetuated by successive errors during enforcement that undoubtedly contributed to an injustice in this case; what is significant is not however just the fact of the errors but rather the systemic dangers they reveal in the methodology of a Regulation drafted to advantage the creditor over the debtor which also seeks to minimise the potential for the debtor to object in the enforcement venue. At first it is baffling that at no point did the various English courts that considered the creditor’s applications from 2009 notice the significant discrepancy between the terms of the German authentic instrument and the erroneous EEO certificate provided in accordance with Article 20(2)(a–b); the point however is explained by Article 20(2)(c) of the Regulation that allows only the potential translation/transcription of the EEO certificate – this does not extend to the

211 Moreno de la Hija v Lee [2018] EWHC 1374 (Ch) at paras 68–69 expressing judicial concern as to the conduct of both parties and at para 10 noting arguments between legal representatives.

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enforcement title itself.212 This is allegedly to save money and time on ‘unnecessary’ translation requirements, and to minimise further any possibility of a de facto exequatur stage.213 The enforcement venue is thus not permitted by the Regulation to consider an enforcement title expressed in a language or an alphabet that it cannot understand except to check that it is correctly presented on the certificate: this is despite the probability of a venue that can read the incoming title extracts responding via Article 11 to material discrepancies. That such an asymmetry exists is because the Regulation does not allow the enforcement venue to require a translation/transcription of the enforcement title itself, even if its notary author – who of all persons is surely the best placed person as only they will have the original – should attempt to intervene to correct an error. If Article 11 cannot be applied to remedy such a problem, the logic of the Regulation appears to require actual enforcement to proceed in the enforcement venue, unless the debtor, who has first commenced proceedings to revoke or rectify the certificate (or enforcement title) in the Member State of origin, then applies subsequently in the enforcement venue via Article 23 for an exceptional stay of the immediate enforcement for the duration of his challenge in the Member State of origin. According to the Regulation, the Article 23 stay application is the debtor’s only option to resist cross-border enforcement in the enforcement venue: this option is however both uncertain and weak. It is uncertain because the Regulation has been implemented differently across different legal systems with different notions of the need for and nature of the ‘remedies’ made available during the actual enforcement of an incoming foreign title: in some senses Germany214 and Austria are relatively generous with debtor protection, if compared to some francophone countries or to most venues that lack domestic authentic instruments.215 It should however be noted that despite a certain elasticity in the interpretation of the interaction of

212 The Austrian Supreme Court suggested in 2007 that if the EEO certificate included written ­additions to the completed tick-boxes, a translation of the certificate was ‘required’ OGH, 22.2.2007–3 Ob 253/06m. 213 See Lothschutz v Vogel [2014] EWHC 473 (QB). The small savings to Lothschutz’s cross-border enforcement hardly seem commensurate with the injustice and additional costs imposed on Vogel by erroneous EEO certificates that did not accord with the 2007 authentic instrument and led to English court orders in 2009 and 2011. 214 See the article by Wagner (writing privately but from the German Ministry of Justice): Wagner, ‘Das Gesetz zur Durchführung der Verordnung (EG) Nr. 805/2004 zum Europ. Vollstreckungstitel’ (n 1) 401 setting out the ways in which the ZPO was reformed to include protection of minimum rights and to restrict aspects of the debtor’s usual access to ‘enforcement remedies’. Other German commentators remain unconvinced that the German position is restricted enough to comply with the spirit of the EEO Regulation; see Hess (n 1) 493 and Bittmann’s sceptical discussion of the German application of § 767 ZPO and § 1086 ZPO to the EEO Regulation, D-C Bittmann, ‘Die Zulässigkeit materiellrechtlicher Einwendungen gegen einen Europäischen Vollstreckungstitel im Vollstreckungsstaat (zu OLG Köln, 21.11.2012–16 U 126/11, unten S. 158, Nr. 10)’ (2015) IPRax 129. 215 Bittmann, ibid, notes that many Member States responded to the EEO Regulation with provisions to protect the debtor and refers to Hess’ earlier prophetic warning that such legislative responses to the Regulation risked creating a ‘limping’ Regulation, Hess (n 1) 493.

Procedural Disadvantage of the Debtor and Issues  245 the Regulation with enforcement laws, the cases do not suggest that the German or Austrian courts routinely fail to enforce foreign enforcement titles presented via the EEO Regulation; quite the opposite is the case.216 The weakness of the debtor’s Article 23 option is due to the fact that it requires that they find more money (despite already facing an unsatisfied monetary claim) to bring urgent and ­additional legal proceedings to combat this cross-border enforcement across multiple venues. It must be expected that many debtors will have to acquiesce to any enforcement projected to cost less than attempting to challenge across two (or three) different Member State legal systems via multiple lawyers. If this fate only applied to the ‘bad’ debtor who inspired the EEO Regulation, few would sympathise: in truth however, it is the lot of every debtor who wishes to oppose EEO Regulation enforcement. Even debtors who would otherwise be regarded by EU private international law as ‘consumers’217 will face such enforcement under the EEO Regulation. If the differences between a judgment and an authentic instrument are factored in, eg the potential for the obligation that the EEO certificate records to describe a legal nullity rather than a legal determination of the obligation, and if it is remembered that the assumed obligation is commonly undertaken in circumstances far removed from the ideal face-to-face notarial transaction, eg via a power of attorney allowing the appointment of the debtor’s proxy from the employees in the notary’s office,218 and the potential for errors of transcription in the completion of the EEO certificate should be included, the precarious nature of the debtor’s ­position is clear. The probability that the enforcement of the authentic instrument will be based on the events at the point of drawing-up, rather than with regard to the after-occurring events, exacerbates matters for the debtor to obstruct further his ability to resist cross-border enforcement by justifying his ‘failure’ to comply with the terms of the authentic instrument.

B.  No Control of Public Policy via an Express Exception Included in the EEO Regulation The systemic disadvantage of the authentic instrument debtor by the EEO Regulation has a further aspect that affects both the debtor and the enforcement 216 See the exemplary examination of the issues by the Schleswig-Holsteinische OLG and its refusal to stop the enforcement as requested by the debtor in OLG Schleswig, Urteil vom 26.02.2009–5 U 71/08 via https://openjur.de/u/167628.html. 217 There is no ‘consumer’ status for authentic instrument debtors under the Regulation: Art 6(1) is disapplied. 218 Multiple members of the office staff of the notary were so employed via powers of attorney in OLG Schleswig, Urteil vom 26.02.2009–5 U 71/08 this was treated as entirely normal and unobjectionable by the court which rejected the debtor’s attempt to indicate impropriety in this respect, see https:// openjur.de/u/167628.html.

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venue: viz the lack of an overt Regulation public policy control mechanism. The EEO Regulation was the first measure of EU PIL to allow the cross-border enforcement of civil and commercial notarial authentic instruments without including an express public policy control operative in the enforcement venue. As the EEO Regulation offers an expedited and alternate route to an enforcement that previously could only proceed via the Brussels I Regulation, its omission of public policy control extends to all civil and commercial enforcement titles concerning an enforceable debt drawn-up since the EEO Regulation became temporally effective. If the Member State of origin allows its notaries to selfcertify, authentic instruments are created and certified without any judicial control or oversight and can, via the EEO Regulation be enforced in the rest of the EU (except Denmark) potentially again without any judicial oversight. The debtor who wishes to allege that an aspect of such enforcement constitutes a breach of the public policy of the enforcement venue seemingly has no means of halting this enforcement even if the creditor’s enforcement is blatantly contrary to the enforcement venue’s public policy. If it is surprising that the EU continued its earlier enforcement equivalence between judgments and authentic instruments from the Brussels Convention to the EEO Regulation, it is astonishing that it would reduce further the already restricted potential for the cross-border supervision of notarial authentic instruments by also omitting a public policy exception. Just as there was no pressing need to include authentic instruments in the EEO Regulation there was, despite the decision to dispense with the foreign exequatur stage, no need to dispense with a public policy exception concerning their enforcement.219 After all, why should a civil and commercial notarial authentic instrument be allowed to by-pass public policy control in the enforcement venue if, as may be expected, the creditor opts for this route to enforcement? An authentic instrument is a document drawnup by a privately remunerated public official that merely evidences an assumed debt asserted by the parties and presumed to be domestically enforceable; why should it circulate across borders with an initial imperative enforcement potential equivalent to that of a recognised judgment (a document drawn-up by a publicly remunerated public official which determines the existence and the legal effects of a debt obligation)? The obvious concern is that without either a foreign exequatur stage or any overt public policy control in the enforcement venue, there may be no judicial supervision in either venue for notarial authentic instruments presented under the EEO Regulation: this must be regarded as open to abuse by those who, freely or otherwise, would conceal their illegal or fraudulent purposes from the notary who, at their request, innocently220 draws-up a seemingly innocuous

219 See Art 45(1)(a) Brussels Ia Regulation. 220 Though it is possible that a notary might be involved in the fraud, this unusual possibility and its severe criminal and professional consequences are not explored in this book.

Procedural Disadvantage of the Debtor and Issues  247 domestically enforceable authentic instrument that will later be enforced across EU borders. Such illicit purposes could be: • to reward a ‘creditor’ now able to receive a payment misdescribed as the repayment of a sham loan or via another transaction misrepresented at an over or under value; • to camouflage an unlawful ‘penalty sanction’ associated with the ‘debtor’s ­non-performance of an illegal agreement that is neither disclosed by the authentic instrument nor known to the notary; • to evade a law in the enforcement venue by concluding an arrangement where this is lawful, securing the ‘obligation’ via a bare repayment obligation enforceable as such as a foreign authentic instrument in the enforcement venue; • to move sums of money across borders221 seemingly merely because of the possibilities implicit in the free circulation of enforceable titles describing a civil and commercial debt. Though the abovementioned concerns are real, the illicit behaviour they describe is of course in no way reserved or confined to the EEO Regulation: if the parties to an illicit agreement will keep it, their illicit actions will not be detected without a confession or forensic investigation. Whether the foregoing proposition or the notional acceleration of enforcement singly or jointly justify the removal of the debtor’s ability to resist cross-border enforcement by raising a Regulation public policy exception in the enforcement venue is however another matter. It is suggested that there are reasons to preserve the possibility, the most pressing of which is that a legal system that cannot consider wickedness in the course of enforcement thereby rewards the wicked and encourages their wickedness. This is why most legal systems feature domestic provisions that reflect the possibility that a party to a ‘fraudulent’ transaction may not have participated in it through free choice and/or that even if he did willingly participate he may occupy a locus poenitentiae such that policy favours him having the possibility of resiling from an illegal agreement rather than compelling him towards the irrevocable step of performing it by complying with the creditor’s enforcement demand. Be this as it may, as the EEO Regulation does not provide a public policy exception to the debtor in the enforcement venue; does he have any other options to so resist enforcement?

C.  Public Policy Arguments in the Member State of Origin? Though there is no specific provision of the Regulation that requires that the enforcement title does not infringe the public policy of the Member State of origin, 221 Reporting requirements concerning anti-money-laundering provisions, often administered by, inter alios, the notarial professions are however an important factor in combatting such actions.

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it is a requirement of cross-border enforceability that the relevant title must be domestically enforceable to give the EEO certificate legal efficacy via Article 11. If the debtor can defeat domestic enforceability by alleging an infringement of the Member State of origin’s public policy, he can prevent enforcement of the certificate in the enforcement venue. Member State of origin challenges to the instrumentum or negotium of an authentic instrument involving allegations of human rights or other public policy related infringements in the Member State of origin would justify the debtor making an Article 23(c) application in the enforcement venue while he seeks to unravel the cross-border enforceability of the enforcement title in the Member State of origin. If the inevitable duplication of the debtor’s costs is ignored, the possibility of opposing the enforcement title (or disputing the correctness of the certificate) in the Member State of origin, coupled with the possibility of an Article 23 application, could be regarded as a functional alternative to the missing public policy exception in the enforcement venue. This however presupposes that the Member State of origin can be convinced of the matter and that the enforcement venue will grant the Article 23 stay (or equivalent protective measures).

D.  Can there be any Control of Public Policy Concerning Human Rights Compliance in the Enforcement Venue under a Regulation Lacking an Exequatur Stage and Lacking a Public Policy Exception? What if the debtor’s ability to bring proceedings in the Member State of origin is barred by the very human rights infringement on which he would found his challenge? Can the Member State of enforcement intervene? It is advisable to precede this discussion with three observations. First, that which follows is speculative in the sense that it offers a route that could be attempted by a court presented by particular problems, the court would however have to resolve to explore and then to decide to follow this path; though it is argued below that this may be required, such a step involves the enforcement court or agency in an act of procedural boldness to remedy an unintended consequence222 of a poorly designed EU Regulation to further the interests of justice. Second, the situations in which any public policy exception, even one unarguably provided in the legislation, will be applied are inevitably exceptional and rare. There may be many attempts to use an overt public policy exception223 but 222 eg that a ‘good’ debtor might be oppressed by cross-border enforcement in circumstances where there is no remedy in the Member State of origin. 223 See J Fitchen, ‘Art 45(1)(a)’ in A Dickinson and E Lein (eds), The Brussels Regulation Recast (Oxford, Oxford University Press, 2105).

Procedural Disadvantage of the Debtor and Issues  249 few cases in which it can or should be applied:224 a succession of failed attempts does not therefore support a conclusion that a public policy exception should not exist. Third, and most importantly, the absence of an express public policy exception in an EU Regulation does not mean that higher external laws concerning overriding and applicable legal principles are therefore disapplied (eg human rights capable of being violated by cross-border enforcement sometimes expressed in terms of ‘public policy’ violations). It would be ridiculous to conclude from the omission of a public policy clause that the Regulation permits any and all such breaches of human rights that would otherwise have been prevented by invoking an express public policy clause if one had been provided. Despite these observations, the orthodox answer to most variations on the title question above provided by EU law and by ECHR law has, until recently, been ‘no’. Such orthodox conclusions, which despite being wrong in principle will often correctly predict the outcome (because of the exceptional nature of the suggested latent exception), are based on the premise that the enforcement venue should not attempt to actively police human rights infringements alleged to be associated with the EU law concerning incoming enforcement titles because by such active ‘policing’ of human rights related public policy the State apparently fails to comply with the EU Regulation and risks losing the ‘protection’ provided by the European Court of Human Rights’ (ECtHR) Bosphorous presumption.225 The Bosphorous presumption, when applicable, means that an EU enforcement venue need only consider manifest human rights deficiencies and can otherwise passively ‘trust’ the Member State of origin to have complied with equivalent ECHR human rights standards without itself becoming complicit in the furtherance of any earlier breach occurring in the Member State of origin; this ‘concession’ by the ECtHR is premised on an equivalence of human rights protection across EU Member States all bound by the ECHR. In the EU226 the presumption will apply if the enforcement venue acts in obliged compliance with EU law (eg via an imperative Regulation) without exercising any independent discretion, and, if fundamental rights under EU law remain sufficiently protected because the enforcement venue can/will request a preliminary ruling from the CJEU. The Bosphorous presumption has been applied by the ECtHR in various cases in which there was otherwise a potential for a collision between the human rights competence of the Strasbourg court and various aspects of the application of EU law227 otherwise subject to the jurisdiction of the CJEU (and to the CFREU). 224 eg Case C-681/13 Diageo Brands BV v Simiramida-04 EOOD ECLI:EU:C:2015:471 at para 68; Case C-559/14 Rudolfs Meroni v Recoletos Limited ECLI:EU:C:2016:349 paras 53–54. 225 Case No 45036/98, Bosphorus v Ireland, ECtHR 30 June 2005, [2005] ECHR 440 paras 155–56. 226 For reasons of space, ‘equivalence’ is assumed. 227 In Bosphorus v Ireland, Council Regulation No 990/93; in M.S.S. v Belgium and Greece [2011] ECHR 748 the Dublin II Regulation on asylum); in Michaud v France (6 December 2012, final 6 March 2013 EU anti-money laundering Directive 2005/60; in Povse v Austria [2013] ECHR 732 the Brussels IIa Regulation’s abolition of exequatur for child abduction.

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The Bosphorous presumption can thus support (and indeed encourage) a negative answer to the question above, it is also capable of being construed in support of a wider orthodoxy in the EU such as the CJEU’s stronger version of the mutual trust concept it set out in Opinion 2/13.228 In this opinion the CJEU sought, inter alia, to further the notion that EU laws applied in a Member State of origin may operate/circulate within the rest of the EU on the basis of presumed compliance with human rights inside the Member State of origin and without any possibility of facing routine ECHR review or challenge in the other Member States.229 This however assumes that the Bosphorous presumption applies, and that there are no manifest deficiencies relating to the ECHR/CFREU requiring action by the enforcement venue. Though it is clear from case law that the Bosphorous presumption can apply to the cross-border enforcement of judgments,230 it is not as clear that it also applies to the cross-border enforcement of all notarial authentic instruments. An authentic instrument drawn-up by a notary who, on the same day, issues an EEO certificate to its creditor that allows enforcement across the other 26 participating Member States, potentially on presentation to a non-judicial enforcement official of only untranslated extracts from the original authentic instrument plus an EEO certificate is not quite the same as an ostensibly enforceable judgment issued by a court and thus may raise difficulties in its interaction with the Bosphorous presumption. A particular difficulty may be that the authentic instrument enforcement procedure is not necessarily adequately protected by the potential for a reference to the CJEU: no notary can so refer and it may be that the enforcement agency in receipt also cannot refer. In such circumstances, a potential referral necessitates that the debtor has commenced judicial challenge proceedings probably in the Member State of origin. It remains to be seen whether this can suffice for the application of the Bosphorous presumption to the cross-border enforcement of any notarial authentic instruments under the EEO Regulation.231 That said, the Bosphorous principle never protects or exculpates an enforcement venue from liability arising from ordering enforcement according to the terms of the Regulation if this is attended by gross and obvious breaches of the debtor’s ECHR human rights. The possibility of such a ‘manifest deficiency’ trumping the application of even a Bosphorous compliant EU Regulation is an ever-present factor. In short it is not possible for an EU enforcement venue to benefit from the Bosphorous principle when there is a manifest deficiency or gross infringement of the debtor’s human rights that the cross-border enforcement dictated by

228 Opinion 2/13 of the Court (Full Court) 18 December 2014 ECLI:EU:C:2014:2454 at para 192. 229 See eg Joined Cases C-411/10 and C-493/10 ECLI:EU:C:2011:865 at paras 78–80, the treatment of asylum seekers in all Member States must be assumed to comply with the Charter, the Geneva Convention and the ECHR; Case C-399/11 ECLI:EU:C:2013:107 at para 37 and at para 63 where Art 53 CFREU is also clarified. 230 See ECtHR 18 June 2013, Decision on Admissibility, Appl No 3890/11 (Povse v Austria). 231 For reasons of space the issue is not considered further.

Procedural Disadvantage of the Debtor and Issues  251 the Regulation will magnify by facilitating enforcement. A variation on the cause ­célèbre of Krombach v Bamberski232 provides a hypothetical example. If Bamberski had been able to choose to enforce his French civil judgment against Krombach in Germany via the EEO Regulation (rather than via the Brussels Convention) there would have been no explicit basis in the EEO Regulation for the Germany enforcement court to refuse to recognise or enforce the judgment despite the facts surrounding the enforcement request strongly indicating that to do so would manifestly violate German public policy, Article 6(1) ECHR and Article 47 CFREU. Is it therefore correct to conclude that in such a circumstance the German legal system would refuse to entertain dissenting arguments from Krombach and would have merely required him to pay Bamberski in satisfaction of a somewhat unusual but undoubtedly ‘uncontested’ judgment? Despite a 2014 case from the BGH (discussed below) that regrettably could be argued to suggest otherwise, it is suggested that this is not correct and would not occur. The enforcement required by the EEO Regulation cannot be permitted if it proceeds from a civil liability imposed in clear and blatant breach of the debtor’s Article 6(1) ECHR or Article 47 CFREU human rights as this would, in the absence of Bosphorous exculpation for the enforcement venue, continue and magnify in the enforcement venue the original breach of the debtor’s rights in the Member State of origin: it is inconceivable that this could be thought consistent with either the stated purpose of Recital 11 of the EEO Regulation concerning fundamental human rights or with the higher imperative obligations imposed on Member States (including their enforcement agents) by both the EU Charter and the ECHR Convention. It seems to follow that in the hypothetical case above the German authorities should not ignore objections raised by the debtor and should conclude that as the requested enforcement was manifestly incompatible with Article 6(1) ECHR and Article 47 EUCFR it could not proceed.233 Despite the absence of a public policy exception in the Regulation, the example above suggests that it may be that there are circumstances in which EEO enforcement procedures based on an earlier human rights infringement in the Member State of origin can and should be refused in the enforcement venue. This impression is strengthened by the pronouncements of both the Grand Chamber of the European Court of Human Rights in Avotiņš v Latvia234 and the earlier observations of the CJEU concerning enforcement in ‘exceptional cases’ mentioned in

232 See Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I – 1935. The German defendant in French criminal proceedings did not attend the French court but sent lawyers to represent him in his absence. The French court refused to hear his lawyers, on the basis that despite the right to a fair trial mandated by Art 6 of the ECHR the French procedures did not allow this, then found him guilty of a criminal offence and imposed a civil liability in favour of the father of the defendant’s victim which that father then sought to enforce via the Brussels Convention against Krombach in Germany. 233 There would be no infringement of the Art 21(2) prohibition on a révison au fond as the circumstances make it plain that a serious human rights infringement has occurred. 234 Case No 17502/07, Avotiņš v Latvia ECtHR 23 May 2016 [GC] at paras 98 and 113–16.

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Opinion 2/13.235 Both pronouncements indicate that it is wrong for an enforcement venue to take an insular, and frankly somewhat ‘Nelsonian’ approach to the detection of arguments going to the issue of an alleged intra-EU human rights infringement capable of obstructing the normal duty of cross-border enforcement concerning an enforceable title. According to the ECtHR, the fundamental point of the Bosphorous presumption is that as a presumption, not an incontestable assumption, it is capable of rebuttal; hence the authorities in the enforcement venue must remain willing to consider allegations by the debtor going to the issue that the presumption should not apply in this exceptional case.236 If the debtor raises such an allegation in the enforcement venue, the enforcement authorities should not refuse to hear it because this eventuality is not provided for (or is presumed or assumed to be forbidden) by an EU Regulation: the application of the Bosphorous presumption to exculpate the enforcement venue can only be established if the authorities in the Member States allow for its potential rebuttal. It follows that the enforcement authorities must be willing to hear and consider such arguments from the debtor to allow the exceptional case to avoid an inappropriate ‘normal’ enforcement in that venue. Earlier in Opinion 2 /13 the CJEU had also clarified that though a routine obligation on what for present purposes may be considered solely as the enforcement venue to check all incoming titles to establish ECHR compliance would interfere with EU mutual trust to an impermissible extent,237 this would not be the case if the enforcement venue so acted only in exceptional cases. 191 …. mutual trust … requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, judgments in N. S. and Others, C-411/10 and C-493/10, EU:C:2011:865, paragraphs 78 to 80, and Melloni, EU:C:2013:107, paragraphs 37 and 63). 192. Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU.238 235 n 229 at paras 191 and 192 the CJEU notes the general duty for an enforcement venue/Member State to comply but twice qualifies this duty by referring to exceptional circumstances in which the enforcement venue may check the Member State of origin’s compliance with the debtor’s fundamental charter rights. 236 See C Kohler, ‘Grenzen des gegenseitigen Vertrauens im Europäischen Justizraum: Zum Urteil des EGMR in Sachen Avotiņš v. Lettland’ [2017] IPRax 333; P Gragl, ‘An Olive Branch from Strasbourg? Interpreting the European Court of Human Rights’ Resurrection of Bosphorus and Reaction to Opinion 2/13 in the Avotiņš Case: ECtHR 23 May 2016, Case No. 17502/07, Avotiņš v Latvia’ (2017) 13 European Constitutional Law Review 551; D Düsterhaus, ‘The ECtHR, the CJEU and the AFSJ: a Matter of Mutual Trust’ [2017] E L Rev 388. 237 See Opinion 2/13 (n 229) para 194. 238 ibid, my italics.

Procedural Disadvantage of the Debtor and Issues  253 Thus, according to the CJEU itself, there is an exceptional possibility of review during the implementation of EU law (ie when in receipt of a European Enforcement Order presented for enforcement) that is an exception to the mutual trust principle rather than being forbidden by it.239 This accords with the requirement of a review possibility as set out by the Grand Chamber of the European Court of Human Rights in Avotiņš v Latvia. It follows that in such exceptional cases that the debtor may legitimately attempt to persuade the enforcement authorities that enforcement should not proceed because this would, due to an earlier human rights infringement or some equivalent outrage, trigger what may be thought of as an unwritten latent public policy exception justifying refusal. The preceding suggestions are not a cure-all for the many debtors who would simply rather not face enforcement; they only offer the debtor an equivalent of a public policy exception in the most exceptional of circumstances. It is probable that any such possibility would, unless the nature of the breach of human rights prevented this, require the debtor to engage with the challenge possibilities in the Member State of origin (something also required for an Article 23 application in the enforcement venue). For judgments such engagement is typically required: even if the ECHR is applicable and engaged, the defendant must have exhausted the remedies in the Member State of enforcement before it may be applied.240 A similar intra-EU requirement regarding exhausting remedies in the Member State of origin applies to Article 45(1)(b) of the Brussels Ia Regulation: the CJEU has however recently indicated some potential for flexibility on this matter when in Diageo it noted that it may be sometimes be impossible or too difficult to use the legal remedies available in the Member State of origin.241 It is suggested that there may be cases where the nature of a human rights infringement might make it unreasonable to require the debtor to proceed to further challenge options in the Member State of origin, eg in the hypothetical version of Krombach above, if his imprisonment or potential extradition to a third country should be a prospect. If an authentic instrument is involved, it may be that the ‘elasticity’ of its challenge possibilities would also have to be accommodated by substituting engagement for exhaustion given that theoretically a notarial authentic instrument may always be challenged in certain senses (even after its enforcement) in the place in which it was drawn-up. Though different types of authentic instruments (eg those arising via Article 4(3)(b) EEO)242 or truly exceptional cases might lead to different outcomes: the point to take from the discussion above is that such arguments may still be advanced by the debtor despite the absence of a dedicated procedural mechanism to allow the application and therefore it is suggested that the Member 239 See also Kohler (n 237) 335. 240 A point noted in Avotiņš v Latvia. 241 Case C-681/13 Diageo Brands BV v Simiramida ECLI:EU:C:2015:471 at para 68 concerning a ­judgment and Art 34 of the Brussels I Regulation. 242 The involvement of national authorities might permit a breach of the required seriousness.

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State of enforcement may still (despite the absence of a public policy exception in the EEO Regulation) exceptionally refuse to allow the enforcement of inter alia an incoming authentic instrument.

E.  Reactions to the Suggestion of Latent Public Policy Control in the Enforcement Venue by National Courts Most national courts have merely read the Regulation to confirm the orthodoxy that it allows no public policy control in the enforcement venue and proceeded accordingly. That said, such observations have mostly been fairly off-hand and from cases that do not raise any obvious exceptional public policy issues concerning the requested enforcement. Thus when considering the operation of the Regulation concerning a judgment the Austrian OGH noted Article 5 EEO and the absence of an exequatur function in the enforcement venue before observing that it is at the option of the creditor to proceed via either the Brussels I Regulation (with all of its exceptions, including public policy, to recognition and enforcement available to the debtor who disputes either) or instead via the EEO Regulation consequentially depriving the debtor of most of those exceptions (including omitted public policy).243 All such conclusions are unexceptionable.244 The same may be said of circumstances in which Article 11 of the Regulation may be applied by the enforcement court/authority to deprive the EEO certificate of enforceability. Technically an enforcement authority presented with an EEO certificate (plus extracts from an apparently enforceable authentic instrument) that applies Article 11 EEO is not declining to enforce an enforceable title for a breach of public policy, but rather is noticing a defect (that might even extend to misrepresentation of the contents of the authentic instrument)245 in the current enforceability of that title and certificate as presented. A more extreme, and with respect unconvincing, suggestion concerning public policy itself was made by the German BGH in 2014 when it asserted that the EEO Regulation’s lack of an exequatur stage therefore entailed that all forms of public policy were therefore also excluded and unavailable to the debtor who wished to resist EEO enforcement of a Polish maintenance judgment in Germany.246 The BGH’s reasoning is open to objections of logic as Article 33(1) of the Brussels I Regulation and Articles 36(1) and 39 of the Brussels Ia Regulation all provide clear

243 OGH (AT) 19.05.2009–3Ob64/09x. Similar observations are found in most Member State courts considering the EEO Regulation, eg Landesgericht Mannheim noted that there is no Regulation provision for public policy control in the enforcement venue in LG Mannheim 05.11.2009–8 O 188/09. 244 Similarly see the assumption in Ghams by the Dutch Court that the (wholly unobjectionable) German EEO would be unopposable in the Netherlands: Case 200.218.280/01, ECLI:NL:GHAMS:2018:3753, https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2018:3753. 245 See discussion of Lothschutz v Vogel above n 213. 246 BGH 24.04.2014 – VII ZB 28/13 at paras 9 and 13.

Procedural Disadvantage of the Debtor and Issues  255 contrary examples of public policy existing as an exception despite the abolition or automation of exequatur: it is also vulnerable to the objection that it unwisely sets at naught the potential for a situation involving different facts to arise involving an overriding manifest deficiency in human rights compliance. In point of fact there was no such manifest deficiency in this case, and the public policy argument appears to have been advanced by the debtor more in hope than in expectation. As the BGH were not confronted with a Krombach style outrage it may be that their reasoning should not be extended to dismiss such an exceptional issue. Kohler has however criticised the German court for ignoring the important qualifications on enforcement offered by the CJEU in Opinion 2/13.247 Kohler bolsters his convincing argument that refusal of enforcement is possible and proper, despite no explicit provision allowing this in the EU law that demands enforcement, by referring to the CJEU’s comments in a later case concerning the European Arrest Warrant in which it decided that despite the absence of any explicit ground in the text of the relevant EU legislation permitting the enforcement venue to refuse the execution of a presented EU arrest warrant, such execution being mandated by that EU legislation, the authorities in the Member State of enforcement were still obliged to refuse to execute/enforce if what was presented featured no reference to the prior issue of a domestic arrest warrant: to do otherwise – the CJEU explained – would require the enforcement venue to impermissibly reduce the protection of the target’s procedural rights.248 As the 2014 BGH decision did not deal with the CJEU’s observations concerning ‘exceptional cases’ from Opinion 2/13 and as it has been superseded on certain points by the Grand Chamber decision of the ECtHR in Avotiņš v Latvia, it is suggested that it should not be extrapolated and applied to enforcement cases featuring such exceptional matters: it seems probable that in the hypothetical variation on Krombach posited above, most enforcement courts would seek appropriate means of gap-filling to resist the unintended249 enforcement of a foreign enforcement title so blatantly incompatible with the human rights protections binding on the enforcement venue and claimed by Recital 11 to be foundational to the EU Regulation in question. Though one route for such procedural exploration is sketched in outline in this chapter, it remains to be seen if events will produce the circumstances that allow it to be explored in the context of authentic instruments. Refusal of enforcement is contemplated by the CJEU in Opinion 2/13 (as discussed above); a milder form of gap-filling, with an arguable defence rights/public policy dimension, occurred when it was confirmed by the High Court that the English court had (it is submitted correctly) deduced an

247 Kohler (n 237) referring to the exceptional circumstances set out by the CJEU at paras 191 and 192 of Opinion 2/13. 248 C-241/15 Bob-Dogi EU:C:2016:385, paras 62–67 mentioned by Kohler (n 237) in fn 50. 249 Nothing in the travaux préparatoires concerning the drafting of the Regulation suggests that it was intended to function to deprive debtors of their human rights or defence rights; quite the opposite is the case.

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inherent jurisdiction to stay a very dubious EEO Regulation enforcement application in Moreno de la Hija v Lee.250

F.  Can the Enforcement of an Authentic Instrument Trigger a Human Rights/Public Policy Outrage? It may seem difficult to re-imagine a Krombach-style infringement applying to the cross-border enforcement of a notarial authentic instrument; the point to keep in mind however is that the nature of such a human rights/public policy infringement is not necessarily a consequence of the drawing-up of the authentic instrument but concerns its enforcement. In theory the authentic instrument may be drawn-up with exemplary professionalism by the notary but so enforced as to infringe materially the human rights or another aspect of the enforcement venue’s public policy. The spectrum of outrageous enforcement ranges from a corrupt or suborned notary conniving with the creditor to draw-up a corrupt authentic instrument, to, the creditor (or their assignee) acting alone to use the cross-border enforcement possibilities of the notarial authentic instrument to oppress the debtor. Hypothetical examples may be generated by adapting the facts of Vogel v Lothschutz to introduce aspects of mala fides to the notary, the Rechtsanwalt and the creditor: a) imaginary creditor suborns the notary to substitute a forgery for the actual authentic instrument; b) imaginary creditor suborns the Rechtsanwalt to erroneously transcribe the details onto the EEO certificate; c) imaginary creditor notes and then seeks to exploit an error in her favour by seeking enforcement of an erroneous certificate; d) imaginary creditor attempts without entire success to conceal circumstances that affect her entitlement to claim. In any of these scenarios a debtor who was unable to return to the Member State of origin (eg because they would face imprisonment there or extradition to a third country), would present the enforcement venue with similar issues to those that arose in Krombach; it is hard to believe that the enforcement venue should ignore all such circumstances and evidence and proceed without any reflection to EEO enforcement.

V. Conclusion The dated and unreformed EEO Regulation presents the authentic instrument creditor with an alternate route to cross-border enforcement featuring numerous creditor-friendly advantages over the possibilities of the Brussels I Regulation and its successor. This advantaging of the creditor is however open to the serial



250 Moreno

de la Hija v Lee [2018] EWHC 1374 (Ch).

Conclusion  257 objections that it is unwarranted in the context of authentic instruments; intersects with notarial practice in a manner that tends to encourage authentic instruments to circulate ‘under the radar’ of normal judicial supervision of cross-border enforcement; may be used to violate the debtor’s human rights; and, can be misunderstood to deny the enforcement venue any means to police enforceability and human rights compliance. Each advantage of the creditor is thus at the expense of the debtor and in most cases there will be no possibility of the debtor opposing enforcement other than via the deft coordination of litigation across at least two legal systems in two different Member States: the enforcement venue must therefore be alive to the potential for injustice to all debtors arising as an unintended consequence from a Regulation formulated to remedy a particular problem posed by ‘bad’ judgment debtors that inadvertently has created another potential problem of ‘bad’ judgment and authentic instrument creditors. The issue is magnified in the context of authentic instruments as the creditor’s conduct is largely detached or ‘cut-off ’ from judicial supervision and therefore also misunderstood to be ‘insulated’ from human rights/ public policy compliance. Due to the abolition of exequatur under the Brussels Ia Regulation it seems that the EEO Regulation is now superfluous for the judgment enforcement it was designed to permit; it follows that it could be revoked or heavily recast to align it with modern legal thinking on human rights issues.

6 The Maintenance Regulation I. Introduction The Maintenance Regulation1 is the latest attempt by the EU to facilitate claims for maintenance payments across Member State borders.2 This facilitation still involves providing private international law concerning cross-border issues of jurisdiction, applicable law and recognition and enforcement of domestic ‘maintenance obligations’ between Member States, but also involves European measures intended to facilitate the cross-border cooperation of the designated Central Authorities of each participating Member State in such claims. Such cooperation has gone on in the past but was mostly via the provisions of various international Conventions dealing with different aspects of the problems posed by such claims: the Maintenance Regulation sought to apply the most modern versions of these international laws within the participating EU Member States as well as providing an updated version of the ‘traditional’ measures of private international law set out above. Thus, the Regulation additionally allows a maintenance claim to be formulated with the assistance of a Central Authority in the Member State of origin, transmitted from that Central Authority to another equivalent Central Authority in the Member State of intended enforcement, and then to be enforced (or varied) there to allow the transmission of the payments from debtor to creditor. Important as they are, because this chapter focuses on a specific private international law issue, the Maintenance Regulation provisions concerning the Central Authorities will not be discussed further in detail.3

1 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, ­recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations OJ L 7, 10.1.2009, 1–79. 2 Ch 2 of L Walker, Maintenance and Child Support in Private International Law (Oxford, Hart Publishing, 2015); B Hess and S Spancken, ‘Setting The Scene’ in P Beaumont, B Hess, L Walker and S Spancken (eds), The Recovery of Maintenance in the EU and Worldwide (Oxford, Hart Publishing, 2014); P Beaumont and P McEleavy, Anton’s Private International Law 3rd edn (Edinburgh, W Green, 2012) Ch 19 particularly 19.01–19.28. 3 For detail and comments on early surveys on these matters: Ch 10 of Walker (n 2); also Hess and Spancken (n 2); L Walker and P Beaumont, ‘Empirical Study on the Early Operation of the EU Maintenance Regulation’ and B Hess and S Spancken, ‘The Effective Operation of the EU Maintenance Regulation’ in Beaumont, Hess, Walker and Spancken (n 2).

Introduction  259 Further omissions arise from only addressing the intra-EU aspects of the Regulation, despite the EU Regulation being developed synchronously with a comparable exercise in ‘updating’ and improvement undertaken by the Hague Conference on Private International Law ending in late 2007 in a new Convention (albeit called a Protocol). It should also be noted that a complex tangle of other earlier international Conventions, and other provisions, addressing aspects of cross-border maintenance claims and cooperation between States, continue to exist outside the confines of the intra-EU context imposed by the subject matter of this book.4 As a minimum the Maintenance Regulation attempts to provide its EU Member States with access to improved and updated measures developed from the provisions of European private international law that formerly governed jurisdiction and cross-border enforcement of maintenance claims within the EU. The origins of such ‘European’ law stretch back to the early discussions on drafting the EEC’s original Brussels Convention which, given that ‘most of the original Member States were parties to the Hague Convention of 1958 on the recognition and enforcement of decisions relating to maintenance obligations in respect of children, and the New York Convention of 1956 on the recovery abroad of maintenance …’5 led to Article 5(2) a measure of special jurisdiction, allowing additionally that ‘A person domiciled in a Contracting State may, in another Contracting State, be sued … in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident’.6 Despite the jurisdictional extension and textual changes of 1978, to accommodate the UK’s tendency to address what for it were ‘maintenance issues’ via legal proceedings directly concerning divorce (a matter of personal status excluded from the Convention) to which claims for ‘maintenance’ were technically ancillary, the text of Article 5(2) otherwise remained constant when the Brussels Convention was updated into the Brussels I Regulation in 2001.7 As well as jurisdictional possibilities, the Brussels Convention and the Brussels I Regulation each offered the creditor of a civil and commercial maintenance judgment the considerable advantages of their respective cross-border recognition and enforcement procedures. Matters were subtly different for the creditor of a civil and commercial maintenance authentic instrument as though intra-EEC or EC enforcement (not recognition) continued to be possible, the change from Article 50 Brussels

4 The law is analysed in depth in the following works: Walker (n 2); Beaumont, Hess, Walker and Spancken (eds) (n 3); for an overview see Beaumont and McEleavy (n 2) ch 19. 5 Per Thorpe LJ in Moore v Moore [2007] EWCA Civ 361 para 70 referring to the Jenard Report, p 24. 6 My italics. 7 Article 5(2) of the Lugano Convention of 1988 mirrors the Brussels Convention provision. Art 5(2) (a) of the Lugano Convention of 2007 continues the special jurisdiction for the creditor but is supplemented by Art 5(2)(b–c) which addresses special jurisdiction when maintenance is a matter ancillary to litigation concerning personal status or parental responsibility respectively.

260  The Maintenance Regulation Convention to Article 57 Brussels I Regulation saw the insertion of Article 57(2) which made it plain that arrangements relating to maintenance obligations concluded or authenticated by administrative authorities were also to be understood as authentic instruments capable of cross-border enforcement as per Article 57(1). This was a consequence of the move from the ‘convention plus protocol’ format of the Brussels Convention to the new, protocol-free, format of the Brussels I Regulation. The insertion formalised the standing of maintenance administrative authorities that had gradually accumulated via additions to the 1968 Protocol annexed to the Brussels Convention of 1968. The 1978 accession of Denmark began the trend by adding new wording to the 1968 Protocol annexed to the Brussels Convention to indicate that Danish administrative authorities were, in matters relating to maintenance, to be understood to be included in the expression ‘court’.8 As new countries with a similar approach to maintenance joined the EEC, this provision was amended to include their administrative authorities too, eg the Greek accession. By 1996 the text of what became Article 57(2) was essentially achieved within the amended Convention Protocol. The subsequent conversion process simply ‘cut’ the Protocol provision concerning administrative authorities, which were relevant to many founding Member States too, as family relationships associated with maintenance obligations extended across the European continent, and then ‘pasted’ it, subject to a change in nomenclature, into the Brussels I Regulation.9 From 21 October 2005 the Brussels I Regulation routes to cross-border enforcement of a maintenance claim were supplemented by the optional alternative of enforcing uncontested claims for money sums via the European Enforcement Order Regulation.10 Though the EEO Regulation provided the eligible maintenance creditor with a faster means of achieving the cross-border enforcement of an uncontested money enforcement title, it did not try to do more and, in common with the Brussels I Regulation arrangements, left many issues associated with formulating, bringing, enforcing and varying a maintenance claim outside the EC’s harmonised cross-border enforcement rules and instead subject to the nature of the involvement of the relevant Member States in the abovementioned

8 ‘Art Va, In matters relating to maintenance, the expression “court” includes the Danish administrative Authorities’: inserted into the Protocol of 27 September 1968 annexed to the Brussels Convention by the 1978 Accession Convention on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice (Signed on 9 October 1978) (78/884/EEC) OJ L304, 30.10.1978, 10. 9 As noted by A Layton and H Mercer, European Civil Practice 2nd edn (London, Sweet & Maxwell, 2004) at 1036 in their footnote †, the ‘new’ text was drawn from Art Ve of the Annexed Protocol to the Brussels Convention which had been added by Art 10 of the 1996 Accession Convention see OJ C 15, 15.1.1997, p. 1. Also see Layton and Mercer, ibid, para 34.029 at 1151 and in their footnote ‡. 10 See previous chapter but note that the EEO Regulation does not apply in Denmark and cannot apply to enforcement titles drawn-up on or before 21 January 2005.

Introduction  261 tangle of other arrangements concerning maintenance of a bilateral,11 regional,12 international13 or European14 nature.15 The ‘other arrangements’ were (and have remained) relevant in a wider sense to the European private international law that touches maintenance issues; they have variously affected and influenced European private international law since the early drafting the Brussels Convention of 1968.16 This influence continued after the Brussels Convention came into operation17 as the EEC/EC and the Member States respectively sought to ensure that ‘their’ private international laws continued to facilitate the right sort of maintenance claim by the right sort of maintenance litigant within the European Communities. In one sense, most EU and non-EU States are in favour of further developments to cross-border maintenance claims: a child, former spouse or other person resident in State ‘A’ in need of ‘maintenance’ from a party now based in State ‘B’ who, as a consequence of non-cooperation between administrative authorities, or because of incompatible private international laws (or other procedural or cost obstacles), receives no maintenance will then become a drain on State ‘A’s’ resources; similar issues may arise in either State if the original maintenance claim requires variation but legal issues arising from the different locations of the parties interact to obstruct this. In both cases reform facilitating the presently obstructed maintenance claim will reduce the resource drain.

11 For reasons of space and relevance the bilateral arrangements are not considered. 12 Note from Danish, Finnish and Swedish delegations of 1 Oct 2008 13505/08 JUSTCIV 189 summarising the Nordic Convention between Denmark, Finland, Iceland, Norway and Sweden on the Recovery of Maintenance of 26 March 1962 (in force from 1 July 1963) including an unofficial English translation consolidated to ‘EU’ membership to 2008. 13 eg the United Nations’ New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance UNTS 268 and various conventions achieved by the Hague Conference on Private International Law. 14 eg Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 OJ L 338, 23.12.2003, 1. 15 The EC attempted, unsuccessfully, to add to the options by proposing a Rome Convention of 6 November 1990 between the Member States of the European Communities on the Simplification of Procedures for the Recovery of Maintenance Payments: it never came into force and was generally assessed as an unnecessary ‘European’ version of the 1956 New York Convention by Sumampouw, see M Sumampouw, ‘The EC Convention on the Recovery of Maintenance: Necessity or Excess?’ (1992) 39(S1) Netherlands International Law Review 315–36. 16 In relation to Art 5(2) the Jenard Report refers at 4 to both the New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance and to the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations in Respect of Children, concluded at The Hague on the 15th of April 1958. Both conventions were binding between Belgium, France, Germany and the Netherlands from 1 September 1966. Though outside the scope of the Brussels Convention, the Hague Convention of the 24th of October 1956 on the Law Applicable to Maintenance Obligations in Respect of Children is a further exemplar of the trend to facilitate claims internationally. 17 eg an updated replacement of the Hague Convention of 15 April 1958 was produced as the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (No.23) and entered into force on 1 August 1976 (shortly followed by the replacement Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations (No.24) in force 1 October 1977.

262  The Maintenance Regulation Stating the advantages of a reform is however easier than achieving the necessary consensus to bring it about: reforming private international and international laws to better facilitate international maintenance claims (and better procedures relating thereunto) tends to fall to international bodies such as the United Nations or latterly the Hague Conference on Private International Law.18 The European Community (EC), inter alios, noted with interest19 that in 2002 the 19th session of the Hague Conference proposed to work from May 2003 on negotiating a new and comprehensive Convention that would involve revisiting and revising its earlier Maintenance Conventions and the UN’s New York Convention of 20 June 1956. At the risk of oversimplifying20 an extended process, three opportunities for the EC arose from its active involvement in the Hague Conference negotiations: a) EC involvement in a comprehensive and potentially global maintenance Convention that would allow an improvement of international cooperation concerning maintenance claims with an external dimension to the EC; b) potential harmonisation of applicable law rules in the EC concerning maintenance obligations, and; c) reform by the Hague Conference would provide impetus for the EC to establish a new and more ambitious intra-EC Maintenance Regulation that harmonised private international law and improved cross-border maintenance arrangements within the EC by exploiting its potential to go further than the Hague Conference, eg by reforming of intra-EC direct jurisdictional rules, inclusion of applicable law provisions,21 and abolishing exequatur requirements. The negotiation and conclusion of the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance,22 and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations,23 each influenced the establishment of the new Maintenance Regulation 4/2009 and meant that Article 5(2) of the Brussels I Regulation was hardly needed. The recast Regulation 1215/2012 saw the head of special jurisdiction for maintenance formerly present as Article 5(2) ­omitted and Article 1(2)(e) excluded the application of the Brussels Ia Regulation to 18 Beaumont and McEleavy (n 2) paras 19.12–19.26 for a succinct account of the history and parties. 19 P Beaumont, ‘International Family Law in Europe – the Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity’ [2009] Rabels Z 509 at 513. 20 For a more detailed and nuanced account see Beaumont and McEleavy (n 2) paras 19.27–19.28. 21 As Denmark and the UK had no wish to see any harmonisation of their laws on this matter Art 15 takes an ‘incorporation by reference’ approach and the Regulation accommodates the differences via two different enforcement systems. 22 W Duncan, ‘The New Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance’ [2008] IFL 13; A Borras, ‘The Limit on Proceedings in Maintenance Claims: An example of the Compatibility Between the European Instruments and the 2007 Hague Convention’ [2012] IFL 110. On international cooperation see M Kurucz, ‘The 2007 Hague Maintenance Convention: Response to Practical Demands’ [2012] IFL 103. 23 The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (No.38) in force: 1 January 2013 and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (No.39) in force 1 August 2013. Available from www.hcch.net/en/instruments/conventions/full-text/?cid=131 and www.hcch.net/en/instruments/ conventions/full-text/?cid=133.

Introduction  263 ‘maintenance obligations arising from a family relationship, parentage, marriage or affinity’. Such however is the width of maintenance obligations across the legal systems of the Member States that could include payments to ‘maintain’ a person despite the absence of a family or ‘family law’ relationship, that the Schlosser Report distinguished Article 5(2) maintenance obligations from other obligations to maintain, eg arising purely from contract or from tort, that therefore did not belong under Article 5(2) but under their own heads of Article 5 special jurisdiction.24 It probably follows that despite the exclusion of maintenance obligations from the scope of the Brussels Ia Regulation, a creditor with a claim to be maintained that does not arise from a ‘family law’ cause could still proceed via another head of Article 7 of the Brussels Ia Regulation.25 There is however a need for some caution in this respect; the Maintenance Regulation demonstrates clear legislative intent to remove its autonomously construed ‘maintenance obligations’ in toto from the scope of the Brussels I Regulation26 and provisions confirming the generality of this legislative intent to exclude also feature in the Brussels Ia Regulation.27 Though logic preserves the characterisation possibility within the EU,28 it is necessary to surmount the autonomous EU concepts of maintenance and maintenance obligations before the theoretical possibility of an Article 7(1) claim becomes available. By way of illustration, is a prenuptial agreement purely contractual? 24 Report by Professor Dr Peter Schlosser on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice OJ: JOC_1979_059_R_0071_01, para 92. Thus. the tortfeasor’s duty to ‘maintain’ the person he hospitalised by negligent driving belongs in Art 5(3) not Art 5(2). 25 The issues are summarised by the following writers, P Mankowski, ‘Art 5’ in U Magnus and P Mankowski (eds), Brussels I Regulation 2nd edn (Munich, SELP, 2011) 212–29 at 216; I Viarengo, ‘The Removal of Maintenance Obligations from the Scope of Brussels I’ in F Pocar, I Viarengo and F Villata, Recasting Brussels I 1st edn (Milan, CEDAM, 2012) 29, 30; M Illmer, ‘Art 1(2)(e)’ in A Dickinson and E Lein (eds), The Brussels I Regulation Recast 1st edn (Oxford, Oxford University Press, 2015) 87–90 at 89. 26 Recital 44 of the Maintenance Regulation states that it should, ‘amend Regulation (EC) No 44/2001 by replacing the provisions of that Regulation applicable to maintenance obligations. Subject to the transitional provisions of this Regulation, Member States should, in matters relating to maintenance obligations, apply the provisions of this Regulation on jurisdiction, recognition, enforceability and enforcement of decisions and on legal aid instead of those of Regulation (EC) No 44/2001 as from the date on which this Regulation becomes applicable’ (my italics). 27 Recital 10 of Regulation 1215/2012. ‘The scope of this Regulation should cover all the main civil and commercial matters apart from certain well-defined matters, in particular maintenance obligations, which should be excluded from the scope of this Regulation following the adoption of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations’ and continued to exclusion via Art 1(2)(e), ‘This Regulation shall not apply to: … maintenance obligations arising from a family relationship, parentage, marriage or affinity’ (my italics). 28 Art 5(2) remains relevant in the Lugano Conventions of 1988 and 2007 as the Lugano States are not ‘participating Member States’ for the purposes of the general operation of the EU Maintenance Regulation. Of the Lugano States only Norway (with reservations) is party to the 2007 Hague Convention: none are party to the 2007 Protocol. Specific parts of the Maintenance Regulation can include the Lugano States, eg Art 4(4).

264  The Maintenance Regulation It is certainly an obligation with contractual overtones concluded between two unmarried persons but are these facts solely determinative? It is suggested that this conclusion omits the essential fact that it is a nuptial agreement that is at issue. Even if formed prior to marriage a nuptial agreement is entered and its obligations assumed relative to the marriage: it can only be performed and enforced relative to the status changes consequent on that marriage and its potential end in divorce. Regardless of the side of the marriage on which the nuptial agreement occurs, it is artificial to pretend that it is unconnected with the marriage. It is therefore suggested that to the extent that it concerns a maintenance obligation any nuptial agreement belongs within the autonomous concept of a maintenance obligation in the Maintenance Regulation and not in Article 7(1) of the Brussels Ia Regulation.

II.  Differences in National Perspectives on What is Meant by ‘Maintenance’ Before proceeding, it may be useful to highlight a basic difference of meaning concerning ‘maintenance’. Though common law legal systems, especially the English legal system, typically regards a maintenance claim merely as a matter ancillary to a divorce of married persons that must be agreed or determined on a case-by-case basis, civil law legal systems may understand maintenance claims very differently. If the civil law legal system has domestic laws reflecting a matrimonial property regime this regime determines the post-divorce entitlements of the spouses removing the need to litigate these matters: though the parties may still disagree on the extent or composition of the relevant assets and incomes, the existence of a matrimonial property regime (and/or agreements relating to matrimonial property) obviate much of what the common law would be understood by a ‘maintenance’ claim. On the other hand, the civil law category of ‘maintenance’ is wider than the common law equivalent and often pursues its purpose, ie to provide a contribution towards the basic needs of the claimant (or to compensate the State for money it has already had to disburse for this purpose) rather differently via claims for relatively small sums. By way of illustration, French law29 allows maintenance claims not only between spouses (Articles 212 and 214 Code Civil) but also maintenance claims for the basic needs of housing, clothing and food (and for claims by children for education too) either by children claiming against their parents and/or grandparents. Claims are also allowed by parents against their children, grandchildren or great-grandchildren for comparable basic needs (not including education): maintenance obligations may also include a mother-in-law and also extend to 29 See W Pintens, ‘Marital Agreements and Private Autonomy in France and Belgium’ in JM Scherpe (ed), Marital Agreements and Private Autonomy in Comparative Perspective 1st edn (Oxford, Hart Publishing, 2012) 68–88.

Drafting the EC’s Maintenance Regulation  265 certain sons- or daughters-in-law.30 German law31 allows broadly similar possibilities of maintenance, eg maintenance may thus be due (and hence claimed under German law) from spouse to spouse and from parents to their children (§§1360, 1360a, 1361 BGB); if the spouses are divorced maintenance may be claimed to raise a child (§1570 BGB). When needed, maintenance may also be claimed from lineal relatives eg from children by their parents, from grandparents (or great-grandparents) by their grandchildren (or great-grandchildren), from grandchildren (or great-grandchildren) by their grandparents (or greatgrandparents), see §1601 BGB. There are no such rights for non-lineal relatives (parents-in-law, etc or step-children, etc). Adoption can also create such maintenance obligations, see §1751(4) BGB. An unmarried parent may be obliged to pay maintenance to the other parent, see §1615a BGB.32 In both Member States there may also be maintenance obligations associated with the provision of education to children and concerning care provided to the sick or elderly: such contributions also fall within the scope of the maintenance obligations of the Regulation. It follows that a reader from the common law may find aspects of the Maintenance Regulation confusing because the width of the claims it may permit may seem to attenuate its coverage of spouse to spouse claims which are themselves attenuated further by matters falling outside the Regulation, eg different Member State matrimonial property regimes and different possibilities for matrimonial property agreements.33 Though the Maintenance Regulation can and will facilitate the cross-border maintenance claim understood from either a stereotypical common law or a stereotypical civil law perspective, it always does so with reference to that which is possible domestically in the relevant legal system of the Member State of origin.34

III.  Drafting the EC’s Maintenance Regulation An examination of the available travaux préparatoires concerning the drafting of the EC Maintenance Regulation indicates a process unlike the drafting of any earlier EC private international law Regulation. The process involved financial claims of 30 Code Civil Arts 203, 205–07 and concerning adoptees Art 367. For more detail on French law see https://e-justice.europa.eu/content_maintenance_claims-47-fr-en.do?member=1 and generally Pintens (n 29). 31 See A Dutta, ‘Marital Agreements and Private Autonomy in Germany’ in JM Scherpe (ed), Marital Agreements and Private Autonomy in Comparative Perspective 1st edn (Oxford, Hart Publishing, 2012) 159–99. 32 See https://e-justice.europa.eu/content_maintenance_claims-47-de-en.do?member=1#toc_1 and generally Dutta (n 31). 33 Matrimonial Property Agreements and Registered Partnership Property Agreements are now provided with European Regulations that are discussed below in ch 8. 34 A comparative survey of the domestic laws and the extent of party autonomy current with the drafting of the Maintenance Regulation is provided in JM Scherpe (ed), Marital Agreements and Private Autonomy in Comparative Perspective 1st edn (Oxford, Hart Publishing, 2012).

266  The Maintenance Regulation a civil and commercial nature linked to developments in the negotiations by the Hague Conference, constrained by existing international conventions, and conditioned by ongoing post-Tampere intra-EC developments concerning the nature of private international law. Taken together these factors restricted the practical options, if not necessarily the inventiveness, of the Commission and presented the Member States with fewer opportunities than usual to dispute matters or to offer suggestions tending in a fundamentally different direction to existing provisions and the ongoing Hague Conference negotiations. Similar issues affected the European Commission’s management of the parallel negotiating process inside the EC: it had offered a Green Paper in 2004,35 advanced a discussion paper concerning two Regulations and a Directive36 for a meeting on 12 May 2005 but by the end of 2005 provided a proposal for a single Maintenance Regulation37 that was belatedly accompanied by a somewhat detached Impact Assessment.38 These actions provoked a range of comments and indeed commentaries from, inter alios, the Member States over 200639 concerning various intra-EC matters some of which the Hague Conference was debating and some of which it was no longer debating seriously (eg the abolition of exequatur and establishing multiple rules of direct jurisdiction).40 It was not however until the work of the Hague Conference was finalised in late November 2007 that the intra-EC negotiations began in earnest; the European Commission’s attempts at running intra-EC drafting negotiations on the planned Regulation in a semi-parallel rather than in a sequential manner have been criticised in various senses by academics involved in the EC and Hague negotiations.41 Despite such criticisms, after the conclusion of proceedings with a Convention and Protocol in late November 2007 the EC’s progress to an adopted EC Maintenance Regulation in 2008 was swift. Over the course of 2008 11 Presidency texts were produced, culminating in the text for adoption presented on 15/16 December 2008.42 By 18 December 2008 the new EC Maintenance Regulation was published.

35 Commission Green Paper of 15 April 2004 on maintenance obligations COM(2004) 254 final. 36 Mentioned but not otherwise referenced by Hellner as proposing two separate Regulations for applicable law and recovery of maintenance claims plus a Directive to harmonise common standards, M Hellner, ‘The Maintenance Regulation: A Critical Assessment of the Commission’s Proposal’ in European Challenges in Contemporary Family Law (Cambridge, Intersentia, 2008) 343 at fn 3. 37 Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations SEC (2005) 1629 COM (2005) 649 final. 38 Impact Assessment SEC (2005) 1629. 39 Note from General Secretariat 25 January 2007, 5318/07 JUSTCIV 5 (hereafter: Collated MS Responses) which collates Member State responses with reference to each draft article from the 2005 Commission Proposal over its 349 pages. 40 Beaumont (n 19) mentions direct rules of jurisdiction and the abolition of exequatur at 514. 41 Hellner (n 36) at 377–78 on the premature parallelism of the Commission and Beaumont (n 19) 545 offering a later summary. 42 Note from General Secretariat of the Council of 15 December 2008 17102/08 JUSTCIV 262.

Drafting the EC’s Maintenance Regulation  267 The Regulation also provided a means to accommodate the UK’s eventual wish to ‘opt-in’43 to the parts of the EC Regulation reflecting the 2007 Convention (once matters had concluded at the Hague), and also for a more limited involvement along different lines for Denmark.44 Both Member States had stayed technically outside the most direct form of involvement with the intra-EC proceedings as each wished to avoid the proposed harmonisation of the applicable law rules initially mooted by the Commission and each also preferred to engage directly with the Hague Conference negotiations on the Convention as independent States. To accommodate the UK, and to an extent Denmark, the Maintenance Regulation, which not only proposed to include but also anticipated the Protocol’s harmonisation of applicable law rules (by synchronising its internal application in the EC with the general application of the Maintenance Regulation from 18 June 201145 rather than waiting until the Protocol itself came into force) was designed to allow the UK and Denmark to participate as it allowed each to continue to apply their respective domestic laws to cases involving maintenance heard by their own courts. Because of this practical concession on applicable law, the Maintenance Regulation features two different recognition and enforcement systems for foreign maintenance decisions arising on or after 18 June 2011. For the 26 States bound by the 2007 Protocol via Article 15 of the Regulation, Article s17–22 of the Regulation apply an exequatur-free recognition and enforcement system to maintenance decisions within the EU; if however the maintenance decision comes from the UK or Denmark, the only Member States not bound by the 2007 Protocol, and goes to a Member State that is so bound by the Protocol, Articles 23–38 of the Regulation apply an ‘exequatur-lite’ system, including a public policy exception,46 to intraEU maintenance decisions received from the UK or Denmark by one of the other 26 Member States.47 All Member States must apply Articles 39–43 the Section 3 Common provisions. Where the UK’s ‘approval’ of the 2007 Hague Convention but ‘non-approval’ of the 2007 Hague Protocol leaves us, is in the somewhat counterintuitive 43 The subtleties and the details of the UK’s mid-January 2009 opt-in to the Regulation are explained by Beaumont (n 19) 515 fn 12. The opt-in was recorded by Commission Decision 2009/451/EC of 8 June 2009, OJ L 149, 12.06.2009, p. 73. 44 According to the EU’s E-Justice Portal, ‘Denmark confirmed its intention to implement the content of the Regulation, to the extent that the Regulation amends Regulation (EC) N° 44/2001, by means of a declaration (OJ L 149, 12.06.2009, p. 80) based on a parallel agreement concluded with the European Community (and) … its intention to implement the content of the Implementing Act of 10 November 2011 establishing Annexes X and XI to Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. (DK notification. OJ L195, 18. 7. 2013, p.1)’. https://e-justice.europa.eu/ content_maintenance_obligations-355-en.do. 45 By Art 4(2) of Council Decision of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations [2009] OJ L331/17. 46 Beaumont and McEleavy (n 2) suggest, presumably on the basis that the public policy exception is unlikely to be applied, that the distinction between the two different systems is more apparent than real, see para 19.44, 907. 47 A regretful view of this bifurcation is presented in Beaumont and McEleavy (n 2) para 19.41 at 903.

268  The Maintenance Regulation position that though the UK’s legal systems continue to apply their domestic laws to any maintenance case brought before a ‘UK’ court, they must receive, recognise and enforce foreign maintenance orders arising on or after 18 June 2011 from the other 26 EU Member States in accordance with Articles 17–22, ie without any exequatur stage. Only if the incoming authentic instrument maintenance decision comes from Denmark or concerns a matter drawn-up before 18 June 2011 will the relevant UK legal system apply the system of recognition and enforcement provided by Articles 23–38. The UK’s legal systems should never use the Regulation’s ‘exequatur-lite’ recognition and enforcement system for incoming applications concerning authentic instruments drawn-up after 18 June 2011.48 On the other hand, any maintenance decision originating from a UK legal system, whether by reason of it being based on an authentic instrument drawn-up on or before 18 June 2011 or subsequent to that date but by reason of being from a non-Hague 2007 Protocol party, will be treated by the other 26 EU Member States in their application of the Maintenance Regulation as subject to the ‘exequatur-lite’ system of recognition and enforcement provided by Articles 23–38.49 The EU signed the 2007 Convention on 6 April 2011 and approved it on 9 April 2014: the Hague Convention entered into force on 1 August 2014. The 2007 Protocol was signed and approved by the EU on 8 April 2010 and was (voluntarily) applied by it from 18 June 2011: the Protocol actually entered into force on 1 August 2013. The Hague Convention provisions interact with the Regulation according to the usual internal/external distinction: thus for intra-EU matters (which are the only matters considered in this chapter) only the Maintenance Regulation applies,50 but, when there is a third-state scenario relevant to the 2007 Convention, the relevant Member State will instead apply the Convention to covered maintenance claims involving relevant third-state parties.51 The issues of applicable law dealt with by the 2007 Protocol are ‘built-in’ to the Regulation via Article 15 for the EU States that are bound by the Protocol and have been applied on that basis within the EU since 18 June 2011 (subject to the intra-Regulation accommodations for the UK position and the Danish position as non-participants to the 2007 Protocol).52

48 Walker and Beaumont found that initially it was assumed by some UK authorities that the exequatur-lite system also applied to all UK matters, Lara Walker and Paul Beaumont, ‘Empirical Study on the Early Operation of the EU Maintenance Regulation’ in Beaumont, Hess, Walker and Spancken (eds) (n 3) 337 at 361. 49 Beaumont (n 19) 509. A UK to Denmark decision would be treated similarly. 50 Art 16 and Art 69(2) MR. 51 www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1109&disp=resdn. 52 www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1065&disp=resdn. Also, Beaumont (n 19) 514 explaining the separation of applicable law into an independent Protocol as a means of maximising the possibility for participation in the Convention of the many non-EC States who were unwilling to agree to harmonised applicable law rules.

The Maintenance Regulation and Authentic Instruments  269

IV.  The Maintenance Regulation and Authentic Instruments Just as the intentionally undefined concept of ‘maintenance’ varies from one EU Member State to another,53 so does the relevance of authentic instruments to any permitted or feasible arrangements concerning ‘maintenance obligations’. If, as suggested by Pintens and Dutta respectively concerning French Law and German Law, the domestic matrimonial property regime(s) of the Member State of origin adequately provide for the satisfaction of most maintenance obligations between divorcing spouses, it is unlikely that authentic instruments will be required routinely in this context.54 Thus though a Member State legal system that features authentic instruments will probably allow its notaries the technical ability to drawup authentic instruments to record agreements between private parties concerning the existence and quantification of mutual maintenance obligations, the use of such authentic instruments may be somewhat atypical, eg by being associated with high-net-worth individuals.55 If the notary is to be involved, also potentially in the role of a mediator, the maintenance obligations in question must be capable of private agreement/declaration.56 It follows that the role of notaries in generating authentic instruments regarding maintenance obligations is one that varies between the Member States: the notarial role in Germany seems greater than the notarial role in France and the other Member States where maintenance matters proceed via the courts and or via other official bodies.57 As many maintenance claims originating from a civil law legal system will be for small sums of money deemed due by operation of personal status law (ie parent to child, spouse to spouse, etc) they do not positively require notarial involvement to create the maintenance obligation. Though since the 2008 Mediation Directive there is a potential role for notarial mediation58 in this context, such maintenance agreements that come before notaries and are thereafter noticeable to academic commentators will tend to concern the better-off

53 The width of the term ‘Maintenance obligations’ is referred to in this chapter above at s III. 54 See Pintens (n 29) 68–88 and Dutta (n 31) 159–99. 55 The State may of course encourage the use of the notary by fixing lower notarial fees for specific matters or by exempting certain matters (eg concerning minors) from any notarial fee. 56 Not all maintenance obligations may be so easily accommodated, eg those arising from the State caring for an adult child’s elderly parents. In this context another public official than the notary may be more appropriate. 57 For an overview of the pre-Regulation position on maintenance see the now obsolete resource covering most Member States at http://ec.europa.eu/civiljustice/maintenance_claim/maintenance_ claim_bel_en.htm. 58 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters OJ L 136, 24.5.2008, 3–8. Art 6(2) refers to authentic instruments as one means of rendering the written agreement reached by mediation ‘enforceable’ under the law of the place in which this is requested.

270  The Maintenance Regulation members of society who can afford to litigate (or enforce) the ‘maintenance issues’ they addressed earlier via a notarial prenuptial agreement. Once again the influence of the relevant matrimonial property regime in the Member State of origin is relevant in this context as it will affect the parameters of that which is feasible via the authentic instrument.59 Concerning the other means of achieving an authentic instrument, the assistance provided by other official bodies such as the child welfare office (Jugendamt) found in German law and Austrian law, the Belgian Service des créances alimentaires or the Spanish ‘Maintenance Payment Guarantee Fund’, etc,60 or authentic instruments achieved via mediation could lead to an agreement that could (but need not) be classed as a maintenance authentic instrument. Assuming the creditor obtains either an Article 2(1)(3)(a) notarial authentic instrument or another form of authentic instrument from a public office via Article 2(1)(3)(b), the maintenance obligation it contains is to be recognised and enforced across the participating Member States via the appropriate Maintenance Regulation provisions. Such ‘enforcement’ may proceed by the creditor, with the relevant forms and supporting documentation all completed, directly petitioning the appropriate enforcement authority (eg the relevant court) in the Member State of enforcement, or it may proceed from the creditor approaching the Central Authority in the Member State of origin.61 In outline terms the latter possibility involves the maintenance creditor seeking payment in completing the relevant parts of an appropriate standard form (chosen from the forms most recently annexed to the Regulation) and supplying the specified documentation (eg an extract from an authentic instrument as supplied by a notary or other official body, etc) then sending this information to the central authority in the Member State of origin: this authority completes the Annex form and transmits it to an equivalent central authority in the enforcement venue which then either itself enforces or distributes the task of ‘enforcing’ to a competent domestic enforcement authority, prior to what an optimist will assume will be the swift transmission of the maintenance claimed back to the claimant.62

59 Matrimonial property is outside the scope of the Maintenance Regulation. 60 The roles of each body differ but the creditor is often assisted either by the intervention of the official body on behalf of the children entitled to receive maintenance or by such assistance plus the payment of ‘advance maintenance’ eg see answers to questions 12 and 13 for the different Member State legal systems provided by https://e-justice.europa.eu/content_maintenance_claims-47-es-en. do?member=1. 61 The competent enforcement authorities designated within a given Member State are, unsurprisingly, often courts; see the finder tool available at https://e-justice.europa.eu/content_maintenance_ obligations-355-en.do. 62 The involvement of central authorities is set out in Chapter VII of the Regulation but is not explored further in this chapter, see Walker (n 2) 129–36 and ch 10 generally for information.

The Maintenance Regulation and Notarial Authentic Instruments  271

V.  The Maintenance Regulation and Notarial Authentic Instruments, Similarities and Differences with the Regulations Considered so Far Though it is required that for the intra-EU enforcement of EU maintenance obligations concluded before 11 June 2011 the Maintenance Regulation is used instead of the Brussels I Regulation or the EEO Regulation, the Maintenance Regulation is more than a replacement of the earlier alternatives to enforce judgments, authentic instruments and court settlements across EU borders. What sets it apart from the Regulations and Conventions considered in the chapters above is its inclusion of the ‘machinery’ necessary to allow the cross-border cooperation of the central authorities in the participating Member States. Though variable domestic implementation provisions connected with pre-existing national structures may detract from the ideal forms of such cooperation; the fact that such cooperation is designed to be possible changes the nature of the Regulation in a significant manner by deepening the level of cross-border procedural integration in the context of maintenance claims. This is most apparent for those maintenance obligations involving recurring payments over substantial periods of time: the Maintenance Regulation can interact in numerous ways with the cross-border enforcement of maintenance obligations potentially facilitating the variation of maintenance orders in the enforcement venue in response to changes in the circumstances of the debtor or the creditor(s). In the context of its authentic instruments the Maintenance Regulation differs from the Regulations and Conventions considered in previous chapters as its maintenance obligations tend to be construed in more ‘relational’ terms than according to a discrete contract paradigm. Such maintenance authentic instruments tend to proceed from circumstances very different from those concerning the undertaking of civil and commercial debt obligations from a bank or other lender: in the context of maintenance arrangements the parties are less likely to routinely exhibit such inequality of bargaining positions as they are essentially agreeing to allocate their own resources in response to their current and anticipated familial maintenance obligations. A recurring criticism in this book concerns what has been suggested to be inadequate judicial supervision of notarial authentic instruments once exported from the Member State of origin. This criticism is levelled at the private international law systems that have been put in place by the Regulations that, in the author’s opinion, have not adequately reflected the differences between a judgment and an authentic instrument. It has been objected that the cross-border enforcement possibilities for authentic instruments in the forerunners to the Brussels Ia Regulation and particularly in the EEO Regulation, are often equated with judgments such that two quite different things, authentic instruments and judgments, are treated as essentially similar during cross-border enforcement with consequences that redound, potentially unfairly, to the disadvantage of many

272  The Maintenance Regulation authentic instrument debtors who are required to either pay-up or to try to fight a non-judgment enforcement title in two legal systems simultaneously. The foregoing concerns are however less acute in the context of the Maintenance Regulation, partly because such judgments, settlements and authentic instruments are commonly awarded on a continuing ‘pro-tem’ basis to reflect the notional potential for the relevant circumstances giving rise to the maintenance obligation to change, and because of an inherent flexibility in the agreed obligation that will usually yield to a new convincing demonstration of need as this changes the nature of the obligation that the enforcement title previously described. The Maintenance Regulation, following Article 10(1)(f) and Article 10(2)(c) of the 2007 Hague Convention, is designed to allow the possibility of variation in the enforcement venue, whether to relieve the creditor or the debtor. General criticisms based on a lack of regulatory oversight for the authentic instrument once it leaves the Member State of origin are, at least in theory, somewhat attenuated in the context of the Maintenance Regulation. Howsoever this may be, the Maintenance Regulation is not above criticism for under or over ambition63 or impracticality.64 The ‘implementation’65 required of the Member States by the Regulation has led to preliminary references condemning various aspects of such implementation by different Member States.66 Equally, the general relevance of the possibilities allowed by the Regulation for notarial and other authentic instruments can be questioned, a domestic role exists in Germany but such a role has historically been restricted to courts in many other Member States (eg the Francophone States, Italy, etc). Though notaries and other creators of such authentic instruments are well-placed to assist in an equitable and realistic arrangement or mediation of that which is available for the maintenance at hand, this role is a developing one across the EU67 and it is seemingly presently restricted to notarial practice concerning atypical cross-border cases featuring the assets of high-net-worth individuals and their children. It remains to be seen whether or how this may change in the future.

63 D McClean, ‘Maintenance Surveyed’ (2017) Journal of Private International Law 219 at 220 and 229. 64 G Smith, D Hodson and V Le Grice, ‘Brexit and International Family Law: a Pragmatic Approach to Divorce and Maintenance’ (2018) Family Law 1554 at 1557–58 criticising the Regulation’s lis pendens provisions. Also see critique by L Walker, ‘Problems for Maintenance Creditors’ in P Beaumont, M Danov, K Trimmings and B Yuksel (eds), Cross-Border Litigation in Europe 1st edn (Oxford, Hart, 2017) 771 at 781–83. 65 See Recitals 31–33 and discussion in Hess and Spancken (n 3) from 386 generally; Walker (n 2) 199. 66 Case C-400/13 Sanders v Verhaegen and Case C-408/13 Huber v Huber ECLI:EU:C:2014:2461; Case C-283/16 MS v PS ECLI:EU:C:2017:104. 67 Walker (n 2) at 98 fn 16 records that in the first year of the Maintenance Regulation’s operation the figure for enforcement applications based on authentic instruments and court settlements amounted together to only circa two per cent of the total; the majority of applications were based instead on decisions from courts or domestic authorities.

Authentic Instruments in the Drafting of the EC Maintenance Regulation  273

VI.  Authentic Instruments in the Drafting of the EC Maintenance Regulation Authentic instruments featured in the 2005 Commission Proposal in draft Recital 20 which recorded that ‘Authentic instruments and agreements between parties which are enforceable in a Member State should be treated as equivalent to decisions’.68 Draft Article 2(4) provided a definition of the term ‘authentic instrument’ that essentially borrowed the definition of ‘authentic instrument’ found in Article 4(3) of the EEO Regulation. Draft Article 37 provided for the enforceability and recognition of authentic instruments (and agreements) and draft Article 38 provided for their recognition and enforcement. Other than predictable imprecision in the initial draft text, the novelties were: the absence of court-approved settlements, the introduction of the enforceable ‘agreement’; the short-lived draft Article 38(2) provision, allowing the maintenance creditor to seise a court where he was habitually resident to allow him to make use of the hopelessly impractical cross-border ‘garnishment’ and ‘account-freezing’ provisions mooted in draft Articles 34–35;69 and the introduction of a special form of automatic recognition in connection with the ‘monetary’ enforcement of authentic instruments and ‘agreements’ concerning maintenance. Such recognition was novel in that it was now being connected to a financial claim but something very like it had already featured in the non-financial context of Article 46 of the Brussels IIa Regulation.70 According to the available materials, all the Member States who commented on the 2005 proposal during 2006, accepted (or did not dispute) that there had to be a role for authentic instruments in the new Regulation; some also wished for the express inclusion of ‘court settlements’.71 What was however more controversial, prompting many to request greater clarity from the Commission, was the inclusion of undefined enforceable ‘agreements’ in the proposed Regulation.72 Though all Member States seem to have seen the cost and time advantages of preserving noncontentious routes to an agreement on maintenance that could then be enforced across internal borders in the EC by a creditor, or the authorities of the Member State in which the creditor was habitually resident, few were keen to attempt to realise such advantages by equipping unsupervised private agreements on maintenance obligations with a cross-border exequatur-free enforceability based on 68 My italics. 69 Draft Art 38(2) was deleted as early as December 2006 because draft Arts 34–35 were also deleted following opposition by ‘a large majority’ of the Member States as recorded in the Finnish/German Presidency Text 20 December 2006 16830/06 JUSTCIV 287 at 29. 70 Commission’s 2006 Commentary on its own 2005 Proposal 19 May 2006 9620/06 JUSTCIV 133 at 9. 71 Collated MS Responses (n 39): Belgium at 275; Czech Republic at 47 and 278; Germany at 278; Ireland at 49; Netherlands at 50; Poland at 280; and Romania 281. 72 Collated MS Responses (n 39): Belgium, Czech Republic and Latvia all at 275; Luxembourg and Austria at 276; Slovenia at 277; Estonia and Ireland both at 279; Malta, Netherlands and Poland all 280; and Portugal 281.

274  The Maintenance Regulation assumed enforceability in the (assumed) Member State of origin.73 Though the Nordic Member States that featured something similar to such an arrangement could point to good practice and control mechanisms inter se, the wider potential for the sudden pan-EC empowerment of such private agreements to lead to misuse was clear; delegations noted that the rush to improve cross-border enforcement possibilities for judgments, authentic instruments and agreements must not lead to a law placing undue trust in the motives of the maintenance creditor, nor to a law unduly disadvantageous to the maintenance debtor by reason of it imposing unopposable cross-border procedures.74 The Member State concerns were fixed on the possibilities and unintended consequences associated with: a) taking a very wide and unrestricted notion of ‘maintenance’ (a distinctly variable legal concept); b) of not identifying the creditor and the debtor narrowly (opening up the potential for the reversal of the stereotype claim that would allow the better off party to obtain a declaration that she had no maintenance liability to her former husband and then to enforce it against him if he then tried to alleviate his impecuniosity via a maintenance claim); and c) of proposing exequatur-free recognition and enforcement for all proposed enforceable titles eg judgments, authentic instruments and ‘agreements’. ‘Agreements’ was an undefined term in the 2005 Commission proposal, some delegations appear to have assumed (wrongly) that this was a drafting error in connection with a term that was interchangeable with the missing title normally represented by ‘court settlements’75 in European private international law Regulations. ‘Agreements’ remained a focus for controversy because they were potentially enforceable without the involvement of a court, a public body or a notary. For some delegations such undefined ‘agreements’ appeared particularly ripe for misuse by either party to a cross-border maintenance obligation: whether by assisting the forgery of an obligation that the debtor had not agreed to, allowing delaying tactics or by requiring the enforceable preclusion of a maintenance claim entirely.76 73 Note from Austrian Delegation 28 November 2006 15856/06 JUSTCIV 260 para 79, 29; Note from Romanian Delegation, 8 January 2006 15856/06 JUSTCIV 260 at 13; Note from Luxembourg Delegation 8 December 2006 15856/06 JUSTCIV 260 1; Note from German Delegation, 27 November 2006 15856/06 JUSTCIV 260 at 1; Note from Swedish Delegation 28 November 2006 15856/06 JUSTCIV 260 at 11. 74 Note from Austrian Delegation 28 November 2006 (n 73) noting that abandoning exequatur was not without risk, para 24 at 8; Note from Luxembourg Delegation 8 December 2006 1 s­ tressing the need for an even-handed approach; to similar effect see Note from German Delegation, 27 November 2006 at 2. 75 It is unclear to the author whether this confusion of terms (‘agreement’ and ‘settlement’) is merely linguistic or also relates to the ‘judicially approved settlements’ with which enforceable authentic instruments had previously been associated with by Art 51 of the Brussels Convention and Arts 58 and 59 of its successor Regulations. 76 A strong defence was mounted by the Nordic delegations, see Note from Swedish Delegation 28 November 2006 at 11; and the combined Note from Danish, Finnish and Swedish delegations 1 October 2008 13505/08 JUSTCIV 189 (including an unofficial English translation of the relevant Nordic provisions).

Authentic Instruments in the Drafting of the EC Maintenance Regulation  275 The different responses to such ‘agreement’ related issues, arising from the Commission’s proposed equivalence with decisions/authentic instruments in terms of cross-border recognition and enforcement of maintenance obligations, overshadowed any consideration of authentic instruments. Though authentic instruments were in the same draft article(s) as ‘agreements’, at no point in the negotiations were they a comparable pressing concern for delegations now familiar with this legal institution, aware of its role in cross-border enforcement of maintenance obligations since the time of the Brussels Convention and more recently in the context of ‘uncontested claims’ by the EEO Regulation. Authentic instruments also featured in the Hague Conference’s international negotiations on what would become the 2007 Convention (as Article 3 of the 2007 Convention as ‘Maintenance Arrangements’), albeit provoking sufficient bemusement and hostility from non-civil law legal systems to eventually warrant the possibility of making a reservation by Article 30(8) of the Convention to avoid the obligation to treat such Maintenance Arrangements as enforceable.77 Within the EC however, the delegations appear to have been reassured by the familiar fact that the enforceability of an authentic instrument arises from the intervention of a public body or officer in the Member State of origin: this conclusion is drawn from the frequency with which the issue is raised in comparisons between the two concepts that are usually78 adverse to the novel and undefined ‘agreement’ concept. Though it is not correct to say that all the delegations were unconcerned by the prospect of maintenance authentic instruments circulating in the EU without any exequatur stage, the focus of such concerns as there were fell mostly either on the novel ‘agreement’ enforcement title or on the possibilities offered by the Regulation itself rather than upon the authentic instrument as an included enforcement title. The thinking of several delegations is revealed by the responses of France, Luxembourg and Germany that each independently favoured the specific retention of a public policy exception for the Commission’s 2005 draft proposals for the enforceability and enforcement of authentic instruments and particularly for ‘agreements’ in the context of cross-border maintenance obligations.79 Concerning ‘agreements’ the French delegation went even further and proposed a new article to afford the enforcement venue the explicit option of refusing enforcement of a private agreement that was forged or had been obtained by fraud.80 77 Para 72 of the Alegría Borrás and Jennifer Degeling, Explanatory Report on Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance 2013 www.hcch.net/en/publications-and-studies/details4/?pid=4909, hereafter Borrás and Degeling report. 78 The Comments of the Swedish delegation on this point being a notable exception, see Collated MS Responses (n 39) 285. 79 Private agreements proved a thorny issue for the Hague Conference too as is made plain by the references to lengthy discussions and the eventual provision of a dedicated reservation via Art 30(8) to remove the need for the reserving state to recognise or enforce ‘maintenance arrangements’: see Borrás and Degeling report (n 77) para 72. 80 Comments from French Delegation of 29 November 2006 15856/06 JUSTCIV 260 at 15.

276  The Maintenance Regulation On the wider issue of public policy concerning recognition and enforcement of all maintenance obligation related ‘enforcement titles’, it is interesting that by the end of 2006 12 of the delegations had expressed a view unambiguously in favour of retaining a general express public policy exception against enforcement (two were undecided). The French,81 Luxembourg,82 Portuguese,83 Swedish84 and the German85 delegations each responded to the Commission’s general 2005 proposal on exequatur-free cross-border enforcement of judgments, authentic instruments and ‘agreements’ concerning maintenance obligations by stressing the need for the enforcement venue to retain a public policy exception to the general obligation to recognise and enforce the relevant incoming enforcement title. The delegations did not seek to differentiate the applicability of this suggested public policy exception between intra-EC and ‘external’ cases and proposed instead that it should apply generally to the recognition and enforcement of all cross-border maintenance obligations under the new Regulation. This is interesting as the manner in which matters then developed led to the Hague Convention of 2007 continuing to feature its express public policy exception at Article 22(a), whereas the intra-EC operation of the EC Maintenance Regulation dispensed with an express public policy exception for its Chapter IV Section 1 cross-border enforcement functions unless the decision, authentic instrument or court settlement originated from a Member State not bound by the 2007 Hague Protocol. It seems likely that dispensing with the public policy exception for the inner-circle of intra-EC cases was intended to indicate that the EC could achieve a depth of systemic integration that was not open to the HCCH.

VII.  Reaching the Final Text of the Regulation Concerning Authentic Instruments The first changes to the 2005 Proposal visible in the available Presidency texts occur in the draft text at the point of the handover text by the Finnish Presidency to the German Presidency issued on 20 December 2006. Court settlements, modelled on Article 58 of the Brussels I Regulation, are included in the definitions and in a new draft Article 38a, but not in a lightly amended draft

81 Comments from French Delegation of 29 November 2006 and note their proposal for draft Art 38(2), allowing enforcement to be refused or suspended if contrary to public policy in the enforcement venue at 14–15. 82 Note from Luxembourg Delegation 8 December 2006 generally at 8 and for authentic instruments at 12. 83 Note from Portuguese Delegation of 28 November 2006 15856/06 JUSTCIV 260 at 2 and 6 generally. 84 Note from Swedish Delegation 28 November 2006 generally at 6. 85 Note from German Delegation, 27 November 2006 generally at 18 and for authentic instruments/ judicial settlements at 36–37.

Reaching the Final Text of the Regulation Concerning Authentic Instruments  277 Article 37; draft Article 38 lost its novel second paragraph and enforcement was modelled on the Brussels I Regulation’s provisions for authentic instruments, thus enforcement of the Article 37 authentic instruments and agreements was to proceed ‘as appropriate’ with reference to earlier Regulation enforcement provisions, a public authority in the Member State of origin was to issue an Annex II standard form to any interested party, and a public policy exception was included to allow a refusal of enforcement in the enforcement venue.86 The text of draft Article 37 as at 28 June 2007, as the German Presidency handed over to the Portuguese Presidency, was amended to become a list ­enumerating the three enforcement titles capable of recognition and enforcement (court settlements, authentic instruments (both of which had to be enforceable in ‘a Member State’)) and ‘agreements between parties’. The ‘agreement’ title was drafted to require official involvement in either its creation or subsequent official approval and was also required to be enforceable in the Member State of origin.87 The Portuguese to Slovenian Presidency text of 11 January 2008 was drafted with reference to both the intra-EC negotiations over the previous six months and in light of the Hague Conference’s finalised 2007 Convention and Protocol (which had been concluded on 23 November 2007). For authentic instruments (and for court settlements) the most relevant change was the excision of the dedicated public policy exception.88 The troublesome enforceable ‘agreement’ title was also deleted from the draft at this juncture such that thereafter only enforceable judgments, court settlements and authentic instruments were included. By the next Presidency handover in June 2008, though Articles 37 and 38 were still separate, the text in Article 37 approached the final text found in Article 48(1) of the concluded Regulation.89 By the end of September 2008 the definition text was also essentially in final form and the surviving parts of draft Articles 37–38 had been merged into one article. The second paragraph of new draft Article 37 now read, ‘The provisions of this Regulation shall apply as necessary to court settlements and authentic instruments’.90 In 2006 the German delegation had objected that the usual ‘as appropriate’ inclusion was too uncertain in this context; as necessary was provided as an alternative formulation.91 The properly numbered authentic

86 Note from Finnish and German Presidencies of 20 December 2006 16830/06 JUSTCIV 287 at 29–30. 87 Note from German and Portuguese Presidencies 28 June 2007 11281/07 JUSTCIV 180 at 30–31. 88 Note from Portuguese and Slovenian Presidencies of 11 January 2008 5169/08 JUSTCIV 5 at 37–38. 89 Note from Slovenian and French Presidencies of 23 June 2008 10700/08 JUSTCIV 123 at 37–38 and Note from Presidency of 23 July 2008 11917/08 JUSTCIV 147 at 37. 90 My italics. Note from Presidency of 26 September 2008 13583/08 JUSTCIV 198 at 36–37, revising the text included in the Note from Presidency of 15 September 2008 13024/08 JUSTCIV 182 at 48. 91 Note from German Delegation, 27 November 2006, commenting on draft Art 38 at 37 and noting that ‘as appropriate’ was too imprecise as it left open the question of whether and if so through which procedure one of the involved parties may obtain a full review. The new German version of the word is ‘erforderlich’, ie ‘necessary’, and the French text uses the phrase ‘en tant que de besoin’ which may be translated as ‘as and when necessary’.

278  The Maintenance Regulation instrument and Regulation text were reached by 15/16 December 200892 and the final Regulation followed a few days later.93 The following coverage sets out the provisions of the Regulation relevant to authentic instruments and other aspects of Regulation authentic instruments that are unique or otherwise worthy of note. The requirements for the Regulation to allow what it regards as an authentic instrument to be ‘recognised’ and enforced are then laid out. Given a paucity of relevant case law the chapter closes with an overview of the developing English reaction to incoming maintenance obligations brought in the context of foreign prenuptial agreements as this is a developing context in which the use of foreign notarial authentic instruments remains probable.

VIII.  Article 48 Court Settlements and Authentic Instruments The main provision of the EEO Regulation concerning authentic instruments is Article 48 in Chapter VI. Article 48 Application of this Regulation to court settlements and authentic instruments 1. 2. 3.

Court settlements and authentic instruments which are enforceable in the Member State of origin shall be recognised in another Member State and be enforceable there in the same way as decisions, in accordance with Chapter IV. The provisions of this Regulation shall apply as necessary to court settlements and authentic instruments. The competent authority of the Member State of origin shall issue, at the request of any interested party, an extract from the court settlement or the authentic instrument using the forms set out in Annexes I and II or in Annexes III and IV as the case may be.

Article 48(1) emphasises the need for the authentic instrument or settlement to be enforceable in its Member State of origin; ie according to domestic law where the authentic instrument was drawn-up, registered or otherwise established. The meaning of ‘enforceable’ is partly obvious, before cross-border enforceability is possible it must be possible to enforce the content of the authentic instrument or settlement in the Member State of origin. As however Article 48(1) also envisages ‘recognition’ it must also be that the requirement of domestic ‘enforceability’ includes a comparable domestic potential for the recognition of the content of the

92 Council Regulation 16 December 2008 15736/08 JUSTCIV 245. 93 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations OJ L 7, 10.1.2009, p 1–79.

Article 48 and Recognition  279 authentic instrument, particularly if only recognition is sought.94 The drafting of Article 48(1) indicates that a condition of domestic ‘enforceability’ in the senses above is a condition precedent for the cross-border recognition and or enforcement of a maintenance obligation in accordance with the Regulation. Sundry provisions in the three sections of Chapter IV of the Regulation support this last conclusion. It follows that if domestic ‘enforceability’ is suspended or otherwise withdrawn in the Member State of origin, cross-border maintenance claims via an Article 48 authentic instrument must also be treated as suspended or withdrawn. As is common, the Maintenance Regulation provisions concerning the cross-border possibilities of authentic instruments, etc, are in a separate chapter (Chapter VI) after the Chapter IV provisions on cross-border recognition and enforcement and Chapter V provisions on legal aid. Thus, an authentic instrument that satisfies the Chapter I requirements (Article 1 scope of application; and Article 2 definitions) that falls within the temporal application of the Regulation and is enforceable in its Member State of origin shall be recognised in another Member State and will be enforceable there, ‘in the same way as decisions, in accordance with Chapter IV’. If the authentic instrument is not enforceable in the Member State of origin it cannot benefit from Article 48 and will, at best, be foreign documentary evidence. Though less ‘novel’ than the EEO Regulation, the Maintenance Regulation reveals a measure of novelty in requiring via Article 48 that authentic instruments (and court settlements) be recognised in other Member States. The Regulation is also novel in departing from the usual instruction to construe its Chapter IV provisions concerning the recognition and enforcement authentic instruments ‘as appropriate’ as Article 48(2) instead instructs that the relevant Chapter IV provisions shall apply ‘as necessary’. The novel recognition and the scope of the ‘as necessary’ provision are considered now before the procedure of the Regulation is set out.

IX.  What does Article 48(1) and the Maintenance Regulation Mean by the ‘Recognition’ of Authentic Instruments? The Regulation employs the somewhat jarring concept of ‘recognition’ concerning cross-border authentic instruments (and court settlements)95 containing maintenance claims and does so largely as a consequence of the Commission’s 94 This persuasive argument was advanced, with authorities, by Magnus in the different context of the Brussels IIa Regulation but it is suggested to be just as applicable in the present context, U Magnus, ‘Art 46’ in U Magnus and P Mankowski, Brussels IIbis Regulation 2nd edn (Cologne, Verlag Otto Schmidt, 2017) para 11 at 416. 95 Recognition of settlements is not addressed.

280  The Maintenance Regulation laudable desire to break-down unnecessary barriers to the cross-border use of such enforcement titles.96 As the 2005 Proposal makes plain, the Commission tended to conceptualise Member State requirements that restricted what it understood by ‘recognition’ as ‘intermediate measures’ of the exequatur process that it wished to abolish and automate. To this end the Commission’s desire to facilitate the effective cross-border circulation of enforcement titles among the Member States extended to potentially adopting ‘ancillary measures of mutual recognition aiming at “seeking to make more efficient the enforcement, in the requested State, of judgments delivered in another Member State”’.97 The Commission frequently proposed98 to extend such proposals to cover authentic instruments despite Member States and others pointing out the doctrinal and practical difficulties of introducing a new European concept called ‘recognition’ to aspects of the private international law concerning cross-border authentic instruments given the existence of another recognition concept of long standing and independent relevance only for judgments and other sovereign acts which was fundamentally unsuited for application by extension to cross-border authentic instruments. The basic objections to speaking of the recognition of a foreign authentic instrument in private international law arise because recognition, and the associated establishment of conclusive and or preclusive legal effects concerning a juridical act, is technically reserved for foreign judgments and sovereign acts.99 Authentic instruments are not subject to such recognition or recognition procedures because nothing in the course of their drawing-up/registration/establishment conclusively determines either their instrumentum or their negotium in a definitive sense comparable with the judicial determination of a final enforceable judgment. The possibilities of challenging either the instrumentum or the negotium of an authentic instrument make this lack of conclusiveness plain. An instrumentum challenge that succeeds removes the ‘status’ of authentic instrument and a negotium challenge that succeeds will either change or dismiss the maintenance obligation that the authentic instrument was previously presumed to present.100 For legal orthodoxy 96 COM (2005) 649 final at 2 and generally. 97 ibid. 98 As well as the successful inclusion of recognition in the Maintenance Regulation, the Commission’s proposal to recast the Brussels I Regulation and the negotiation of the Succession Regulation would each see similar (unsuccessful) proposals by the Commission to extend recognition to cross-border authentic instruments to somehow ‘simplify’ the cross-border circulation of authentic instruments. 99 H Gaudemet-Tallon and M-E Ancel, Compétence et Exécution des Jugements en Europe 6th edn (Paris, LGDJ, 2018) at para 517 and fn 18 noting that French doctrine is unanimous on the impossibility of such recognition being applied to authentic instruments. See also R Crône, La réception d’un acte authentique étranger en France in Liber Amicorum M Revillard 1st edn (Paris, Defrenois, 2007) 79 at 83. See Geimer and Schütze: R Geimer and R Schütze, Europäisches Zivilverfahrensrecht 3rd edn (Munich, CH Beck, 2010) Article 57 no 27 at 836 where the lack of recognisable legal effects associated with authentic instruments is noted by Professor Geimer – a civil law notary. 100 The unresolved matters concerning the juridical act/material content said to be included in the negotium of the authentic instrument (eg whether the juridical act arose, whether the parties had legal capacity) cannot be made definitive by ‘recognising’ the authentic instrument in which they apparently are contained.

Article 48 and Recognition  281 it follows that authentic instruments are incapable of the cross-border recognition associated with a judgment or another sovereign act. In cross-border situations it is necessary to apply normal private international law/conflict of law provisions to establish that a final enforceable judgment pertaining to a given juridical act was generated by the Member State of origin: it is this authoritative determination that is recognised and to which orthodox recognition refers. To apply such recognition to an authentic instrument involves attempting to recognise its negotium/supposed contents. As an authentic instrument is, absent the involvement of the notary, often essentially a privately concluded document, any State which allowed such recognition to extend to the contents of such an authentic instrument would thereby allow the privately concluded authentic instrument to bypass the systems of private international law/conflict of laws by which the legal effects of such ‘obligations’ would otherwise be determined: further, it would allow the matters so recognised to interfere with orthodox private international law by setting up additional ‘Res Judicata’ or preclusive effects.101 To take such a step while making recognition automatic by abolishing the e­ xequatur stage at which such mischiefs might be detected and potentially neutralised would, according to orthodox ideas, be a particularly unwise course of action. In fairness to the Commission, there is no evidence that it sought or wished to achieve the abovementioned unfortunate effects by its proposals concerning the recognition to authentic instruments. The Commission focussed its proposal on the ideas that ‘recognition’ would allow a foreign document called an authentic instrument in the Member State of origin to be treated automatically as an authentic instrument in the Member State of enforcement and further would facilitate certain assumptions going to notarial equivalence amongst the Member States. Though it is possible to criticise aspects of these ideas as unnecessary given the proposed abolition by the impending Regulation of intra EC legalisation requirements, it maybe that the various Commission proposals for the extension of ‘recognition concepts’ resulted from over-extending the Cassis de Dijon102 jurisprudence (a very different strand of jurisprudence concerning indefensible State-maintained obstacles to the free movement of goods within the Common Market). Equally, not all Member States objected to these proposed extensions with the same fervour or to the same extent: it was the legal systems that would automatically deduce wholesale preclusive legal effects from recognition as such (eg Germany, Austria and the UK) that objected most loudly, other Member States were more sanguine on this point.

101 This argument is strongly advanced by the French literature, see A Huet, Un Titre Exécutoire Européen Parmi d’Autres: l’Acte Authentique in Liber Amicorum M Revillard 1st edn (Paris, Defrenois, 2007) 183 at 193, P Callé, L’acte public en droit international privé 1st edn (Paris, Economica, 2004) 336 para 650. 102 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 00649.

282  The Maintenance Regulation Further it must be conceded that the European Commission was not alone in its wish to use a recognition concept to facilitate the cross-border effectiveness of arrangements concerning maintenance (including authentic instruments): the Hague Conference had earlier employed an arguably novel recognition terminology concerning ‘settlements’ in Article 21 of its 1973 Convention.103 This was repeated and then extended to authentic instruments proper by the 2007 Maintenance Convention via Article 3(e) ‘maintenance arrangements’, that Article 19(4) indicates to be subject to the recognition and enforcement provisions of the Convention as applied by Article 30(1). According to the explanatory report to the 2007 Convention, ‘The term “recognition” refers to the acceptance by the competent authority addressed of the determination of the legal rights and obligations made by the authorities of origin’.104 Article 30 of the Hague Convention requires: a) that the maintenance arrangement must be specifically enforceable as a decision in its State of Origin; and b) that this enforceability is evidenced by a complete copy of the text and by a statement that this maintenance arrangement is so specifically enforceable in its State of Origin.105 This process allows the demonstration of the ‘legal force’ or quality of effectiveness of the particular ‘maintenance arrangement’.106 For the 2007 Hague Convention the recognition of a foreign authentic instrument it intended only to demonstrate its domestic legal force and the orthodox traditions of private international law are respected because the Convention features an overt foreign exequatur stage for any incoming ‘maintenance arrangement’. The novel references to recognition of an authentic instrument merely allows the applicant to demonstrate the enforceability of the foreign authentic instrument to secure a declaration of the same while also permitting the other party to oppose recognition on precisely defined grounds.107 It is suggested that the position concerning the automated ‘recognition’ of authentic instruments by the Maintenance Regulation is very similar, despite

103 para 99 of Michel Verwilghen’s Explanatory Report on the 1973 Hague Maintenance Conventions available from www.hcch.net/en/publications-and-studies/details4/?pid=2946&dtid=3 concerning Art 21, of Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, www.hcch.net/en/instruments/conventions/full-text/?cid=85. 104 Borrás and Degeling report (n 77) concerning Chapter V at para 429 where such ‘recognition’ is distinguished from recognition and enforcement which is said to refer to ‘the intermediate formalities to which recognition and enforcement of a foreign decision are subject’. 105 Art 30(3). 106 Borrás and Degeling report (n 77) para 473 where the need to show either a quality of res judicata or legal force is noted as having been decided as the minimum required to allow the ‘recognition’ of a decision. 107 Art 30 (4)(a–c). A distinction between full recognition and the limited enforcement-facilitating recognition the authors suggest applies to the Maintenance Regulation is advanced robustly by A Boehm, N Faetan and I Jäger-Maillet, ‘Child Maintenance and Authentic Instruments – A German Perspective’ in Beaumont, Hess, Walker and Spancken (eds) (n 3) 285 at 295–96 with further references.

Article 48 and Recognition  283 complications introduced by the Commission’s desire to remove the e­xequatur stage for those Member States who had agreed they would be bound by the EU’s approval of the 2007 Hague Protocol. The first sentence of Recital 25 of the Regulation offers an indication of the legislator’s intentions on ‘Recognition’. Recognition in a Member State of a decision relating to maintenance obligations has as its only object to allow the recovery of the maintenance claim determined in the decision. It does not imply the recognition by that Member State of the family relationship, parentage, marriage or affinity underlying the maintenance obligations which gave rise to the decision.108

This Recital indicates without ambiguity that the recognition accorded to a decision is only directed to the specific object of allowing the recovery of the maintenance claim: further issues such as ‘the family relationship, parentage, marriage or affinity’, are not affected or deemed ‘recognised’ by the operation of the Regulation.109 This restricted notion of recognition, as a demonstrator of prima facie validity sufficient merely to allow the cross-border maintenance claim to proceed in the enforcement venue without the need for de novo proof of all matters, is consistent with the earlier clarification in Recital 13, this Regulation should also ensure the recognition and enforcement of court settlements and authentic instruments without affecting the right of either party to such a settlement or instrument to challenge the settlement or instrument before the courts of the Member State of origin.110

In the circumstance that such a challenge in the Member State of origin led to the amendment or nullification of the maintenance obligation this would, despite any earlier ‘recognition’, also necessarily and automatically amend or nullify its Article 48(1) effectiveness in the enforcement venue too.111 Though the faint possibility remains that upon receiving a reference request requiring it to explore the meaning of the Regulation’s recognition concept for maintenance authentic instruments the CJEU might decide otherwise, for the present it seems reasonable to presume that Recital 25 properly encapsulates the purpose of the relevant recognition concept.

108 Recital 25, my italics. 109 Art 22 and Recital 25: the need for the duplication is presumably that Art 22 is located Chapter IV Section 1 and not in Section 2. Recital 21 also seeks to contain and control aspects of the scope of the Regulation. 110 Recital 13, my italics. 111 Regretting the lack of an overt Regulation mechanism on this point see P Picht, Art 48 para 8 in volume 3 of R Geimer and R Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen (Munich, CH Beck) 337 (looseleaf). It may be that as the Regulation does not operate via a certification system, the need for an overarching equivalent of Art 11 EEO Regulation was not appreciated. That said, Art 48(1) insists unambiguously that it applies to titles that are enforceable in the Member State of origin. The continued need for domestic enforceability is a condition precedent for the completion of the Annex III and IV forms and can also be inferred from Art 41(1), Art 19(3) para 2, Art 21(3) para 2, Art 25, Art 35. See however Art 44 of the Brussels IIa Regulation in the following chapter.

284  The Maintenance Regulation The different potential meanings of the extent of such recognition concerning maintenance authentic instruments is featured across the German academic literature.112 German academics have tended to follow the French doctrine referenced above in resisting a simplistic direct application of the orthodox private international law concept of recognition to Article 48 titles that would allow a foreign authentic instrument to impose a substantive recognition concerning a given legal situation on the other Member State legal systems. The difficult questions connected with the determination of the extent of the Article 48 recognition concept and the extent to which it involves an extension of legal effects from the Member State of origin into the enforcement venue and other EU legal systems awaits judicial clarification in either Member State courts or the CJEU. For the present therefore academic suggestions and analysis must suffice. Some light is shed on the meaning of Article 48(1) recognition by the frequently cited work of Andrae which has consistently upheld the important distinction between the enforcement facilitative form of ‘recognition’ required by the Maintenance Regulation113 in connection with a foreign authentic instrument and the orthodox form of private international law recognition concerning a sovereign act represented by a judgment (or certain judicial settlements).114 Andrae suggests that the special enforcement facilitative recognition required by Article 48 has two consequences: first, that the authentic instrument must be treated by the receiving Member State as if it had been validly created under the law of the Member State of origin, thus it must be presumed to possess the same evidential value as it would possess in the Member State of origin;115 second, that for Chapter IV Section 1 titles, Article 17 and Recital 13 ensure that only the courts in the Member State of origin retain the ability to entertain a direct legal challenge or an appeal in connection with the authenticity or the material content of the parts of the maintenance authentic instrument that fall under the Regulation.116 It is suggested that the observations of Lipp, writing in the Münchener Kommentar on the FamFG, provide a very useful gloss on Andrae’s comments on the meaning and extent of the ‘recognition’ concept found in Article 48(1). Lipp generally cites Andrae with approval and is not hostile to the prospect of Article 48 recognition leading to an extension of effects if this is established via a case by case 112 See V Lipp in Münchener Kommentar zum FamFG, Volume 2, 3rd edn (Munich, CH Beck, 2019) (hereafter MüKo FamFG), Art 48, paras 32–34; R Haussmann, Internationales Und Europäisches Familienrecht 2nd edn (Munich, CH Beck, 2008) para 328–30, at 1084; P Picht in Geimer and Schütze (n 111) Art 48, paras 6–8, 337; M Neumayr in J Kindl, C Meller-Hannich, H-J Wolf (eds), Gesamtes Recht der Zwangsvollstreckung – Handkommentar 3rd edn (Baden-Baden, Nomos, 2016) Art 48 para 9, 2659; see also A-S Boehm, N Faetan, and I Jäger-Maillet, in Beaumont, Hess, Walker and Spancken (n 2) at 295 (note 2) with further references. 113 And by Art 46 of the Brussels IIa Regulation, see ch 7. 114 M Andrae in T Rauscher, Europäisches Zivilprozess- und Kollisionsrecht Kommentar 4th edn (Cologne Dr Otto Schmidt Verlag, 2015) para 6, and in Andrae M, Internationales Familienrecht 3rd edn (Baden-Baden, Nomos 2014) 644 ff. 115 Andrae in Rauscher (n 114) para 6. Haussmann (n 112) takes a similar view in his preferred wider interpretation of the recognition concept at para 329. 116 Andrae in Rauscher (n 114).

Article 48 and Recognition  285 consideration involving an evaluation carried out by the enforcement venue of the legal effects that the authentic instrument would enjoy in the Member State of origin to allow the application of such domestic effects across borders in the enforcement venue. Though if taken to extremes this could amount to a re-introduction of the abolished exequatur for Section 1 titles, it seems that what Lipp contemplates will usually be encapsulated by the unavoidable step of a representative of the enforcement venue considering how to best effect the incoming enforcement title in the enforcement venue. There is no reason to ‘damn’ such an attempt to accommodate the incoming foreign title as the re-introduction of an informal exequatur stage: if difficulties in accommodating the incoming title should arise, basic EU principles such as non-discrimination and equivalence are available. Lipp does however argue that any such accommodation of foreign titles via Article 48 recognition must be constrained by two aspects of a general principle relevant to cross-border authentic instruments. The principle is first considered in its usual guise, thus Article 48 recognition should not be understood to require or to legitimate the conferral of additional privileges on an incoming authentic instrument in the enforcement venue if it does not enjoy such privileges in its Member State of origin; in the context of the cross-border effectiveness of authentic instruments this is a familiar and rational limitation on cross-border effects concerning authentic instruments. It would be most objectionable for a multilateral recognition and enforcement system to allow additional legal effects to be conferred on an authentic instrument containing a maintenance obligation (or conversely for its domestic legal effects to be denied) simply because it was to be enforced across one intra-EU border rather than another. Thus, if the authentic instrument has a given level of domestic probative force in the Member State of origin it is this domestic level of probative force that the enforcement venue should attempt to emulate when conferring Article 48 recognition, nothing more and nothing less. For his second limitation of Article 48 recognition, Lipp takes the familiar and uncontroversial notion that it is wrong to extend the effects of an authentic instrument beyond its domestic legal effects and applies this principle to include other legal effects that the authentic instrument in question cannot establish in its Member State of origin, eg the substantive law of the transaction in question (eg in the present context the applicable law of a maintenance obligation); Lipp observes with reference to the work of Andrae and Picht (convincingly it is suggested) that such Article 48 recognition should be understood against the possibility of challenges in the Member State of origin and thus that the incoming authentic instrument should not be regarded as intrinsically unchallengeable in the enforcement venue whether in terms of either relevant procedural objections or concerning such aspects of its material content as are not protected by Article 42’s prohibition on a révision au fond once it reaches the enforcement venue.117 117 V Lipp in MüKo FamFG, Art 48, para 34–35. For further criticism of wider recognition concepts for authentic instruments see M Kohler and M Buschbaum, ‘Die “Anerkennung” öffentlicher Urkunden?’ [2010] IPRaX 313 at 314 II.

286  The Maintenance Regulation These sensible and principled explanations of Article 48 recognition are important because the Maintenance Regulation was drafted in contemplation of more than just applications from stereotype creditors seeking maintenance payments from stereotype debtors. If too enthusiastically applied to incoming enforcement titles a recognition concept might so restrict the activities of the court or other authorities in the enforcement venue as to needlessly magnify the number of legal proceedings required for even the most routine cross-border maintenance claim. This would run counter to the general policy of the Regulation and the 2007 Convention of simplifying and speeding procedures while minimising costs, Andrae argues (logically and convincingly) that it follows from her restricted assessment of Article 48 recognition that this concept poses no obstacle to a court in an enforcement venue simultaneously being obliged to recognise an incoming maintenance authentic instrument while also entertaining an application to amend the maintenance obligation it contains (assuming the said enforcement venue court also possesses the necessary Regulation jurisdiction to permit the variation of that obligation).118 In conclusion, it is suggested that Article 48’s recognition concept be so ­understood as facilitative of cross-border transmission and potential ­enforcement and without reference to the orthodox recognition of judgments and other ­sovereign acts.

X.  Article 48(2), What is Meant by ‘As Necessary’? Article 48(2) states that the provisions of the Regulation shall apply ‘as necessary’ to authentic instruments: it dispenses with the equivalent Brussels I Regulation wording requiring that judgment specific Regulation ‘enforcement’ procedures located in a given part of the Regulation concerning ‘enforcement’ shall be applied, ‘as appropriate’ to authentic instruments and settlements. Though this change of wording has already been considered in the section above dealing with drafting, it has also assumed a significance concerning Article 8 of the Regulation because of an early suggestion that ‘as necessary’ in Article 48(2) extends the operative potential of Article 48’s enforcement titles beyond Chapter IV’s ‘recognition and enforcement’ context and thereby applies Chapter VI authentic instruments and settlements more widely across the provisions of the Maintenance Regulation. To put the matter in perspective it must be noted that for variation applications concerning judgments, the debtor’s liberty to apply for maintenance variation outside the Member State of origin is somewhat restricted by Article 8

118 The amendment process this suggestion contemplates is a variation of the obligation contained in the authentic instrument to replace it with a new judicial order; there is no suggestion that a foreign court can (or would try to) vary the instrumentum of a foreign authentic instrument.

Article 48(2), What is Meant by ‘As Necessary’?  287 of the Regulation:119 thus the assumed creditor’s existing maintenance arrangements are in a sense protected by Article 8 from unwanted variation applications lodged by the debtor in venues outside the habitual residence of the assumed creditor in which the last arrangement was concluded.120 Does this creditor protection extend to maintenance obligations recorded in authentic instruments and court settlements? It was argued in an early analysis of the Regulation published in 2010 by Gruber121 that because Article 48(2) applies the provisions of the Regulation ‘as necessary’ to authentic instruments and court settlements this indicated that maintenance obligations recorded in either of Chapter VI’s enforcement titles should also benefit from Article 8’s undoubted protection of the judgment creditor. Essentially Gruber argued for a more expansive application of the provisions of the Regulation concerning settlements and authentic instruments and (by implication) against their operative confinement to Chapter IV. Gruber’s argument proceeds by noting the policy of the Regulation (and indeed the 2007 Convention) to protect the assumed creditor with Article 8 before concluding that for policy reasons such protection is therefore ‘necessary’; this conclusion is then considered against Article 48(2)’s indication that the provisions of the Regulation should apply ‘as necessary’ to court settlements and authentic instruments and the suggestion is then proffered that therefore Article 8 must also apply to authentic instruments and settlements. As well as being open to objections of logic, this argument conflicts with what the documents generated in the drafting process consistently make plain was the intended function of what is now Article 48(2); ie to allow the operation of recognition and enforcement for authentic instruments and settlements in the context of Chapter IV using Regulation procedures that had been established for judgments and judicial proceedings: ‘as necessary’ refers only to Chapter IV recognition and enforcement procedures, it does not refer to the wider furtherance of desirable policy goals. Gruber’s suggestion turns Article 48(2) from an inward looking provision derived from the first sentence of Article 57(4) of the Brussels I Regulation into a much wider provision without acknowledging that exactly the ‘typical’ instruction to apply the recognition and enforcement provisions of the given Regulation to authentic instruments and settlements ‘as appropriate’ was included in the proposal texts until mid to late September 2008 when it was intentionally adapted into the ‘as necessary’ provision in final Article 48(2) with the

119 Explained by Recital 17 and following Art 18 of the 2007 Convention. 120 In this context, ‘assumed creditor’ refers to the person in receipt of the maintenance payment; for Regulation purposes however, there is no additional restriction on who may be the creditor (or debtor) other than that derived from obligation itself. If a person secures a judgment that she has no obligation to pay maintenance, then she is the creditor of this judgment and it is she who will be ‘protected’ by Art 8. 121 H Gruber, ‘Die neue EG-Unterhaltsverordnung’ (2010) IPRax 128.

288  The Maintenance Regulation apparent intention122 of narrowing the potential application of the more typical ‘as appropriate’ phrase. Gruber’s suggestion also does not address the indications of a narrowing and restrictive legislative intent concerning authentic instruments, etc, provided by final Recital 13 that replaced and narrowed the much wider draft Recital 20 from the Commission’s 2005 Proposal.123 Analysis of the changes to the text during the drafting procedure allow Gruber’s argument on this point to be dismissed; indeed, it is the author’s view that on the question of the operative scope of authentic instruments, etc. Gruber’s deduction of any wider role outside Chapter IV based from the text of Article 48(2) is probably incorrect. Textual analysis thus indicates that, despite Article 48(2)’s change in wording, Article 8 of the Regulation cannot be applied to authentic instruments and settlements because it is located in Chapter II of the Regulation and Chapter VI authentic instruments (or settlements) are not equated with the content of Chapter II by any part of the Regulation.124 Despite somewhat different wording in Article 48(2), authentic instruments and settlements remain confined to a recognition and enforcement role by the Regulation and in this role they are not wholly equivalent with judgments. This interpretation, which is also advanced by Andrae, also allows what for some will be a convenient possibility of amending of maintenance obligations contained in authentic instruments or settlements without the obstruction that would otherwise be posed by Article 8. This convenience however comes at whatever may be the cost of Article 8 not protecting the settlement or authentic instrument creditor’s entitlement (thereby arguably diverging from Article 18 of the 2007 Hague Convention). Equally, there is a point to Gruber’s wider argument, that the assumed creditor’s Article 8 protection should not be circumvented merely because the enforceable maintenance title takes a form other than a judgment, as it does reveal a lacuna that warrants further consideration by the EU.

122 Assuming, as seems probable, that the suggestion made earlier by the German Delegation (arising from their dislike of the imprecision of ‘as appropriate’) provides the reason for the change: see Note from German Delegation, 27 November 2006, commenting on draft Art 38 of the 2005 Proposal arguing that ‘as appropriate’ left open the question of whether one of the involved parties might obtain a full review and also left open the appropriate procedure for any such challenge, 15856/06 JUSTCIV 260 at 37. 123 Draft Recital 20 from the Commission’s 2005 proposal read, ‘Authentic instruments and agreements between parties which are enforceable in a Member State should be treated as equivalent to decisions.’ This width is constrained by final Recital 13. That said, draft Recital 20 connected with draft Arts 37 and 38, which each made it plain beyond doubt that it was only the ‘as appropriate’ recognition and enforcement of the authentic instrument/settlement via earlier provisions designed for judgments that was the original aim. 124 Andrae in Rauscher (n 114) Art 48 p.733 para 9, echoed by Picht (n 111) Art 48 para 8 and by Haussmann (n 112) Art 48 para 332 at 1084. Though technically correct, Art 8 is an important reflection of the policy of the 2007 Convention as expressed by its Art 18; it is therefore not inevitable that all courts/authorities will agree that it may be dismissed by reason of an argument based on a drafting technicality. P Reuß in R Geimer and R Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen, Volume 3 (Munich, CH Beck, looseleaf) Art 8 para 4 p.108 notes the need for the policy of protection and the legal uncertainty resulting from the lacuna.

Operation of the Regulation: General Requirements  289 What then is the meaning of Article 48(2)? It is suggested that considering its plain text as informed by its function in the Regulation, with reference to the drafting debate alluded to above, indicates that Article 48(2) means that the other provisions of the Regulation will apply to incoming foreign settlements and authentic instruments to the extent this is necessary to allow the recognition and enforcement of the Chapter VI titles in accordance with Article 48(1) by the Member State of enforcement. As this recognition and enforcement must proceed via provisions drafted for Article 2(1)(1) decisions, Article 48(2) instructs the enforcement venue to apply the Chapter IV Section 1 or Section 2 and Section 3 provisions as necessary to effect the recognition and or enforcement of Article 2(1)(2) settlements and Article 2(1)(3) authentic instruments. It is thus suggested that Gruber’s very principled deduction of a broader scope for Chapter VI titles from Article 48(2) is incorrect and that the more restrictive interpretations are correct. Article 48(2) of the Maintenance Regulation was drafted to restrict the potential application of Chapter VI authentic instruments (or settlements) within Chapter IV of the Regulation to that which is necessary to allow the recognition and enforcement of these specific enforcement titles. It is on this basis that the brief survey of the Chapter IV provisions relevant to authentic instruments proceeds below.

XI.  Operation of the Regulation: General Requirements A.  Article 1 Scope The subject matter scope of the Maintenance Regulation is at first sight simple: Article 1(1) states that ‘This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity’. This indication is expanded by Recital 11 which records that ‘maintenance obligation’ is to be interpreted autonomously. These words conceal various scope complexities resulting from: differences between the Maintenance Regulation and the 2007 Hague Convention;125 the lack of a Regulation definition for ‘maintenance’; the range of the relationships126 potentially giving rise to ‘maintenance obligations’; and, the fact that the Maintenance Regulation ‘absorbs’ the earlier attempts to construe ‘maintenance’ autonomously in the jurisdictional context of Article 5(2) Brussels I Regulation. Though it is beyond the scope of this chapter to explore these matters in depth, it is useful to remember that the autonomous construction of the maintenance obligation concept indicates a potential for further extension of the Article 1 125 Recital 8 indicating that the Regulation is intended to take the 2007 Hague Convention and Protocol into account. 126 Walker (n 2) 37.

290  The Maintenance Regulation scope of the Regulation. This possibility is a corollary to the obvious risk that any matter found to be outside the Article 1 scope of the Regulation cannot benefit from the cross-border possibilities offered by the Maintenance Regulation. If a notary (or other public official) believes that the proposed transaction between the spouses cannot be classed as ‘a maintenance obligation’ under that Regulation, this will affect his advice and actions. Equally, despite the potential for an incoming maintenance authentic instrument to benefit from both automatic recognition and enforcement in the enforcement venue, both recognition and enforcement can be defeated in the enforcement venue by demonstrating that the Maintenance Regulation does not in fact apply. Having made these preliminary observations a brief examination of the Article 1(1) scope of the Maintenance Regulation is now provided. The first point to note is that though there are similarities between the two, the Maintenance Regulation is necessarily somewhat different to the 2007 Hague Convention. The Hague Convention starts from a core scope in Article 2(1) concerning child and (most) spousal support; a contracting party may to opt to narrow or extend this core coverage.127 This approach could not be mirrored via an EC Regulation intended to provide harmonised provisions on jurisdiction, applicable law, and recognition and enforcement to cover all (or nearly all) the EC’s Member States inter se. Equally, the European position was complicated by starting out with a legacy of accumulated jurisprudence concerning ‘maintenance’ arising from Article 5(2) of the Brussels Convention and the Brussels I Regulation. Thus, the European approach was to take a much wider initial approach to the concept of maintenance and maintenance obligations than that expressed by the 2007 Convention considered in its initial ‘core’ formulation. It is clear that the absence of a definition of ‘maintenance’ from the Regulation was not an accident.128 ‘Maintenance’ is a potentially wide-ranging concept which in abstract terms can be understood to apply to describe any situation in which one person is required by a given legal system to make ‘payment’ to another person for the maintenance of that recipient; the width of this concept varies as different legal systems are considered. Additionally, as Beaumont noted, any attempt to define even the potential classes of applicants/claimants under the draft Regulation would have required positions to be taken on the many and varied issues of controversy associated with the nature and extent of family relationships and personal status such as whether a homosexual relationship could give rise to maintenance obligations. The Regulation ‘side-steps’ these open controversies129 by merely indicating the broad relationships for which a maintenance obligation is conceivable and leaves it to the claimant to generate an enforceable claim (whether judgment, authentic instrument or settlement) concerning such a maintenance obligation in



127 2007

Convention Art 2(2) and (3) respectively. and McEleavy (n 2) 19.07. 129 Discussed by Gruber (n 121) 131. 128 Beaumont

Operation of the Regulation: General Requirements  291 a Member State of origin that can itself direct its officials and courts to determine the relevant applicable law on maintenance obligations via the Regulation and the 2007 Protocol (or in accordance with domestic applicable law rules in Denmark or the UK) and also for all the other necessary legal issues that are not regulated by the Regulation.130 The creditor/Central Authority then presents the relevant enforcement title for automatic recognition and it is enforced via the appropriate parts of Chapter IV. Concerning the width of the class of different relationships that may fall within the scope of ‘maintenance’ according to the relevant applicable law; plainly spouses and children (legitimate or not and without any age restriction imposed by the Regulation) can claim maintenance under the Maintenance Regulation (and/or provoke what may loosely be described as a ‘representative’ maintenance claims131 by those acting variously on their behalf) for that which the applicable law in the Member State of origin regards as maintenance due to them from a debtor regarded as obligated again according to the concept of maintenance in the legal system from which the enforceable claim originates.132 As the Regulation expressly contemplates a relationship of affinity as a basis for maintenance obligations it also includes such rights arising from a ‘marriage’ which entitle a spouse’s ‘in-laws’ to receive maintenance from that spouse despite the lack of a ‘blood-relationship’; if this is indeed the effect of the marriage according to the interpretation of the applicable law in the eyes of a legal system capable of generating a title enforceable under the Maintenance Regulation these rights of affinity may also be asserted by the relevant ‘creditor-in-law’ against the debtor across the EU. It is tempting to hope that references to the CJEU will provide additional clarity concerning the meaning of ‘maintenance’ within the Maintenance Regulation. Such hopes are not however not merely dependent on the usual uncertainties of a suitable reference being made and sustained in circumstances likely to be unconducive to either eventuality, but must also be tempered with the fact that as Recital 21 and Article 22 repeat, the Maintenance Regulation is not concerned with the domestic legal institutions from which the maintenance obligations have arguably arisen and thus when the CJEU interprets the Maintenance Regulation alone, it does not have carte blanche to interpret the wider issues of the applicable law relating to the (excluded) domestic legal institutions which constituted the forms of maintenance from which the autonomously interpreted Regulation concept of ‘maintenance obligations’ then have arisen.133 130 eg the matters not covered by the Regulation according to Recital 21 and Art 22. 131 Recital 12 clarifies that the Regulation is also intended to apply to decisions given by administrative authorities and Recital 14 includes public bodies that can claim for the creditor whether by subrogation or in relation to the recovery of benefits paid in lieu of maintenance. See also Art 52 concerning powers of attorney and Chapters VII (Cooperation Between Central Authorities) and VIII (Public Bodies). 132 n 67 above for an outline indication of the further scope of such maintenance obligations in French and German laws. 133 Walker (n 2) discussing Recital 21 and Art 22 at 38. Though unlikely, it is not impossible that a CJEU chamber possessed of sufficient teleological intent might resolve to approach a preliminary

292  The Maintenance Regulation Despite the Maintenance Regulation only applying to ‘maintenance ­obligations’, and being excluded by Recital 21 and Article 22 from directly affecting the applicable law concerning the legal institutions from which such obligations are often derived, the CJEU’s earlier jurisprudence on the scope of Article 5(2) of the Brussels Convention remains relevant and of assistance for the purposes of indicating how to delineate the autonomous concept of ‘maintenance’ from other legal concepts:134 whether the two issues may interact osmotically within the EU is as yet unclear. The Article 5(2) jurisprudence arose as a consequence of the interaction of different legal traditions and procedures concerning different types of maintenance claims135 and, in particular, with reference to the need to distinguish between included civil and commercial maintenance claims permitting jurisdiction and enforcement under the Brussels Convention and excluded matters such as personal status and matrimonial property claims. As de Cavel v de Cavel (No2) would confirm, the possibilities of total inclusion or total exclusion were joined by a third possibility of claims partially within the scope of Article 5(2) of the Brussels Convention. The accession of three new Member States to the Brussels Convention encouraged the discussion of Article 5(2) maintenance obligations in the Schlosser Report.136 The propensity of the English courts to make awards on divorce that did not correspond with the common distinction in civil law jurisdictions between maintenance (included via Article 5(2)) and matrimonial property (excluded by Article 1(1)) led to Van den Boogaard v Laumen137 which clarified that under Article 5(2) of the Brussels Convention a partially enforceable claim was possible,138 that the failure of an English court to follow a matrimonial property contract which it did not recognise was not relevant to the subsequent recognition of the English decision, and that the form of the payment ordered was

reference concerning an applicable law issue technically adjacent to the maintenance obligation proper in an interventionist manner if the alternative was to accept that the intended operation of the Regulation would be defeated: in such a circumstance it could be argued analogously to the court’s approach to public policy in Case C-7/98 Krombach v Bamberski [2000] ECR I-1935 that though the relevant issue of applicable law is within the control of the Member State, the CJEU can police the operation of the domestic concept to the extent that it impinges upon the intended operation of the Regulation. It cannot though be denied that a decision to this effect would be as notable and unusual as the decision was and is in Krombach. 134 For an internal example see Case C-558/16 Re Mahnkopf EU:C:2018:138 where at para 86 of his Opinion AG Szpunar refers to Case C-220/95 Van den Boogaard v Laumen EU:C:1997:91. For an external example see Borrás and Degeling report (n 77) para 65. For detail on the previous practice see Mankowski (n 25) 215–19; Walker (n 2) 40–46. 135 Case 120/79 de Cavel v de Cavel (No 2) [1980] ECR 731 a French ‘prestation compensatoire’ by which one spouse compensated the other for the drop in living standards consequent on the breakdown of the marriage was classed by the ECJ as relating to a maintenance claim via Art 5(2) of the Brussels Convention and thus could be enforced against the debtor as a civil and commercial judgment via that Convention in Germany despite being ‘ancillary’ to the excluded French divorce (see paras 6–7). 136 Schlosser Report (n 24) maintenance, mostly Art 5(2), is discussed paras 90–96, excluded ­matrimonial property regimes paras 43–50. 137 C-220/95 Van den Boogaard v Laumen [1997] ECR I-1147. 138 ibid, at paras 20 and 22.

Operation of the Regulation: General Requirements  293 not conclusive.139 The ECJ also offered guidance on differentiating maintenance from matrimonial property: 21. … the court from which leave to enforce is sought must distinguish between those aspects of the decision which relate to rights in property arising out of a matrimonial relationship and those which relate to maintenance, having regard in each particular case to the specific aim of the decision rendered. 22. It should be possible to deduce that aim from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with article 42 of the Brussels Convention, be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond.140

Despite subsequent cases and the necessary adaptations to this advice to reflect the different drafting and enforcement possibilities included in the Maintenance Regulation, it is suggested that the advice of the ECJ from Van den Boogaard remains a useful indicator of whether a putative enforcement title will concern maintenance or some other legal concept.141 This approach may assist those faced with the legal question of whether a matter can be characterised as a ‘maintenance obligation’ under the Maintenance Regulation (assuming that there is no alternative route to the desired outcome via the 2007 Hague Protocol).

B.  Article 76 Temporal Application and Article 75 Transitional Provisions Considered against Article 76(1), the Regulation came into force on 30 January 2011. The temporal application of the Regulation for most purposes142 (and for all purposes relevant to cross-border maintenance claims involving authentic instruments) is however set out in the third paragraph of Article 76 such that the Regulation is fully applicable from 18 June 2011.143 Accordingly, an authentic instrument concerning a maintenance obligation drawn-up on (or after) 18 June 2011 is within the temporal scope of the Regulation. 139 ibid para 23. 140 ibid, my italics. 141 For brief accounts of the subsequent UK case law see Walker (n 2) 40–46; Beaumont and McEleavy (n 2) 19.10–19.11. 142 Arts 2(2), 47(3), 71, 72 and 73 apply from 18 September 2010. 143 The caveat in Art 76 para 3 making 18 June 2011 conditional on the 2007 Hague Protocol being applicable in the EC by this date was removed by the EU’s notification of its approval of that Protocol as an REIO (effective from 8 April 2010).

294  The Maintenance Regulation Article 75 includes transitional provisions indicating the application of the Maintenance Regulation to decisions given/authentic instruments drawn-up and settlements achieved prior to its date of application, or, concerning proceedings that straddle that date. This Regulation shall apply only to proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after its date of application, subject to paragraphs 2 and 3.144

As Article 76 goes on to provide that the date of application of the Regulation is 18 June 2011, the italicised ‘after’ in Article 75(1) could be read to suggest that an authentic instrument must be ‘established’ (ie drawn-up or registered) after145 18 June 2011 (ie from 19 June 2011). As however this interpretation leaves a mainte­ nance authentic instrument drawn-up on 18 June 2011 in a gap that Article 75(2)(a) cannot close, it must be wrong: it is therefore suggested that ‘after’ 18 June 2011 is read to convey ‘after the commencement’ of 18 June 2011 at the beginning of that day rather than after the end of 18 June 2011.146

C.  Articles 68 and 75, Temporal Issues and the Relationship between the Maintenance Regulation and Earlier EC Provisions Article 68 of the Maintenance Regulation sets out the relationship between that Regulation and four other European Community provisions listed in numbered sub-paragraphs. Only the first two sub-paragraphs merit discussion.147 Article 68(1) concerns the Brussels I Regulation and indicates that the Maintenance Regulation modifies the Brussels I Regulation’s provisions applicable to matters relating to maintenance obligations.148 This modification is expressly subjected to Article 75(2) which concerns the identification of the European Community provision that applies to applications concerning decisions or, mutatis mutandis,149 to the ‘establishment’ of an authentic instrument (or the approval/ conclusion of a settlement) before the date of application of the Maintenance Regulation on 18 June 2011.

144 My italics. 145 ‘After’ is used consistently in other language texts of the Regulation. 146 D Martiny, ‘Unterhaltsverordnung’ in S Leible and J-P Terhechte (eds), Enzyklopädie Europarecht, Europäisches Rechtsschutz- und Verfahrensrecht, Vol 3 (Baden-Baden, Nomos, 2014) also prefers this construction, see Martiny at 641 fn 77 with sources. 147 Art 68(3) concerns the legal aid Directive and Art 68(4) concerns the personal data processing Directive. 148 Also Recital 44. 149 Art 75(2) speaks of ‘recognition and enforcement’ procedures but the exhortation to apply it to authentic instruments mutatis mutandis removes the need to invent a recognition procedure that the Brussels I Regulation has always lacked.

Operation of the Regulation: General Requirements  295 Article 75(2)(a) states that Sections Two and Three of Chapter IV of the Maintenance Regulation apply to decisions given prior to 18 June 2011 for which recognition and enforcement are sought on or after 18 June 2011. Adapted to authentic instruments it is suggested that this means that Sections Two and Three of Chapter IV apply to authentic instruments established (ie drawn-up or registered) prior to 18 June 2011 if the recognition and or the enforcement of that authentic instrument is sought on or after 18 June 2011. It is difficult to see how Article 75(2)(b), which again directs the recognition or enforcement of maintenance decisions given on or after 18 June 2011 following Brussels I Regulation proceedings begun before that date to Sections Two and Three of Chapter IV of the Maintenance Regulation, can be relevant for authentic instruments.150 Article 75(2) does however helpfully declare that if Brussels I Regulation procedures for recognition and enforcement are underway on 18 June 2011 they continue to govern that recognition and enforcement procedure. Article 68(2) concerns the EEO Regulation and states that the Maintenance Regulation replaces it ‘in matters relating to maintenance obligations’ unless a European enforcement order concerning a maintenance obligation is issued in a Member State not bound by the 2007 Hague Protocol. Thus, despite the Maintenance Regulation replacing the EEO Regulation for maintenance obligations from 18 June 2011, the EEO Regulation remains potentially relevant for the enforcement of an uncontested maintenance obligation claim originating from a UK legal system.151

D.  Article 2(1) Definitions The presence of a definition section for the Maintenance Regulation is unsurprising. The Regulation and the 2007 Convention each have definition sections, but the terms defined are not all common across both instruments and the content of the definition sections reflects their differing drafting styles. Naturally the HCCH had no wish to discourage potential participants by providing a crystalclear definition of a controversial matter that if left undefined might assist a greater take-up of the Convention. That said, the Borrás-Degeling Report on the Convention indicates some areas of positive and negative commonality with the EC position concerning definitions. Thus, the potential for a controversial inclusion of a definition for ‘maintenance’152 or ‘maintenance obligation’153 was also 150 There seems to be no room for a notarial authentic instrument to fall within the Art 75(2)(b) criteria. It is also doubtful that it could apply if the authentic instrument was one requiring registration and that registration straddled 18 June 2011. In all cases the authentic instrument is only effective when ‘established’ as per Art 75(2)(a). 151 Denmark is not party to the 2007 Protocol but is also not party to the EEO Regulation. 152 Borrás and Degeling Report (n 77) para 65 and see the consideration of this undefined term above concerning the Art 1 scope of the EC Regulation. 153 ibid para 61. Paras 62–63 indicate that a definition of Habitual Residence was also deemed unnecessary.

296  The Maintenance Regulation not taken by the Convention. The terms defined in the Regulation do not though slavishly follow those defined by the Convention: the former defines 11 terms, including some which the Hague Conference decided not to define,154 while the Convention defines only six terms in Article 3(a–f) and includes some terms that the Regulation avoided.155 The 11 terms defined and the manner of their definition in Article 2(1) of the Maintenance Regulation are mostly clear and straightforward. It is therefore only necessary to note four in detail. Article 2(1)(1) concerns the term ‘decision’ which the Regulation employs as a portmanteau term to convey the wide variety of judgments, court orders or official pronouncements by the court, by a judge or by a court official that concern a maintenance obligation or the existence of (and responsibility for) the costs and expenses associated with such matters. The definition stresses that in the context of its Chapter VII (cooperation between central authorities) and VIII (concerning public bodies) the term ‘decision’ also means a decision, in matters relating to maintenance obligations given in a third State. The term ‘authentic instrument’ is defined in Article 2(1)(3) in a manner strongly reminiscent of the definition provided by Article 4(3) of the EEO Regulation, excepting the insertion of terms in italics in Article 2(1)(3)(a) to indicate that the authentic instruments at issue are ones concerning maintenance obligations, and the deletion of, ‘by the Member State in which it originates’, indicated by the square brackets below. Article 2(1)(3) the term ‘authentic instrument’ shall mean: (a) a document in matters relating to maintenance obligations which has been formally drawn up or registered as an authentic instrument in the Member State of origin and the authenticity of which: (i) relates to the signature and the content of the instrument, and (ii) has been established by a public authority or other authority empowered for that purpose …; or, (b) an arrangement relating to maintenance obligations concluded with administrative authorities of the Member State of origin or authenticated by them …156

Article 2(1)(3)(a) provides for the usual forms of authentic instrument drawnup or registered to be compliant with the ECJ’s Unibank criteria;157 it follows the approach since the EEO Regulation of extending the authenticity requirement to include the signature as well as to the content of the instrument. Article 2(1)(3)(b) reproduces Article 4(3)(b) of the EEO Regulation158 and provides that an authentic

154 ibid para 64, but see Art 2(1)(6–7) of the Regulation. 155 eg Art 3(c) ‘legal assistance’ (unnecessary in the Regulation given its Chapter V on access to justice) and Art 3(f) ‘vulnerable person’ concerning which see Borrás and Degeling report (n 77) para 55. 156 Art 2(1)(3). My italics indicate extra wording compared to the EEO Regulation and my italicised square brackets indicate excised words. 157 Ch 4, s II features a discussion of these criteria. 158 Discussed in ch 5 above.

Operation of the Regulation: General Requirements  297 instrument can be created by the administrative authorities of the Member State of origin either concluding an arrangement on maintenance obligations between the parties or authenticating one that the parties had already concluded. The Article 2(1)(3)(b) authentic instrument is as close as the Maintenance Regulation could move to the enforceable private agreements discussed above concerning the drafting of the Regulation: though it does not quite match the wishes of some Nordic Member States expressed in the drafting process, it has a potential to come close to doing so.159 It follows that the class of Article 2(1)(3) authentic instruments is a broad one which ranges according to the willingness of the legal system of the Member State of origin to allow the use of something capable of falling within the Article 2(1)(3) definition of a maintenance authentic instrument. As well including the classical conception of an authentic instrument as a document containing a juridical act/obligation drawn-up by a notary, or created by registration, any other domestically enforceable means to the same legal end fitting within Article 2(1)(3) will also suffice. Thus, a domestically enforceable official determination of maintenance liability from an official body charged with assisting the creditor in being paid/recovering maintenance from the debtor will, if suitably authenticated by officialdom, suffice. The last part of the definition provisions that merits specific consideration is found in Article 2(1)(10–11) concerning respectively the definition of ‘­creditor’ and ‘debtor’. For the Maintenance Regulation ‘creditor’ means ‘any individual to whom maintenance is owed or is alleged to be owed’160 and ‘debtor’ means ‘any individual who owes or who is alleged to owe maintenance’.161 Each definition follows the definition of the same term in Article 3(a–b) of the 2007 Hague Convention and in either case the text from ‘alleged’ is intended to allow an initial claim concerning a maintenance obligation to be immune from the logical objection that the status of creditor/debtor has yet to be determined and therefore the provisions relating thereunto cannot yet apply.162

E.  Application of Chapter IV Recognition and Enforcement Provisions to Authentic Instruments The precise operation of the automated recognition provisions of the Maintenance Regulation concerning authentic instruments, assuming the continued existence



159 Discussed

in this chapter at s VI above. 2(1)(10). 161 Art 2(1)(11). 162 Art 3(a–e) 2007 Hague Convention and Borrás and Degeling report (n 77) paras 66–68. 160 Art

298  The Maintenance Regulation of a valid enforcement title in the Member State of origin,163 varies according to when the relevant decision arose and then according to whether that ‘decision’ (which term includes authentic instruments for these purposes and parts of the Regulation) comes from an EU Member State party to the 2007 Hague Protocol. If the decision/authentic instrument was made/drawn-up after 18 June 2011 in a Member State to which the 2007 Protocol applies (ie not in the UK nor in Denmark), Section 1 of Chapter IV operates such that Article 17(1) ensures that the recognition permitted by the Regulation takes place ipso jure without the need for any special procedure and without any possibility of opposing that recognition as such in the foreign court.164 If the maintenance authentic instrument was drawn-up on 18 June 2011 or earlier, or if it comes from Denmark or from a UK legal system (ie from the two Member States not subject to the 2007 Protocol) Section 2 of Chapter IV applies such that though the recognition is still automatic, via Article 23(1), Article 23(2) provides for the possibility of an interested party then opposing that recognition in the enforcement venue in a manner modelled on the recognition of judgments from the Brussels I Regulation. Once the creditor has his Article 2(1)(3) compliant authentic instrument concerning a maintenance obligation from a participating EU Member State, he may proceed to its enforcement in another participating Member State via the appropriate Regulation procedure.165 The Maintenance Regulation’s recognition and enforcement procedures provide the creditor with two options: if he has all the information necessary to compete the relevant Annex forms (and can afford to so proceed) he may apply directly to the relevant enforcement authority, alternatively, he must apply via a central authority which (if necessary) can assist him in obtaining the information to complete the partially completed annex form and then will assist with the enforcement. Somewhat astonishingly the English procedural legislation managed (initially) to complicate this plain alternative by requiring all incoming applications to proceed via the English central authority. In the wake of

163 Art 48(1). Recital 13 incudes the ‘obvious’ point that the automatic recognition and enforcement procedures of the Regulation does not affect the continuing possibilities of challenging an authentic instrument in the Member State of origin to deprive it of cross-border enforceability. 164 Andrae in Rauscher (n 114) para 7. Despite Art 17, Art 19 makes limited provision for a timelimited review of the decision in the Member State of origin. Art 21 provides the enforcement court with a range of options, including refusing or suspending the requested enforcement, which are additional to any such grounds as may exist under its national law. 165 It will be remembered that despite not being able to opt-in to the Regulation as have the Ireland and the UK, Denmark notified the Commission that it would replace the provisions in the Brussels I Regulation as they concerned maintenance with most (not Chapters III or VII) of the provisions of the Maintenance Regulation subject to the caveat that, ‘The provisions in Article 2 and Chapter IX of Regulation (EC) No 4/2009, however, are applicable only to the extent that they relate to jurisdiction, recognition, enforceability and enforcement of judgments, and access to justice’. See Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 149, 12.6.2009, p 80 https://eurlex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22009X0612%2801%29.

Operation of the Regulation: General Requirements  299 conflicting English judicial authorities166 a preliminary reference was requested167 and the CJEU confirmed the obvious in MS v PS [2017]: a maintenance creditor who has obtained an order in one Member State and wishes to enforce it in another Member State may make an application directly to the competent authority of the latter Member State, such as a specialised court, and cannot be required to submit the application to that court through the Central Authority of the Member State of enforcement.168

The CJEU confirmed that the possibilities specified by the provisions of the Regulation ‘trumped’ national implementing laws and indicated that if the two clashed, the former had to prevail.169 Subject to the alternative direct route, the EU maintenance creditor (or other interested party) who would recover maintenance across intra-EU borders via an existing and currently enforceable maintenance authentic instrument will normally follow the Article 48(3) procedure and demand either a completed Annex III or Annex IV form (as appropriate) from the competent authority170 in the Member State of origin. Two different Annex forms for authentic instrument enforcement are required; not only because of the bifurcation of enforcement procedures caused by the non-participation of the UK and Denmark in the 2007 Hague Protocol, but also because the Maintenance Regulation takes over the enforcement of all authentic instrument maintenance claims that were previously presented under the Brussels I Regulation and most presented via the EEO Regulation.171 Thus, if the authentic instrument that is to be recognised and enforced originates172 from a Member State that is bound by the 2007 Hague Protocol, and it was drawn-up on or after 18 June 2011, it is via the Annex III form, and Section 1 of Chapter IV, that the creditor will proceed. For such authentic instruments (drawn up on or after 18 June 2011) it is the origin of the authentic instrument 166 In EDG v RR [2014] EWHC 816 (Fam) (13 March 2014) Mostyn J was confronted with English procedural legislation that, despite Section 1 of Chapter IV and Art 41 of the Regulation, appeared to send the claimant to the English central authority and to prevent direct access to the court; the judge suggested that a mistake had been made in the domestic legislation and allowed the direct enforcement right via r 33.3 of the Family Procedure rr 2010. In AB v JJB (EU Maintenance Regulation: modification application procedure) [2015] EWHC 192 (Fam) Singer J ruled that a debtor wishing to vary a foreign maintenance order had to apply and proceed via the Central Authority of another Member State and had no direct right to vary/enforce within the English legal system. See discussion by Walker (n 64) 780–82. 167 MS v PS [2016] EWHC 88 (Fam). 168 Case C-283/16 MS v PS AKA S v S EU:C:2017:104 ruling 1. 169 Case C-283/16 MS v PS AKA S v S EU:C:2017:104 ruling 2. 170 ‘Competent authority’ should not be confused with ‘central authority’, for a notarial authentic instrument the competent authority will be the notary. For the other forms of authentic instrument within the scope of the Regulation it is possible that the competent authority will be another branch of the State of origin. 171 Art 68(2). If the Member State of origin/issue is not bound by the 2007 Hague Protocol Art 68(2) leaves the EEO Regulation operational. This only applies to the UK as the EEO Regulation does not apply to Denmark. For the other Member States the EEO Regulation is replaced by the Maintenance Regulation for maintenance matters. 172 The destination within the participating EU Member States is not relevant to this point.

300  The Maintenance Regulation (not its destination) from a Member State bound by the 2007 Hague Protocol that determines that the Regulation’s exequatur-less recognition and enforcement procedures in Chapter IV Section 1 apply to its recognition and enforcement. The alternative, which applies to any intra-EU maintenance authentic instrument drawn-up/established prior to 18 June 2011, or, to such intra-EU maintenance authentic instruments as can originate from the UK or Denmark, is provided by Chapter IV Section 2. The Section 3 Common Provisions additionally provided by Chapter IV apply regardless of whether Section 1 and Section 2 apply. In all cases it is possible that a decision in the form of an authentic instrument may trigger the Article 48(2) ‘as necessary’ provision to affect or disbar the Chapter IV recognition or enforcement procedures in the context of an incoming authentic instrument containing an enforceable maintenance obligation.

F.  Recognition and Enforcement via Section 1 of Chapter IV Article 17(1) requires recognition of the decision, that Article 48(1) equates with a maintenance authentic instrument, in other Member States without a special procedure and without the possibility of opposing recognition.173 Article 17(2) requires the enforcement of a decision that is enforceable in its Member State of origin bound by the 2007 Hague Protocol without any need for a declaration of enforceability. The need for the decision to be, and by implication to remain, enforceable in the Member State of origin is of sufficient importance for the matter to be flagged up in bold type on the front of the Annex III form.174 Article 18 empowers the enforcement venue to apply any of its protective measures to an incoming enforceable ‘decision’. Article 19 concerns the limited right for a defendant who did not enter an appearance (ie before a court, a mediator, or another decision-making body) in the Member State of origin175 in the circumstances set out in Article 19(1) to seek a review in the Member State of origin. This provision is unlikely to be relevant to the recognition or enforcement of notarial authentic instruments as attendance (even if via power of attorney) is required to allow an authentic instrument to be drawn-up. If however a maintenance decision should be concluded by an administrative body in the absence of the debtor and then presented as an authentic instrument rather than a judgment, an Article 19 review might then be ‘necessary’ within the meaning of Article 48(2). As this seems an unlikely prospect it will not be explored further. Article 19 does again

173 Austrian Supreme Court OGH 8Ob51/17h 30.05.2017. 174 K Hilbig in R Geimer and R Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen, Volume 3 (Munich, CH Beck, looseleaf). Art 20, para 37, p214. 175 Not in any other venue and not if the defendant, though not physically present, was represented by a lawyer in the Member State of origin proceedings; see Austrian Supreme Court OGH 8Ob51/17h 30.05.2017.

Operation of the Regulation: General Requirements  301 highlight the general need for a decision/authentic instrument to be domestically enforceable in the Member State of origin during attempts to enforce it elsewhere in the EU.176 The documents required to enforce against the debtor – though the incoming decision is recognised and enforceable without an exequatur it is still necessary to know who the debtor is, etc – are set out in Article 20. Though Article 20 appears to be drafted to fit judicial decisions, it can also be applied via Article 48(2) to authentic instruments.177 The most basic requirement of Article 20 is that the claimant provides the competent enforcement authorities in the Member State of enforcement with an authentic copy of the relevant and enforceable parts of the authentic instrument and a completed Annex III form.178 In the present context the parts of the authentic instrument will be obtained from the officer or authority that drewup or registered or authenticated the authentic instrument in question; the relevant Annex form will probably be drafted more ‘collaboratively’ by the creditor and the notary/other official, but always with reference to the method of enforcement that the creditor wishes to pursue in the enforcement venue.179 If the claim includes arrears, Article 20 requires that a document indicating the amount and the date on which the sum was calculated must also be supplied.180 Article 20(1)(d) allows, on the cost-saving ‘where necessary’ basis,181 for the translation or transliteration of the data included in the Annex III form into an appropriate official language of the enforcement venue. Such translation must be carried out by ‘a person qualified to do translations in one of the Member States’.182 Though Article 20(2) forbids the enforcement authorities from routinely demanding the translation of decisions or authentic instruments presented for enforcement, a translation is (very sensibly) permitted in specific cases if the enforcement of a given authentic instrument should be challenged. Thus, a court in the enforcement venue is empowered to establish whether a debtor, who has appealed citing a matter that is properly material, eg that a material error has occurred in transcribing the terms of the maintenance authentic instrument provisions onto the Annex III form, has a point.183

176 Art 21(2) para 1 does contemplate what would exceptionally amount to a transfer of limitation periods in certain circumstances (see below) but the basic need for an enforceable domestic decision remains. 177 Picht (n 111) para 10, 338. 178 Art 20(1)(a–b). 179 The direct production of a German authentic instrument before the English authorities would proceed differently than if the creditor supplied a semi-completed form to the German authorities for onward transmission to the English central authorities. See discussion above of C-283/16 MS v PS. 180 Art 20(1)(c). An unofficial EU form for these arrears is available. 181 eg Not necessary for Franco-Belgian applications but probably necessary for Hungarian-French applications or for Spanish-Bulgarian. 182 Art 20(3). It can only be hoped that the creditor will make an appropriate selection from this deplorably wide class of persons. 183 Had this option been as unambiguously available to the enforcement venue in the litigation between Vogel and Lothschutz discussed in ch 5 at III.v. much time and money could have been saved.

302  The Maintenance Regulation The bases on which the enforcement venue may refuse or suspend enforcement are set out by Article 21. Though limited in a general sense, these bases are somewhat wider than might have been expected had there been no Hague Conference instruments by the end of 2007. Article 21(1) allows the Member State of enforcement to use its existing grounds for refusing, suspending enforcement according to its own law of enforcement to the extent that these enforcement venue grounds are compatible with Article 21(2) or (3). If there is a clash between domestic refusal bases and the Article 21(2–3) provisions, the latter must prevail.184 Article 21(2) requires that, if the debtor so applies, the competent authority in the Member State of enforcement must refuse the enforcement of the decision (or a part of it) if the domestic right to enforce that decision (or the relevant part of it) has been ‘extinguished by the effect of prescription or the limitation of action, either under the law of the Member State of origin or under the law of the Member State of enforcement, whichever provides for the longer limitation period’.185 Though this provision emphasises the importance of continued domestic enforceability (possibly it is more exact to speak of the importance of there being no suspension of validity in the Member State of origin). It is however difficult to conceive of Article 21(2) para 1 being applied, even via Article 48(2), in the context of the enforcement of a maintenance authentic instrument; unless the Member State from which it originates provides limitation and prescription periods for particular types of non-notarial authentic instruments. The second paragraph of Article 21(2) is potentially relevant to authentic instruments, it allows for the possibility that the enforcement venue may, when the debtor applies on this basis, wholly or in part, refuse to enforce a ‘decision’ that is irreconcilable with a decision from: a) the Member State of enforcement; b) from another Member State; or c) from a third State if that decision would be recognised in the Member State of enforcement. The enforcement venue has a discretion whether to allow (allow in part) or to refuse (or refuse in part) enforcement in such circumstances. This ‘irreconcilability’ cannot, according to Article 21(2)’s third paragraph, arise merely by the presentation of a decision that modifies an earlier decision. As Article 48(1) equates authentic instruments and court settlements with decisions for the purposes of applying Chapter IV it is natural to read the second paragraph of Article 21(2) to include the Article 48(1) titles within the class of decisions capable of giving rise to irreconcilability via Article 21(2) of the Maintenance Regulation. Is an inclusive reading of Article 21(2) paragraph 2 affected by Article 48(2)’s ‘as necessary’ requirement? There is no difficulty arising from the Chapter IV location of Article 21(2), but can irreconcilability arise in the context of the recognition and enforcement of an authentic instrument? It is suggested that given

184 The point is elementary but in an analogous form it arose in Case C-283/16 MS v PS ECLI:EU:C:2017:104. 185 Art 21(2) para 1.

Operation of the Regulation: General Requirements  303 the different and potentially conflicting jurisdictional bases for divorce, because of the concessions already granted to authentic instruments by the Maintenance Regulation, and because of what would otherwise be problems arising in relation to irreconcilability between maintenance obligations and other status decisions, it can and must so apply. Further there are compelling reasons necessitating (as per Article 48(2)) an inclusive approach to the combinations of enforcement titles that should be assessed when considering debtor-pled irreconcilability at the point of enforcement in relation to titles that are automatically recognised and enforceable. Maintenance obligations may still be irreconcilable with other decisions whether they are found respectively in judgments or in Chapter VI titles. If the facts of Hoffmann v Krieg are varied to mean that H was required by a foreign authentic instrument (instead of by a foreign judgment) to make payments to his wife K based on the conjugal obligations he owed to her, the declaration of divorce between H and K in the enforcement venue causes an irreconcilability that is just as palpable.186 Equally, a foreign authentic instrument requiring ‘A’ named as the father of a child to pay child maintenance to his child could potentially trigger Article 21(2) paragraph 2 if there was a decision of the enforcement venue that decided ‘A’ was not the father of the child. It is suggested that Article 21(2) paragraph 2 provides the enforcement venue with a necessary means of considering conflicting maintenance obligations and a sensibly discretionary means of ‘resolving’ such irreconcilability by fine-tuning the enforcement permitted by the Regulation in the Member State of enforcement. The German literature supports this suggested construction,187 but in Germany the issue does not arise in quite the same manner because the Germans decided to equate incoming maintenance obligations contained in authentic instruments and settlements with ‘decisions’ capable of preclusive effect for the purposes of the operation of German civil procedure laws: thus an incoming maintenance authentic instrument presented in Germany under the Maintenance Regulation is classed and treated as a ‘decision’ in its interaction with the German ZPO (or other equivalent civil procedure code) and for this purpose is not treated as an incoming authentic instrument. The debtor of an incoming maintenance authentic instrument is thus deprived of the usual advantageous ZPO (or equivalent) legal remedies provided to domestic and incoming authentic instruments at the point of enforcement.188 At first sight this is baffling. It can hardly be an effect of Article 48(1)’s limited equation between different enforcement titles, which the Regulation continues to define in three different categories. Still less can it be a response to Article 21(2) paragraph 2 apparently equating authentic instruments

186 Case 145/86 Hoffmann v Krieg [1988] ECR 645. 187 Andrae in Rauscher (n 114) Art 48 para 18, 678–79 and Picht (n 111) para 10-12, 338–39. 188 He cannot benefit from the much wider investigatory assessment for authentic instruments, and other titles that lack preclusive effects, at the point of enforcement. Instead he is restricted to the more limited possibilities at the point of enforcement associated with judicial decisions that do possess preclusive effects.

304  The Maintenance Regulation with judgments in terms of irreconcilability. Considered in isolation these different parts of the Regulation merely provide for the incoming authentic instrument, etc, to be capable of engaging with irreconcilability, on a discretionary basis, for the specific purpose envisaged by the Regulation: there is no indication of any wish by the legislators to attempt to equip incoming maintenance authentic instruments with an unprecedented form of preclusive effect (applied in Section 1 on a discretionary basis) to elevate something that is not a judgment into a judgment for the purposes of enforcement under domestic civil procedure laws.189 It is thus suggested that the German response is a consequence of domestic German issues best revealed by considering the eventuality that Germany had adopted a contrary position to the one it has taken. If the usual domestic legal remedies normally provided to the authentic instrument debtor by the ZPO (and other civil procedure rules) were allowed to operate without restriction, incoming maintenance authentic instruments would allow their debtors to protract enforcement while running-up legal costs for the creditor (who might also be a legal aid recipient via Chapter V of the Regulation and funded in those proceedings to oppose the debtor’s enforcement remedy applications by the German enforcement venue). The French legal system’s more robust approach to the domestic enforcement of authentic instruments (without equivalent opportunities for debtors to dispute enforcement) obviates any need for an equivalent domestic provision in French law. The third paragraph of Article 21 empowers the enforcement venue with a discretion to decide to stay or suspend enforcement proceedings (wholly or in part) on the debtor’s application if the ‘competent court of the Member State of origin has been seised of an application for a review of the decision of the court of origin pursuant to Article 19’. As it relates to Article 19 the first sentence of Article 21(3) is suggested to be of only tangential relevance to those authentic instruments (if any) that can fall within Article 19. The second sentence of Article 21(3) does however appear to be of more general relevance and to include authentic instruments; it reemphasises the importance of the continued domestic enforceability of the authentic instrument and clarifies that if the debtor so applies to it, the competent authority in the Member State of enforcement must, this matter is not discretionary, ‘suspend the enforcement of the decision of the court of origin where the enforceability of that decision is suspended in the Member State of origin’.190 Such suspension in the Member State of origin could arise in response to domestic orders if the debtor challenged the authentic instrument before the courts of the Member State of origin. Section 1 closes with Article 22 which repeats the important scope point that the operation of the Regulation to recognise and/or to enforce a maintenance

189 Indeed Recital 13 makes it plain that the title is not intended to metamorphosise and Recital 25 specifically limits ‘recognition’. 190 Art 21(3) para 2.

Operation of the Regulation: General Requirements  305 decision is not intended to go any further by seeking to ‘imply the recognition of the family relationship, parentage, marriage or affinity underlying the maintenance obligation which gave rise to the decision’. The significance of this provision is that it means that an enforcement venue does not, by recognising or enforcing the maintenance obligation, also recognise the family relationship that gave rise to the foreign decision.191

G.  Recognition and Enforcement via Section 2 of Chapter IV If the authentic instrument was drawn-up before 18 June 2011 (such that the transitional measure in Article 75(2)192 applies) or is one that though drawnup or established on or after 18 June 2011 originates from the UK or Denmark, it is via Section 2 of Chapter IV and the Annex IV form that the creditor will seek enforcement elsewhere in the participating Member States via the exequatur-lite provisions of the Regulation.193 Among the non-2007 Protocol Member States, the category of Article 2(1)(3)(a) authentic instruments can only originate from the Scottish legal system via the registration of an enforceable agreement on maintenance in the relevant Books of Council and Session, otherwise there is a faint possibility that something that could be classified as an Article 2(1)(3)(b) authentic instrument could originate from Denmark or from a UK legal system; if it does so, recognition and enforcement will proceed via Section 2 of Chapter IV. The most common reason to use Section 2 of Chapter IV will however probably be that the maintenance arrangements at issue predate 18 June 2011. Article 23 of the Maintenance Regulation is modelled on Article 33 of the Brussels I Regulation; thus Article 23(1) requires recognition of the decision (equated by Article 48(1) with a maintenance authentic instrument, etc) in other Member States without any special procedure.194 Article 23(2) allows any interested party to apply for a decision that the decision shall be recognised and Article 23(3) ensures that if such recognition arises as incidental issue before a Member State court, that court shall have jurisdiction over the question of recognition. Article 24 is modelled on Article 34 and parts of Article 35 of the Brussels I Regulation, it provides a restricted and exhaustive list of specific reasons preventing the recognition (and hence also the enforcement) of any presented ‘decision’ in

191 Walker (n 64) 784. 192 Discussed above in s XI.B. Art 76 temporal application and Art 75 transitional provisions. 193 An authentic instrument registered in Scotland in June 2015 will proceed via Annex IV and Art 28 regardless of where it is enforced in the EU. An authentic instrument drawn-up in Belgium in June 2015 will proceed via Annex III and Art 20 regardless of where it is enforced in the EU. 194 BGH (DE) 10.12.2014 – XII ZB 662/13 where the German court confirmed and applied this.

306  The Maintenance Regulation the enforcement venue.195 These provisions apply (in theory) to judgments/orders/ decisions/authentic instruments and settlements without restriction: for authentic instruments and settlements this is unusual, EU private international law usually only allows a public policy exception to potentially obstruct the exequatur of an authentic instrument/settlement. As Article 48(1) of the Maintenance Regulation equates authentic instruments, etc, with ‘decisions’ for the purposes of applying Chapter IV, it appears to allow a wider range of exceptions to exequatur than other comparable EU Regulations. This potential is however subject to the practical restriction that differences between judgments and authentic instruments will mean that not all the Article 24 exceptions can in practice apply to the latter even with Article 48(2) adjustments. Walker makes the important point that Section 2 of Chapter IV lacks an Article 22 equivalent to reassure the enforcement venue that its recognition of the foreign maintenance obligation does not additionally operate to implicitly recognise the family relationship that gave rise to the foreign decision: in many cases this will not be an issue but if the maintenance obligation presented is deemed to be based on a controversial underlying family relationship by the enforcement venue it may make it more likely that recognition will be refused under Section 2.196 Though Recital 21, which can be read to make a similar point to Article 22, that is of more general relevance, it is doubtful that courts with access to Article 24 will resist refusing to recognise if they do not wish to be suspected of additionally recognising an underlying family relationship attracting controversy in their venue. The Article 24(a) public policy exception of the Maintenance Regulation is standard except that it is augmented by a second sentence that excludes public policy from being applied to the rules of the Maintenance Regulation relating to jurisdiction.197 The classic illustration of a breach of public policy in the context of a claim involving maintenance is provided by the well-known and preRegulation decision of the German BGH of 26/08/2009.198 The BGH decided that the requested recognition of a Polish judgment on paternity, based solely on the 195 In OLG Karlsruhe (DE) 06.12.2011 – 8 W 34/11 the German appeal court, faced with an appeal from a lower court that had mistakenly applied the Brussels I Regulation to an incoming maintenance decision, in rejecting the appeal ruled that Art 34 Brussels I Regulation and Art 24(a–b) Maintenance Regulation were essentially interchangeable in this context. The Austrian Supreme Court reached the same conclusion later in similar circumstances in OGH 3Ob115/15f 17.06.2015. 196 Walker (n 64), suggesting maintenance obligations arising from same-sex relationships or civil partnerships as probable problem areas, at 784. 197 Presumably intended to prevent public policy being brought into lis pendens disputes and probably derived from the second sentence of Art 35(3) Brussels I Regulation. See also Case C-386/17 Liberato v Grigorescu EU:C:2019:24 which saw the CJEU refuse to allow an otherwise unexceptionable judgment produced by a second seised court in breach of Brussels IIa lis pendens rules to justify refusal of recognition or enforcement without it also presenting a clear breach of an exception. 198 BGH, 26.08.2009 – XII ZB 169/07, discussed in English by K Siehr, ‘The EU Maintenance Regulation and the Hague Maintenance Protocol of 2007’ in The Permanent Bureau of the HCCH (ed), A Commitment to Private International Law, Essays in Honour of Hans von Loon 1st edn (Antwerp, Intersentia Ltd, 2013) 529 at 532.

Operation of the Regulation: General Requirements  307 hearsay evidence of the Polish grandmother caring for the child seeking maintenance in Poland, concerning a German man who denied this paternity (and indeed denied any sexual relationship with the absent mother who was alleged to work as a prostitute), and whose offer to undergo DNA testing was ignored by the Polish court, would indeed be contrary to its public policy: it further decided that recognising or enforcing the Polish judgment ordering maintenance would also be contrary to its public policy. Within Section 2 an outcome such as this remains possible in the enforcement venue199 and has encouraged others named as fathers to attempt to emulate its rejection of a maintenance obligation derived from a contested finding of paternity.200 Outside the field of paternity disputes, attempts to invoke Article 24(a) are as common as they are unsuccessful.201 The first chamber of the French Cour de Cassation has refused to apply Article 24(a) to prevent recognition of an English judgment concerning maintenance that a French ex-husband alleged had been obtained by ‘fraud’ due to his ex-wife acquiring an English habitual residence by choosing to live in England preparatory to seising the English court and procuring the disputed judgment; the court found that the English court had ruled that it had jurisdiction and produced a judgment that spurious fraud allegations directed at the wife could not affect.202 Earlier in a different case the same chamber of the Cour de Cassation, which had decided to refer the case back to the lower court, was necessarily somewhat equivocal on whether a French couple who had prior to their French marriage entered into a German matrimonial property regime could be held in breach of French public policy to the extent that their arrangement conducted before a German notary then prevented the wife from receiving an equalising French prestation compensatoire (somewhat equivalent to a lump-sum payment of maintenance) from the husband when the French marriage ended.203 Article 24(b) exactly reproduces the wording of Article 34(2) of the Brussels I Regulation but does not appear to disclose any potential for ‘as necessary’ application to the forms of recognition or enforcement possible with most forms of maintenance authentic instruments. Articles 24(c–d) essentially reproduce the wording of Articles 34(3–4) of the Brussels I Regulation concerning the refusal of recognition (and enforcement)

199 It cannot be applied via Section 1 cases as there is no public policy exception for Section 1 of Chapter IV. 200 Concerning the difficult area of establishing or denying paternity, the OLG Stuttgart (DE) 13.02.2012 – 17 UF 331/11 has held that neither the discontinuation of paternity testing due to lack of payment of fees nor the decision to admit into evidence a presumption of truth concerning a lady’s alleged fidelity contradicted German public policy. Similarly, OLG Hamm (DE) 28.06.2012 – II-11 UF 279/11 refused to treat Polish Member State of origin rules on DNA testing as contrary to German public policy. 201 The OLG Stuttgart (DE) 01.12.2014 – 17 UF 150/14 found that the use of a hypothetical income by a foreign authority to determine the debtor’s liability was not contrary to German public policy. 202 Cour de cassation Ch civ 1 du 25 mai 2016 15-21407 (AKA Mme X v M. Y [2016] I.L.Pr. 27). 203 Cour de cassation Ch civ 1 du 8 juillet 2015 14-17880.

308  The Maintenance Regulation by reason of given forms of irreconcilability between judgments:204 here however ‘decision’ is substituted for ‘judgment’ and unlike Article 21(2) in Section 1, the occurrence of such irreconcilability has an automatic (non-discretionary) consequence of preventing recognition or enforcement. It is suggested that Article’s 24(c–d) irreconcilability must also include authentic instruments and settlements given the adjustments to the Regulation text and the enduring potential for irreconcilability to arise in connection with different decisions205 on divorce/parental responsibility jurisdictions. In common with Article 21 from Section 1, the final paragraph of Article 24 clarifies that ‘irreconcilability’ under Article 24(c–d) cannot arise merely by the presentation of a decision that modifies an earlier decision. Article 25 requires, there is no discretion on this point, that a court in a Member State from which recognition is sought of a decision from non-Hague Protocol Member State (the UK or Denmark) shall stay the proceedings if the ‘decision’s’ enforceability is suspended in the Member State of origin by reason of an appeal. This narrow basis for the mandatory grant of a stay in the enforcement venue is supplemented by Article 26 which indicates that a decision from non-Hague Protocol Member States that is enforceable domestically shall be enforceable in another Member State when, following an enforcement application by an interested party, it is declared enforceable there. According to Article 27(1) the jurisdiction to make such enforceability declarations belongs to the courts or competent authorities of the enforcement venue as notified by the Member State to the Commission via Article 71; local jurisdiction is determined either via the habitual residence of the debtor or according to the place of enforcement.206 The procedure for a declaration of enforceability per Article 28 of the Regulation, construed via Article 48(2), requires the application to be accompanied by an authentic copy of the authentic instrument (or the relevant part thereof)207 plus a completed Annex IV form.208 The Annex IV form will be completed in most cases by the official or body that drew-up or otherwise established the authentic instrument in collaboration with the central authority of

204 See discussion of Hoffmann v Krieg and irreconcilability above. In OGH 3Ob11/16p 27.04.2016 the Austrian Supreme Court found no operative irreconcilability in two Swiss orders concerning maintenance presented in Austria under Art 27(3) of the Lugano Convention 1988. 205 There must however be two ‘decisions’ as confirmed by OLG Karlsruhe (DE) 06.12.2011 – 8 W 34/11 rejecting the contention that a Hungarian Maintenance decision was irreconcilable under Art 24(c) with a merely pending German paternity test. As discussed by P Gruber, ‘Die Vollstreckbarkeit ausländischer Unterhaltstitel – altes und neues Recht’ [2013] IPRaX 325 at 327. 206 Art 27(2). 207 Art 29 deals with non-production in terms essentially identical to Art 55 of the Brussels I Regulation. 208 Art 38 forbids the Member States from imposing charges, duties or fees for the declaration of enforceability that are calculated according to the value of the maintenance claim: of course, differently calculated charges may be applied by the enforcement venue.

Operation of the Regulation: General Requirements  309 the Member State of origin. If however the creditor prefers to take a more direct route to enforcement, the Annex IV form will be completed either by the notary/ other authority for the creditor or will be collaboratively completed by the two.209 According to Article 28(1)(c) the contents of the form may be transliterated or translated if this is necessary (as in relation to the comments on cost saving made concerning Article 20(1)(d) above). There can however be no routine requirement for the creditor to translate the authentic instrument/decision unless such is required because of an Article 32 or Article 33 appeal in the enforcement venue.210 Article 30 provides that the declaration of enforceability is to be immediate on completion of the Article 28 formalities (or no later than 30 days later than such completion) in all but exceptional circumstances where it is impossible to give the declaration within that time-frame. As with the closest equivalent provision in the Brussels I Regulation, there is no potential for the debtor to make submissions on the application at this time. The applicant with a recognisable authentic instrument can, according to Article 36(1), still immediately proceed to provisional or protective measures, available in the enforcement venue, against the debtor even before the recognition has occurred and without any prior need for a declaration of enforceability.211 Once a decision concerning the declaration of enforceability, which Article 37 allows to be granted partially, is made, the applicant must then be notified of the outcome and the debtor must be served with any declaration of enforceability.212 A first level appeal against a declaration of enforceability must be lodged within 30 days or 45 days of service depending on whether the enforcement target is habitually resident in the same Member State in which enforcement is sought.213 Appeals by either creditor or debtor are governed by Article 32 as a first level appeal214 and then via Article 33 (if possible) on a second level appeal: each must be made to the courts and according to the procedures notified to the Commission via Article 71. In either case, Article 35 provides for a mandatory stay of proceedings (on the application of the party against whom enforcement is sought) in the enforcement venue if the enforceability of the decision is suspended in the Member State of origin because of an appeal there.

209 Case C-283/16 MS v PS concerning Art 20 and discussed above. 210 Art 28(2). 211 Art 36(1), once the applicant has the declaration of enforceability he can apply for protective measures via Art 36(2). 212 Art 31(1–2). If the authentic instrument debtor was involved in the ‘creation’ of the authentic instrument there is no need to serve him with it (or the relevant extracts) at the same time; if however the debtor’s involvement was less overt in an Art 2(1)(3)(a) authentic instrument created by registration or was via the Art 2(1)(3)(b) form of authentic instrument, it may be that such service of the relevant parts of the enforcement title is also required. Art 37 deals with partial enforcement, it may be requested as such by the applicant or a consequence of the enforcement court deciding that some parts of the relevant title are not able to be so enforced. 213 Art 32(5). 214 Art 32(4) requires Art 11 to be applied if the enforcement target makes no appearance.

310  The Maintenance Regulation

H.  Common Provisions The common provisions consist of Articles 39–43 of the Regulation and they all apply regardless of whether the Member State of origin is a party to the 2007 Hague Protocol. The operation of these provisions in the context of the recognition and enforcement of authentic instruments is permitted by Article 48(1) but is subject to the ‘as necessary’ caveat of Article 48(2) and the possibility of the direct approach to enforcement permitted by the CJEU in C-283/16 MS v PS. Article 39 is an unusual common provision that allows a court of origin a discretion to decide whether to declare provisional enforceability concerning a maintenance ‘decision’ even if an appeal is possible and regardless of whether its national law provides for this enforceability by the operation of its law. As explained by Recital 22, the legislator’s intention was a partisan one in so far as it sought via Article 39 to advantage the assumed typical maintenance creditor in need of financial support by speeding the payment of such support.215 As a partisan provision that seeks to give Member State courts a power that normally would originate from domestic civil procedure law, Article 39 is controversial and somewhat unclear if considered against orthodox notions of vires and competence. This lack of clarity is plain from the fact that Hilbig and others have had to suggest that Article 39 should only apply to decisions arising on or after 18 June 2011216 and further that it probably should only apply to the positive maintenance obligation component of any such decision that the stereotypical creditor seeks to receive as a payment.217 The question here though is, given Article 48(2), can Article 39 apply to authentic instruments? Article 39 envisages a process involving a court in the Member State of origin which declares provisional enforceability. Can this be translated via Article 48(2) to the context of an authentic instrument originating from that Member State? To the extent that a State of origin court does make an Article 39 declaration over a decision taking the form of an authentic instrument, it is unproblematic to regard Article 39 as applicable to that declaration concerning an authentic instrument. That this possibility creates a distinction between those maintenance authentic instruments that are and are not equipped with Article 39 215 It is widely deduced/assumed in the German literature that the partisan tenor of Recital 22 means that maintenance decisions favouring the typical debtor (eg a decision that no maintenance is due; or ordering repayment of an overpayment, etc) are not to benefit from Art 39, see Hilbig (n 174) Art 39 para 4 at 292 (citing Gruber (n 121) 138 in support). Martiny (n 146) agrees para 41, 656. Without a clarifying decision from the CJEU it is difficult to be sure whether these assumptions, which though they follow the partisan trend of the legislators are also very convenient for the present organisation of the German legal system on matters of maintenance, are correct. 216 Hilbig (n 174) Art 39 para 4 at 292 (citing Gruber (n 121) 138 in support). 217 ibid, Hilbig (n 174) para 5 restricting the potential to the pure maintenance claim component of a decision allowing the maintenance claim prioritised by Recital 22 but not extending to include decisions on other matters that though germane to the Regulation do not concern the payment of maintenance to the creditor (eg recovery of overpayments or the costs decision associated with the rejection of a maintenance claim). Martiny (n 146) agrees with this analysis para 41, 656.

Operation of the Regulation: General Requirements  311 provisional enforceability is not intrinsically problematic: such a distinction exists for judgments that do not benefit from the exercise of the Article 39 discretion. The identity of the court that may grant the Article 39 provisional enforceability may be extended to administrative authorities via Article 2(2) but it seems unlikely to also extend to include a notary who acts as such concerning a maintenance obligation in an authentic instrument he has drawn-up.218 Though it can be concluded that it is possible in certain circumstances for Article 39 to apply to an authentic instrument which then comes before a court in the Member State of origin, why would it be necessary for it to do so? If a maintenance authentic instrument is to be enforced via the Regulation it must first be enforceable in the Member State of origin (as made plain by diverse Regulation provisions including Article 48(1) and the Annex III and IV forms): equally, its initial domestic enforceability must survive subsequent attempts by the debtor to undermine its cross-border enforcement by attacking its domestic enforceability. Though these facts suggest that Article 39 will usually have no relevance for most authentic instruments concerning maintenance, it does not follow that it has no relevance at all. It is suggested that Article 39 might be relevant in two circumstances: a) if the authentic instrument originates from administrative authorities (as specified in Article 2(2) and Annex X) that then seek to clarify that their ‘decision’ taking the form of an authentic instrument is to be provisionally enforceable; or, somewhat more speculatively but in keeping with the pro-creditor policy as expressed in Recital 22 and Article 39; b) if the court of origin should be faced with a domestic enforceability challenge that would ‘cut-off ’ the flow of maintenance from the authentic instrument debtor it could possibly interpret Article 39 as giving it a discretion to facilitate the continued payment of maintenance in the enforcement venue for the duration of the challenge. Article 40 explains how a recognised decision shall be invoked and has some relevance to authentic instruments. Article 40(1) requires the party who would so invoke to produce a copy of the decision, ie the relevant parts of the authentic instrument, that suffices to establish its authenticity in the Member State of origin. If necessary, Article 40(2) permits the court before which the decision is to be invoked to request an Annex III form from a Section 1 applicant (or an Annex IV form from a Section 2 applicant) containing extracts from the enforceable title as completed by the relevant authority that drew-up or otherwise established the authentic instrument.219 Article 40(3) allows transliteration or translation of the Annex III or Annex IV form, again if necessary, on terms identical to Article 20(1)(d) and Article 28(1)(c). Article 40(4) essentially repeats Articles 20(3) and 28(3).

218 Naturally, if the notary is from a Member State legal system that allows him to act as a judge/court in this context he may apply Art 39 (at his discretion) but he does so as a judge/court and not while acting as a notary. 219 Art 40(2) repeats that the court of origin shall issue such an extract at the request of any interested party.

312  The Maintenance Regulation The first sentence of Article 41(1) indicates that, subject to the Regulation’s provisions, the enforcement procedure concerning incoming Member State decisions is governed by the law of the Member State of enforcement.220 This clearly applies to authentic instruments. The second sentence of Article 41(1) confirms that incoming ‘decisions’ (including settlements and authentic instruments) that are enforceable in the enforcement venue (ie because they comply with the requirements imposed by the Regulation for the relevant incoming enforcement title) must then be enforced in the enforcement venue under the same conditions as would be a decision or authentic instrument, etc, which had been given or drawn-up in that enforcement venue: this position of equivalence is then however modified by Article 41(2) which exempts the party ‘seeking enforcement of a decision given in another Member State’ from any immediate need to follow any enforcement venue rules that would require that he has a postal address in that venue or to immediately appoint an authorised representative in that location. The latter innovation differs from the nearest contemporaneous equivalent provision of Article 40(2) of the Brussels I Regulation and again aims to speed the process of maintenance recovery in the circumstance that service requirements do not otherwise intervene. Concerning the appointment of a representative, this innovation is revealed to be partial by the last clause of Article 41(2) that preserves the possibility that such an appointment of a legal representative may eventually be required by the law of the enforcement venue.221 Article 42 forbids the enforcement venue in which a declaration of enforceability, recognition or enforcement are sought from undertaking a révison au fond222 to review of the substance of the decision ‘given’ in the Member State of origin.223 Such a provision is commonly found in EU Regulations dealing with private international law and as there are no indications that the legislators did not intend it to also apply to authentic instruments this application will be assumed.224 As argued above in previous chapters, the prohibition on a révison au fond poses no problems if it is applied properly to protect the content of the decision, terms of settlement or enforceability of the authentic instrument obtained in the Member State of origin from the mischief it is intended to prevent (ie a substantial review of already decided/determined matters undertaken again in the enforcement venue). Nothing in Article 42 can however be construed to also forbid investigations in the enforcement venue arising from the alleged operation of the provisions of the Maintenance Regulation itself (eg Article 42 does not prevent the operation of the 220 C-283/16 MS v PS AKA S v S EU:C:2017:104 in which the English decision to funnel applications via its central authority (which was slower than a direct application to a court) was condemned. 221 Andrae in Rauscher (n 114) Art 41(2) para 11, 650. 222 Concerning the concept of a révision au fond, see ch 5 and ch 4 above. 223 The Austrian Supreme Court refused to ‘review’ the Maltese mediation in OGH 8Ob51/17h 30.05.2017. In OLG Stuttgart (DE) 01.12.2014 – 17 UF 150/14 the debtor was not permitted to question the use of a hypothetical income for him to set his maintenance liability by the Member State of origin, nor to ask that his actual income be substituted in the enforcement venue by the enforcement court. 224 ibid, the Austrian Supreme Court also made this assumption at para 3.1.

Application of the Maintenance Regulation  313 Chapter IV Section 2 procedures when they are relevant, and nor does it prevent objections to the claim going to whether the Regulation actually applies in terms of subject matter and scope, etc): equally, both events legitimately affecting the domestic enforceability of the authentic instrument in the Member State of origin, eg an instrumentum challenge or a negotium challenge,225 and events subsequent to the authentic instrument are unaffected by Article 42’s prohibition and remain available for such consideration as is feasible in the enforcement venue by the relevant authorities (eg during the actual enforcement stage the debtor may prove that she has already made the payments that are now being claimed, or, after the payments begin an application for variation based on change of circumstances may be lodged and considered, etc).226 The last of the Section 3 common provisions, Article 43, clarifies that the recovery of costs incurred by the operation of the Regulation is not to take precedence over the recovery of maintenance. This reflects the pro-creditor stance of the Regulation and hence presumably is equally relevant to the costs arising from the cross-border enforcement of a maintenance obligation contained in an ­authentic instrument.

XII.  Application of the Maintenance Regulation in the Context of Authentic Instruments There are few reported cases concerning the cross-border enforcement of maintenance obligations.227 This is due to various factors: an obvious reason is that parties with limited means cannot afford cross-border litigation. Cheaper and simpler means of resolving cross-border disputes, made available by the Maintenance Regulation (eg via central authorities of each Member State) or by other official domestic bodies acting for the creditor on a representative basis, reduce the probability of litigation occurring and then being reported.228 Equally, the possibilities of ‘amicable’ settlement of such disputes by non-contentious means or via quasi-administrative procedures restrict further the probability of

225 The negotium challenge might however also proceed elsewhere in accordance with the relevant private international law principles. 226 If opposition to enforcement arises after the recognition and enforcement stage (during actual enforcement) it should not be regarded as an extraneous issue not to be considered during the recognition and enforcement stage according to the CJEU in Case C-139/10 Prism Investments BV v Jaap Anne van der Meer ECLI:EU:C:2011:653. 227 Matters are otherwise in the tactical context of lis pendens when spouses seek to seise the court most advantageous to their intentions, discussed by Walker (n 64) 779. 228 Exceptionally see Case C-467/16 Schlömp v Landratsamt Schwäbisch Hall EU:C:2017:993 where mandatory Swiss conciliation before a Swiss conciliation authority (classified by the CJEU as a court for the purposes of the Lugano Convention 2007) affected the ability of the second seised German court to provide Ms Schlömp’s requested negative declaration that she in Switzerland had no obligation to pay a German authority for the care of her aged Mother residing in a German Care Home.

314  The Maintenance Regulation cross-border cases being published in a law report. Taken together, this means that it is unusual for typical parties to typical maintenance obligations to involve the courts in resolving such disputes as they may experience concerning issues of enforcement. The already small class of such obliging litigants becomes yet smaller if it is restricted to the context of cross-border maintenance involving authentic instruments. There is however one context of cross-border maintenance obligations where the principles set out in the last paragraph do not apply with the same force or effect: this rarefied context concerns the spousal provisions of foreign prenuptial agreements concerning high-net-worth individuals. As such agreements may well be contained in an incoming foreign notarial authentic instrument, this ­chapter concludes with a survey of the interaction of such agreements as concern spousal maintenance, with the English legal system.229 By way of explanation, the English focus is due to developments affecting what has been perceived to be the attractiveness of the English forum for a spouse seemingly subject to a foreign prenuptial agreement who, having acquired English habitual residence, now seeks to circumvent that agreement with the intention of benefitting from the fact that traditionally the English courts have treated such agreements as not necessarily binding, and to try to argue that the foreign agreement should either be dismissed or only given limited effect.230

A.  Prenuptial Agreements Relating to Spousal Maintenance Obligations and the English Court The prenuptial agreements in question are those that, inter alia, record the advance agreement of the parties to the nature and extent of the spousal maintenance obligation (if any) that each owes the other in the event of the breakdown of the marriage.231 The relevant cases for present purposes tend to concern one or more high-net-worth individuals meaning that the usual problems for spousal maintenance determination on divorce and thereafter (too few valuable assets to allow awards sufficient for both spouses) are inverted by a superfluity of assets that may render normal approaches towards computation of need, sharing or

229 See J Miles, ‘Marital Agreements and Private Autonomy in England and Wales’ 89–121; M Harper and B Frankle, ‘An English Practitioner’s View on Pre-Nuptial, Post-Nuptial and Separation Agreements’ 122–43; and E Cooke, ‘The Law Commission’s Consultation on Matrimonial Property Agreements’ 144–57 all in Scherpe (ed) (n 29). 230 For the classic approach of the English courts prenuptial agreements see F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, and for postnuptial agreements see Hyman v Hyman (1929) AC 601. As will be seen this approach is now regarded as anachronistic by the English judiciary who now tend to state a more measured approach to the issues of validity. 231 Though such agreements usually cover other issues of matrimonial property too, these wider issues are not relevant directly for present purposes.

Application of the Maintenance Regulation  315 compensation dubious, while also motivating each party to seek to break or uphold the agreement to their own advantage. The comparative generosity of English spousal maintenance law, given the absence of matrimonial property regimes in English law, and given the scale and possible forms of maintenance an English court may award (eg including lump-sum payments as maintenance) prior to or following a divorce are also attractive to claimants.232 Since Macleod v Macleod in 2008, issues of nuptial agreements have been played out before English courts not only fully aware of the attractiveness of their jurisdiction to whomsoever may be the relatively less-well-off of the two spouses, but also aware of the risk of an unjust outcome if a properly concluded pre- or postnuptial agreement between consenting adults, each of whom was aware of the implications of their actions, and each of whom had received appropriate impartial legal advice prior to its witnessed/authenticated signature, should be discounted by the English court for no other reason than because the parties sought to prevent that court (or courts in general) from re-determining the spousal maintenance arrangements they had already set out in the agreement.233 What Macleod v Macleod clarified for postnuptial agreements in 2008 was essentially re-confirmed for prenuptial agreements by the UK Supreme Court in 2010 in Radmacher v Granatino, which confirmed that though such agreements are still not binding on the English courts, they are not therefore to be dismissed. A court when considering the grant of ancillary relief is not obliged to give effect to nuptial agreements – whether they are ante-nuptial or post-nuptial. The parties cannot, by agreement, oust the jurisdiction of the court. The court must, however, give appropriate weight to such an agreement.234

In what follows, the interaction of the emerging English position on prenuptial agreements235 is considered in the context of the possibilities offered now by the Maintenance Regulation concerning such agreements included in incoming notarial authentic instruments.

232 Charman v Charman [2007] EWCA Civ 503 referring to London being described as, ‘the divorce capital of the world’ at paras 123–24. 233 In Macleod v Macleod [2008] UKPC 64 the Judicial Committee of the Privy Council examined the nature of the traditional hostility of English law finding much of it to be archaic and unnecessary and advising that a postnuptial agreement did not offend domestic public policy per se and further that it was potentially valid and could be deemed binding: a court which found such an agreement to be properly concluded should not, without more, choose to then regard it as inherently variable. Various caveats were mentioned concerning the finding of properly concluded: mutual intentions to be legally bound; no vitiating circumstances such as fraud or duress; agreement not now manifestly unjust due to change in circumstances; provision for children and no exclusion of children. 234 Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 para 2 (my italics). 235 The English Law Commission reported in 2014: there has been no legislation yet. See www. lawcom.gov.uk/project/matrimonial-property-needs-and-agreements/. Subsequent UK developments are discussed by J Keir, ‘Pre-nups and Second Look States – Not so Different After All?’ [2019] Family Law 528 see text associated with Keir’s fn 48.

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B.  Prenuptial Agreements in Notarial Authentic Instruments, the Maintenance Regulation and the English Courts Though the comment by the Supreme Court in Radmacher that the parties could not agree to oust the jurisdiction of the English court was correct in 2010, from 18 June 2011 the Maintenance Regulation has allowed exactly such ouster of English jurisdiction in the context of choice of court agreements covering spousal maintenance via Article 4 of the Regulation.236 For the reasons set out below it is presumed in what follows that an agreement concerning a maintenance entitlement to which the Regulation applies should be understood to have been: a) separated from the Brussels I Regulation; b) included in the scope of the Maintenance Regulation; and c) excluded from the Brussels Ia Regulation.237

i.  Choice of Court Clauses, the English Court and Article 4 of the Regulation Though the jurisdictional provisions of the Maintenance Regulation are not intrinsically significant for the law concerning authentic instruments, Article 4 choice of court agreements that allow the parties to select a venue and to deprive other courts of jurisdiction over the spousal maintenance issues covered by the Regulation are relevant because it is plausible that nuptial agreements drafted on or after 18 June 2011 will use Article 4 in this fashion to prevent the parties from seising non-nominated courts with such spousal maintenance claims. Article 4(1)(a, b, c) set out the conditions for the parties eligible to make such exclusive choice of court agreements and sensibly provides quite narrow options for their choices.238 It is argued (persuasively) in the English and German literature that rather than reading Article 4(1) to indicate that only Article 4(1)(c) is provided for spousal maintenance obligations, it is in fact correct to understand it as an addition to the options offered by Article 4(1)(a–b) of locating jurisdiction either; in a court or in the courts of a Member State where one party is habitually resident, or, in a court or in the courts of a Member State of which one of the parties has the nationality.239 Thus Article 4(1)(c) additionally offers spouses (or former spouses) the possibility to also choose as their exclusive venue either a court with jurisdiction to settle their dispute in matrimonial matters, or a court in the Member State

236 D Eames, ‘The New EU Maintenance Regulation: A Different Outcome in Radmacher v Granatino?’ [2011] Family Law 389 at 392. 237 See text associated with nn 25–27 above. 238 Walker (n 2) 65–66. 239 Walker (n 64) 774; Gruber (n 121) 133 and fn 64; Reuß (n 124) para 26; Andrae in Rauscher (n 114) para 42; Lipp (n 117) para 20. If the legislator intended to remove the most generally suitable venue possibilities contained in Art 4(1)(a-b) from spouses would he not say so explicitly? The restrictive interpretation would also cause a rift with regard to Art 8 of the 2007 Hague Protocol that would be contrary to the known intentions of the legislator to preserve such continuity.

Application of the Maintenance Regulation  317 of whatever may have been their last common habitual ­residence if this residence was of at least one year’s standing. Article 4(2) requires the agreement to be in ‘writing’ which includes communications sent and received by electronic means (eg email, a text-message, etc) with no further specifications as to form (eg not requiring signature, nor receipt of independent advice) agreement is presumably still capable of being derived from an exchange of communications if the fact of consent to a permitted agreement about choice of court can be inferred.240 Andrae suggests that consent and the consequences of imperfect consent should be examined as an autonomous concept.241 The omission of form and advice requirements is presumably intended to reduce the cost of opting for such a venue selection; it is however also an open door for the unscrupulous party who has a desirable location available from Article 4’s options plus the phone or email password of their spouse. The extent to which any non-nominated but otherwise potentially eligible venue may attempt to ‘police’ an Article 4 agreement when one party complains it was obtained by fraud or chicanery is as yet unresolved by case law; it may however be observed that given the already restricted range of eligible venue choices it should hopefully be only rarely that there are circumstances encouraging such misbehaviour. The courts should accordingly approach the issue with caution.242 Except that Article 4(3) forbids Article 4 arrangements applying to maintenance obligations concerning children under the age of 18 years,243 the provisions of Article 4 of the Maintenance Regulation are at first sight remarkably trusting of the potential conduct of the spouses in the actual or seeming conclusion of an Article 4 election. A second look reveals that the available options are less expansive than under Article 23 Brussels I Regulation and thus Lipp argues that the restricted options can be viewed as possessing an inherent anti-abuse function.244 Though Article 4 of the Maintenance Regulation is different to Article 23 of the Brussels I Regulation, aspects of the former may be revealed by considering the latter which, it should be remembered still applies to the Lugano States via Article 23 of the Lugano Convention 2007.245 Article 23 Brussels I Regulation made no accommodations for its application to maintenance matters, indeed it allowed the parties to conclude exclusive 240 In B v B [2014] EWHC 4857 (Fam) Parker J decided that it was possible in a maintenance pending suit case to infer an ‘offer’ of an Art 4 agreement (nominating England) from the prayers at the end of the husband’s divorce petition and further that the wife had signified her agreement to that ‘proposal’ by ticking a box and sending the papers back, see paras 44–45. With respect, this is not, ‘an agreement in writing’. 241 Andrae in Rauscher (n 114) Art 4 para 20, 536. 242 ibid, at para 52, 544 sharing Lipps’ unease at the thought of an enforcement venue attempting to so police the misuse of Art 4 agreements, see Lipp (n 117) para 25. 243 Equally, Art 4(4) does not allow a Lugano Convention State to apply to Art 4(3) cases concerning maintenance obligations owed to a child under the age of 18. 244 Lipp (n 117) para 23. 245 Art 23 of the Lugano Convention 2007 continues in operation for the non-EU Lugano States. Art 4(4) of the Maintenance Regulation however extends the possibilities offered by its Art 4(1) provisions by allowing the parties to also select as a venue a State party to the Lugano Convention 2007.

318  The Maintenance Regulation choice of court agreements concerning maintenance for children under 18.246 English authority from the President of the Family Division in M v V [2010] indicates that though if included in a foreign judgment presented for registration in England247 such a Brussels I Regulation choice of court agreement between the spouses concerning a maintenance obligation would necessarily be recognised and enforced under that Regulation, there was usually no need for this for the limited purpose of requesting that the English court decline jurisdiction given the production of a valid Article 23 agreement nominating another venue when all the other connections in the case also point in the direction of that fully functional (French) venue.248 Presumably this conclusion, minus the reference to issues of English forum conveniens, continues to hold true for he who would now seek to secure a comparable result from another non-nominated English court by producing a competent and valid Article 4 choice of court agreement.249 There is thus some scope for an investigation of validity (including consent) and construction, but if the agreement is contained in an authentic instrument this scope should normally be limited. In the unlikely event that the mere production of the valid choice of court agreement did not convince the English court to decline its previously supposed Maintenance Regulation jurisdiction, there remains the option of exploiting the automatic recognition provisions now provided by the Maintenance Regulation to require the English court to decline jurisdiction over the spousal maintenance obligations at issue. This will not stop the English court from considering other non-covered issues for which it may have jurisdiction (eg maintenance for children) but should reduce the number of competent claims involving spousal maintenance that may be brought before the English court. Eames250 went further to suggest, inter alia, that the Maintenance Regulation could allow those who employed a domestically enforceable authentic instrument featuring an Article 4 agreement nominating the Member State of origin (plus a prenuptial agreement determining the maintenance claim in a binding manner) to be immune from judicial oversight throughout the EU. This immunity would, he argued, arise because the Article 4 agreement would ensure that outside the State of origin no court would have jurisdiction, and each court would have to recognise and enforce the terms of the agreement on maintenance throughout the rest of the EU (if via Section 1 of Chapter IV without any public policy control). Eames’ continued to then suggest that it was possible, by including clauses that forbade maintenance claims inter se or that set a nominal sum for maintenance 246 M v V [2010] EWHC 1453, Art 23 jurisdiction clause in French Court Settlement nominating French mediation on an exclusive basis was accepted by the English court of depriving it of jurisdiction. 247 In M v V Sir Nicholas Wall P (the President of the Family Division) decided that the French judicial order was to be regarded as a judgment: see para 38. Had it been understood as an authentic instrument or court settlement, no Art 33 recognition would be possible via the Brussels I Regulation. 248 ibid, paras 54–55. 249 A choice of law agreement alone did not suffice as an Art 23 Brussels I choice of court agreement in NG v KR [2008] EWHC 1532 (Fam) per Baron J para 43. 250 Eames (n 236) 392.

Application of the Maintenance Regulation  319 and excluded all other claims, to additionally escape the supervisory jurisdiction of the courts in the Member State of origin. With respect, it is not possible to use an authentic instrument to exclude the Member State of origin’s supervisory jurisdiction concerning its own authentic instruments; this would be equivalent to attempting to lift oneself aloft by pulling on one’s own bootstraps. Though Article 4 of the Regulation allows the parties to nominate an available Member State court, challenges to the instrumentum of the authentic instrument in the Member State in which it was drawn-up are still possible in that place even if another is nominated by Article 4. Other challenges going to content/negotium may proceed in any forum that the relevant private international law rules indicate has jurisdiction and even in Eames’ case limited to maintenance that must include the court(s) given exclusive jurisdiction by the Article 4 agreement. In short, the use of an enforceable authentic instrument does not remove itself or the agreements it contains as to jurisdiction, applicable law or to the substantive maintenance issues from judicial scrutiny in the Member State of origin. Even in the other Member States its ‘immunity’ from judicial scrutiny and potential intervention is limited. If a claimant seeks to seise a nonnominated court and this is opposed via Article 4, an examination of the veracity of the consent claimed for the disadvantaged party and the legal meaning of the Article 4 clause will each be placed at issue. Though it should normally be that notarial authentic instruments will be relatively immune from concerns going to the presence of informed consent, atypical cases such as Radmacher can and do still occur to raise concerns relating to the reality of consent and the consequences of its absence. Further potential for engagement with a court in a different venue undesired by the maintenance debtor may arise if the creditor seeks to exploit a different jurisdictional base in the Regulation by arguing that the drafting of the choice of court agreement does not cover a given situation. Variation applications provide a good example: does Article 4 also cover a variation application? If, as suggested above, Article 8 does not apply to authentic instruments, the effect of an Article 4 agreement on a variation application concerning an authentic instrument setting maintenance is less clear and is complicated further by the Regulation expressly permitting variation to occur in Member States other than the Member State of origin; unless an Article 4 agreement binds a Central Authority that was not party to that agreement Article 56(1)(e) and Article 56(2)(c) variations seem to remain possible. Even if it is assumed that Article 4 can so prevail, will the choice of court agreement be construed to so restrict jurisdiction over variation to the nominated court?251 Though seemingly legally watertight nominations can be made 251 In BGH (DE) 10.12.2014 – XII ZB 662/13 the German BGH considering an earlier Irish judgment setting maintenance explained that Art 8(1), Art 56(1)(e) and Art 56(2)(c) each contemplated that such a judgment could also be varied outside the Member State of origin and observed that the ­relevant applicable law is determined via the 2007 Hague Protocol. Reasons of space prevent discussion of cross-border variation applications.

320  The Maintenance Regulation via Article 4, they will only be effective if the authorities before which they are produced agree that they cover the situation as it now transpires and do so in a binding manner.

C.  Assuming the English Court has the Jurisdiction to Proceed on Maintenance Matters under the Regulation; Other Provisions in the Prenuptial Agreement and Enforcement Issues i.  Applicable Law It is quite likely that the agreement will include a choice of an applicable law. Any such clause will however be without effect on the issue of maintenance if the English court finds that it is possessed of jurisdiction over that matter: the fact that the English court has this jurisdiction means that it must apply English law to maintenance applications. This outcome is not affected by Article 15 of the Maintenance Regulation directing that applicable law is to be determined by the 2007 Hague Protocol, which via its Article 8 allows a limited choice of an applicable law252 for spousal maintenance obligations, because the UK is not bound by the Protocol. Such an attempted applicable law selection has no effect in England and Wales and the applicable law on Regulation maintenance claims automatically defaults to English law.253 Thus, once the English court finds that it has jurisdiction over the issue of maintenance via the Maintenance Regulation, it applies English law as the applicable substantive and procedural law concerning these maintenance issues regardless of the presence of what in 26 other EU Member States would potentially be an effective choice of applicable law via Article 8 of the 2007 Hague Protocol. Though from the English perspective attempts to choose an applicable law will not displace the lex fori they may be deemed relevant as a factor indicating the intentions of the parties that the agreement should be legally effective with reference to a given legal system.254

ii.  Additional Provisions in the Nuptial Agreement Prenuptial agreements typically include provisions determining the nature and extent of any spousal maintenance payable and the circumstances in which it will 252 See A Bonomi, Explanatory Report to the Hague Protocol, at 51, and particularly on Art 8, 55–60, www.hcch.net/en/publications-and-studies/details4/?pid=4898; Walker (n 2) 87–91; M Zupan, ‘Innovations of the 2007 Maintenance Protocol’ in Beaumont, Hess, Walker and Spancken (eds) (n 3) 311 at 317; also M Pfeiffer, ‘Choice of Law in International Family and Succession Law’ (2012) 4 The Lawyer Quarterly 291 at 298. 253 Lord Collins of Mapesbury and Jonathan Harris (eds), Dicey Morris & Collins on the Conflict of Laws 15th edn (London, Sweet & Maxwell, 2015) Ch 18, iv; Beaumont and McEleavy (n 2) 19.40. 254 Radmacher v Granatino [2010] UKSC 42 para 74.

Application of the Maintenance Regulation  321 be paid. Such arrangements may indicate that there is no entitlement between the spouses, or may provide for the payment of given sums for a given time. As indicated above, the English court with maintenance jurisdiction under the Regulation is not bound by these agreements/arrangements. As however was also indicated above, the English courts (reacting to an influx of cases attempting to exploit archaic aspects of English law concerning agreements involving spousal maintenance arrangements and related agreements) now suggest that though lacking binding legal effects such agreements might be ‘weighed’ and considered before, assuming no serious defects in the agreement were detected, informing and assist the court’s subsequent decision on the effect of the agreement on the instant spousal maintenance claim. Seven months before the Maintenance Regulation came into operation in the UK, English litigation concluded concerning a foreign prenuptial agreement in a German notarial authentic instrument that, inter alia, deprived both spouses of any maintenance obligations to the other. That the matter was litigated through three English courts (culminating in the UK’s Supreme Court in Radmacher v Granatino)255 and concerned a foreign prenuptial agreement contained in a notarial authentic instrument drawn-up in less than ideal circumstances, makes this case eminently worth examining as an indicator of the attitudes of the English courts towards such prenuptial agreements in authentic instruments concerning high-net-worth-individuals. The parties to the agreement signed on 4 August 1998 were R (29 years old, later the wife) from an extremely wealthy family of German industrialists and G (27 years old, later the husband) who, though at the time of the agreement was employed as a banker in London on circa £120,000 per annum, was several orders of magnitude less wealthy than R and by the time his application for maintenance was heard by the English court in 2008 (following an English divorce in 2007) had sunk further in comparison as he had been made redundant by his bank in 2003 and at the time of the divorce and maintenance application had voluntarily become a postgraduate university student.256 The prenuptial agreement had been drawn-up at R’s instance, seemingly to propitiate her father and mother (the reports indicate that the conclusion of the agreement prior to marriage was a condition precedent for her to receive any further substantial transfers of wealth from family shareholdings controlled by her parents). The German notary, who previously worked as a notary for the family,257 testified before the English court that on the first occasion on this matter he was consulted and given detailed instructions by R’s mother on her daughter’s behalf, confirmed by R telephoning the notary the same day. The notarial fees were notionally paid by R.258 All subsequent preparatory discussions



255 Radmacher

(formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42. the time of the case G estimated R’s wealth at circa £100M. 257 NG v KR [2008] EWHC 1532 (Fam) at para 25. 258 The possibility that these scale fees would be paid by her family is suggested at para 29. 256 At

322  The Maintenance Regulation and decisions concerning the drafting of the agreement, including setting its terms and its revision from draft one to draft two (featuring the deletion of the first draft provisions requiring each party to provide figures describing their assets) appear to have included R and her family, but to have excluded G.259 G maintained that he had not seen the agreement before the day it was signed, R however said that two weeks prior to this she had orally translated a draft of the agreement from the German line by line for G’s benefit.260 This conflict of evidence was resolved by Baron J, with the assistance of the notes and testimony of the German notary, who found that on the balance of probabilities a draft of the second final version of the agreement had probably been available in the UK for roughly a week before signing occurred in Germany and commented: I believe that the basic terms were made clear to the Husband but, given the shortage of time, the fact that document was in German and was based on German Law I am clear that the Husband did not have sufficient time to seek a proper translation or separate legal advice.261

The German notary had advised R and her family, when told earlier that G (who was French but understood English too) did not understand German, that the agreement should be translated by a competent translator into a language the husband did understand and then made available to G in writing and sufficiently in advance of the date appointed for signing to allow him to take what the notary himself advised should be independent legal advice from another lawyer: Baron J found the absence of this translation plus the twin failures to inform G that the notary had advised that it was necessary and that he (G) should seek independent legal advice to be extremely unfair to the Husband because he had no realistic period for mature reflection or opportunity to take proper advice. Moreover, given the Wife’s attitude that this document was more for her father’s than her own needs I am satisfied that the Husband took it far less seriously than he should have. To this extent he was lulled into a false sense of security.262

Baron J also commented on the evidence of the notary concerning his reaction on the day of signing when he learned that though G had seen the German document, no written (or independent) translation had been provided and no independent advice sought or received; he was annoyed and proposed delaying the signing and drawing-up to give G the time necessary to consider a proper translation and take independent advice. In the event, the notary was persuaded that it would suffice (a conclusion to which G appears to have acquiesced) if he extemporised 259 See paras 29–30 draft documents sent to wife’s address and on initial occasion faxed to her too. Wife’s permission required to allow the notary to send the draft to her Father who, according to para 31, wished for revisions to prevent the husband to be inheriting any shareholdings via any future children by the operation of French succession law. 260 ibid para 25. 261 ibid para 33. 262 ibid para 34.

Application of the Maintenance Regulation  323 a translation of the German into English as he read and attempted to explain the nature of the agreement to G and R prior to its signature. In the Family Division of the High Court Baron J found that though the agreement had been signed with some understanding of its intended effects, it was sufficiently tainted by what to English eyes was unfairness and irregularity263 as to mean that it could not be treated as wholly determinative264 of the issue of maintenance and thus was only partially effective on this point. These two findings appear to contradict each other if the matter is considered in purely contractual terms. From the perspective of contract law principles, if the agreement was tainted its tainted parts should not be effective at all. It appears to follow that therefore the English court has unfettered jurisdiction over the assets as if there was no such agreement.265 The court was however unwilling to wholly dismiss the fact of the agreement and thus, as well as making rulings for the benefit of the children of the marriage (the agreement made no provision for any children to exist), the court ordered that G receive a larger capital entitlement than he had been offered by R266 by way of settlement of some £5.5M, access to a German property and the provision of an income of £70,000 per annum to allow him to interact with his daughters who were then expected to live in Germany. The Court of Appeal267 disagreed with Baron J’s approach and substituted £2.5M for an English house (to revert to R when the children were of full age), 263 NG v KR [2008] EWHC 1532 (Fam) para 38 per Baron J referring to: a) no disclosure of respective assets; b) lack of opportunity for G to take independent legal advice in the relevant seven-day period (the judge noted specifically that she cast no aspersions on the professional correctness of the notary’s actions – indeed he had advised that G should have independent legal advice – but also noted that he already acted for R’s family, only took instructions from R and her family and was probably paid by them); c) a lack of full comprehension by G of the legal consequences of his action in signing the documents; d) the failure of the agreement to make any provision for the birth of the two children; e) obvious unfairness in an agreement containing no possibility for an application for a financial award in circumstances of real need by either party. Later in the Court of Appeal Wilson LJ rejected most of these points (see paras 137–145) and provided two further objections to Baron J’s approach (see paras 146–48). 264 ibid para 139. Baron J concluded that, despite the problems, G had appreciated that the nature of the agreement he had signed was to mean that he had to be self-sufficient and could not claim maintenance from R. Therefore, Baron J proposed that the agreement should affect G’s entitlement to claim maintenance but not remove it altogether: the judge’s failure to precisely quantify her proposed ‘discount’ and to indicate its subsequent effect in mathematical terms on the exercise of her discretion contributed to the Court of Appeal overturning her findings and substituting their own. 265 As in F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45 at 67. 266 R had offered G £1M for a UK home, the use of a €500,000 home in Germany until the children reached majority, and €18,000 per annum until the children left secondary education. G asked for circa £9M. 267 Radmacher v Granatino [2009] EWCA Civ 649 (Thorpe, Rix and Wilson LJJ). The court tended towards a ‘contractual’ analysis of the agreement and the events surrounding it; the fact that G was a banker and therefore deemed to be familiar with business transactions appears to have encouraged the view in the court that he as a Frenchman with reasonable English should therefore – despite being kept in the dark concerning the extent of the wife’s actual or prospective assets – have appreciated the import of the relevant parts of the German law concerning marriage, maintenance and succession from an extemporised oral translation from legal German into English during a three hour meeting with the German notary who had drafted it (without his involvement) on the insistence and on the instructions of the wife-to-be’s family: with respect this is an unconvincing conclusion.

324  The Maintenance Regulation £700,000 to cover G’s debts, a sum to secure a house near Monaco (where the daughters would now live), £70,000 per annum and £25,000 for a car. The majority of the Supreme Court (despite Lady Hale’s strong dissent) agreed with these decisions and the reasoning of the Court of Appeal.268 Each appeal court preferred to conclude that as G was ‘a man of business’ and had signed a formal document the essential import of which he knew to be to prevent him claiming, inter alia, maintenance from R, he was therefore bound by its terms. With respect, the contractual and transactional analysis employed in the Court of Appeal and for the most part in the Supreme Court misses, or too readily dismisses, the obvious and seemingly deliberate unfairness of the procedures prior to obtaining G’s signature on a document written in a language he did not understand. The notary’s advice was designed to ensure G’s prior comprehension that he was to absolutely surrender any entitlement to maintenance, matrimonial property and all succession rights. The notary also sought to ensure that G, a party who had been excluded from the instructions and drafting discussions, should be advised to take independent legal advice and further should have the opportunity to actually do so. It is simply unrealistic to assume that a non-German speaking Frenchman working as a relatively junior banker in London who was not involved in the instructions or drafting of a German prenuptial agreement, who was not informed that the family notary had advised of the need for either a written translation in advance nor of the need for him to seek independent legal advice, and who was required to attend with his fiancé (R) at the offices of a German notary for a three-hour meeting discussing German marriage law, German maintenance law and German succession law (during which he was treated to an extemporised oral translation of the notarial document concerning German law into the notary’s best efforts at English) concluding with the signature of papers essential to please his future wife and her family would have had a proper appreciation of the significance of his actions given the arrangement of the matter and given the general reluctance of R to disclose the extent of her wealth. Howsoever this may be, Radmacher did not feature any attempt to ‘enforce’ the German authentic instrument; it was the fact of the authentic instrument, the fact that the husband was a banker and certain aspects of the later facts, particularly the husband’s decision to return to university, that appear to have persuaded the majority in the Supreme Court to de facto defeat G’s personal maintenance claim for circa 10 per cent of R’s very large fortune. This ‘weighing’ of selected facts and of aspects of the ‘agreement’ had already had a similarly decisive effect in the Court of Appeal. Even in the more open-handed High Court (which, the present author submits correctly, took the dimmest view of the circumstances surrounding the 268 Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42. The case was decided by a majority of eight to one. Lady Hale not only dissented but appears to be close to exasperation at certain points. At para 128 Lord Mance (with whom Lady Hale agreed on these points at para 138) expressly refused to rule on the obiter matter of whether a prenuptial agreement could or should have ‘contractual force’ imputed to it by the courts.

Application of the Maintenance Regulation  325 drafting and drawing-up of the agreement/authentic instrument) the ‘agreement’ was accepted as an important factor that reduced G’s entitlement to maintenance as a spouse. Concerning nuptial agreements, the majority of the Supreme Court held that, The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.269

This ‘Radmacher principle’ was followed in Z v Z [2011] by Moor J to prevent a French wife overturning valid French arrangements for separation entered into in 1994 with her husband before two French notaries and never effectively varied before the case was brought in 2008.270 Though it may, correctly, be objected that rulings concerning the transfer of entitlements to capital assets (ie ‘matrimonial property’) are not technically within the scope of Article 1(1) of the Maintenance Regulation, the English cases discussed below are provided to indicate the domestic operation of the Radmacher principle in the English forum which appears likely to be used for either true maintenance or for non-maintenance capital awards. From 18 June 2011 an English court with potential Regulation jurisdiction may be presented with a notarial authentic instrument (including a prenuptial agreement) itself eligible for automatic recognition (and enforcement) by the English court. Should this occur, the recognition and enforcement required by Article 48 and Chapter IV of the Regulation must precede the potential exercise of its Regulation jurisdiction by the English court. Thus, the prior freedom of the English court with jurisdiction to wholly ignore271 a foreign prenuptial agreement is thereby circumscribed by the terms of the prenuptial agreement to the extent that it is found to be contained in what the Regulation regards as a domestically enforceable authentic instrument, capable of recognition and enforcement in the UK, and covering the relevant maintenance issues. Though this represents a change from the point of view of English law, it is not necessarily quite as fundamental a change as might at first appear. Just as the effectiveness of a jurisdiction agreement is conditional on its drafting being legally effective and covering the issue at hand; an enforceable prenuptial agreement included in an authentic instrument must – when it is recognised as an enforceable agreement (as it is not a judgment it should not be ‘recognised’ as if it is one) – be construed to be effective and must further be found to cover the eventuality before the court. If on construing the terms of the prenuptial they are found not to cover the eventuality that is the subject of the maintenance application, why should an English court with jurisdiction not proceed to address the 269 Radmacher v Granatino [2010] UKSC 42, para 75. Lady Hale’s convincing dissent on the contractual approach did not question the relevance of the agreement but argued that the Court of Appeal erred in assuming its effect was to override the fact and status of the marriage between G and R, see paras 138 and 192–94. 270 Z v Z (Financial Remedy: Marriage Contract) [2011] EWHC 2878 (Fam). 271 As in F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45 at 67.

326  The Maintenance Regulation given application and, if required, apply the Radmacher principle to the agreement considered as foreign documentary evidence by considering what weight, if any, it is proper to give to the agreement? An enforceable nuptial agreement governing spousal maintenance in the event of divorce that is silent on the issue of children, does not prevent maintenance claims for those children nor from the more impecunious spouse to facilitate contact between him and the children if the parents are to live in different countries: at all stages of the Radmacher litigation the absence of any provision concerning children in the German prenuptial agreement made it clear that payments derived from the ex-wife’s assets would be required to allow the husband, still living in England, to buy and maintain a suitable house to allow his daughters, living near Monaco, to visit and stay with him in appropriate levels of comfort.272 Radmacher also featured obiter statements to the effect that had there been after-occurring need for either husband or wife, the court would not have considered that the fact that this matter was only addressed in the agreement by an absolute prohibition of maintenance claims inter se to prevent it from intervening. Such an eventuality occurred in Luckwell v Limata (2014)273 where Holman J ordered the breaking of the perfectly valid and unobjectionable spousal nuptial agreements because of after-occurring need affecting the ex-husband (now homeless, mentally ill and indebted) who was because of his need deemed to be entitled to claim a proportion of a sale ordered by the court of an asset owned by the ex-wife valued at £6.7M. In Brack v Brack (2018)274 the Court of Appeal intervened to vary the prenuptial agreements on maintenance on the twin bases of fairness and need to the advantage of an ex-wife who had become indebted by pursuing the crossborder maintenance claim seeking to overturn three different, conflicting and poorly drafted prenuptial agreements she had entered into with her then husband.

XIII. Conclusion Considered in terms of its provisions for authentic instruments, the Maintenance Regulation seems, despite the pro-creditor position it often initially adopts, to strike an ultimately sensible and fair balance between the legal and procedural rights of the creditor and debtor: it improves upon the dated provisions of the Brussels I Regulation concerning ‘maintenance’ and, by including a form of ‘recognition’ expands the cross-border circulation possibilities for maintenance authentic instruments that previously could only be enforced across borders. 272 Radmacher v Granatino [2010] UKSC 42. Additional arrangements allowed G accommodation, to be paid for by R, abroad when he went to visit their girls. 273 Luckwell v Limata [2014] EWHC 502 (Fam). Also in KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam) Roberts J, finding no fault with the English nuptial agreement, varied its terms to benefit the wife on the basis of fairness and her needs. 274 Brack v Brack [2018] EWCA Civ 2862.

Conclusion  327 That said, the role for (and thus the ultimate relevance of) maintenance ­authentic instruments in a Regulation that provides for maintenance to be claimed either by: a) a private international law route characterised overwhelmingly by automatic recognition and enforceability; or b) via the intervention of Central Authorities, must, in contexts as intimately associated with want, need and the lack of money as is typical of cross-border maintenance claims, depend on the domestic relevance of authentic instruments in relation to maintenance in the Member State of origin. Though there may be subsidiary roles for authentic instruments concerning maintenance in mediation or in the atypical context of the nuptial arrangements of the wealthy, their role at present appears minor although potentially extendable.

7 The Brussels IIa Regulation I. Introduction This chapter concerns the authentic instruments that fall within the scope of the Brussels IIa Regulation1 and will eventually fall within its successor recast Regulation. The Brussels IIa Regulation concerns jurisdiction and lis pendens over matters relating to the ending of a marriage (divorce, separation, annulment) and matters concerning parental responsibility for and to children: it additionally provides for the mutual cross-border recognition and enforcement of judgments, authentic instruments and certain agreements relating to ‘divorce’ and parental responsibility. It is on the possibilities for authentic instruments that this chapter focusses. Of the various European measures of private international law that have been developed to address ‘family law’ issues, those included in the Brussels IIa Regulation are the oldest and have involved the greatest number of legislative instruments. There have been four iterations of these measures: the Brussels II Convention of 1998;2 the Brussels II Regulation of 2000;3 the present Brussels IIa Regulation of 2003; and, the recast Brussels IIa Regulation of 2019.4 As of 1 August 2022, recast Regulation 2019/1111 will prospectively replace the current Brussels IIa Regulation such that matters within the material scope of the latter will then be dealt with via the former in its recast form. From 1 August 2022 the ‘old’ Brussels IIa Regulation will only be applied to the recognition and enforcement

1 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L 338, p 1. 2 Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters – Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters [1998] OJ C 221, 16.7.1998, p 2. 3 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses [2000] OJ L 160, 30.6.2000, p 19. 4 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction [2019] OJ L 178, p 1.

Introduction  329 of enforcement titles that once fell within its temporal scope, ie arose prior to 1 August 2022. Due in part to the frequency of legislative reform and the proximity of the recast Regulation to the writing of this book, a somewhat different ­methodology of treatment is adopted for this chapter. The marginal relevance of authentic instruments in the earliest Brussels II instruments is also a factor, as is the lack of reported litigation concerning such authentic instruments. The coverage of the Brussels II Convention and Brussels II Regulation is therefore brief, descriptive, and mainly occurs within this introduction. Thereafter the chapter focuses on the current law of the Brussels IIa Regulation and then the recast Regulation.

A.  Towards Intra-European Legislative Measures in ‘Family Matters’ The path to intra-European development of specific cross-border ‘family law’ instruments of private international law is complicated: it had and has an external and an internal aspect. The external aspects of the issues are found in the legal difficulties that emerged in the wake of the Second World War when what had just become Western Europe, and many other places besides, found every aspect of their laws going to the legal regulation of family life subjected to an unprecedented level and volume of testing by issues relating to mass migration, loss or destruction of official personal status records, hasty liaisons leading to hasty marriages in often fortuitous locations with or without serendipitous children, and unprecedented numbers of one-parent families, orphans and attempted adoptions. In response some States in post-war western Europe (and to a lesser extent elsewhere) gradually changed social and legal attitudes to the family and to the duties and obligations that it was understood to entail. Legal difficulties associated with these interconnected issues frequently touched upon private international law and the conflict of laws and have since that time become so much a part of these laws that it is now difficult to imagine a time when the subjects had not reached such conclusions or seen such remedial domestic legislation as was then introduced to attempt to resolve the different domestic manifestations of the upheavals of family and society attributable directly or indirectly to the Second World War and its aftermath in western Europe. Initially, the uncoordinated nature of these domestic responses concealed a risk of creating yet further complications for the unfortunates who could find that though a now regretted marriage in State ‘A’ would be recognised by State ‘B’ to allow the grant of a divorce and re-marriage in State ‘B’, that State ‘B’ divorce would not be subsequently recognised in State ‘C’ following the relocation of the new ‘spouse’ with two children (one from the first marriage and one from what the parties other than State ‘B’ regarded as the second marriage); the consequences of such non-recognition varied with location but could be profound in a world

330  The Brussels IIa Regulation where illegitimacy still carried serious legal and social disadvantages. The obvious remedy was to fix these problems at the international level. This might be attempted in a piecemeal fashion via bilateral arrangements between States, or, more ambitiously, via a multilateral convention targeting specific types of conflict between such States as would ratify and then properly implement the given Convention. From the 1950s onwards various international organisations such as the Hague Conference on Private International Law (HCCH), the Council of Europe and the International Commission on Civil Status (ICCS/CIEC) sought to address aspects of such ‘family law’ related conflicts issues via different multilateral conventions.5 To the extent that these efforts concerned the particular ‘divorce’ and parental responsibility issues that would eventually come to be governed within the EU6 by the Brussels IIa Regulation, the resulting conventions were of mixed success in attracting ratification and thereafter in their subsequent operation. Writing in 1995 Fallon7 recorded only two Member States (from a then possible 15) had ratified the ICCS’s 1967 Luxembourg Convention and seven for the HCCH’s 1961 Convention.8 Most popular was the Council of Europe’s 1980 Luxembourg Convention (which only Italy had not then ratified) followed by the HCCH’s 1980 Convention with 13 Member State ratifications (Italy and Belgium had not then ratified it).9 The position with the HCCH’s 1970 Convention was more equivocal: though none of the original six Member States ratified it until the Netherlands in 1981, followed by Italy in 1986 and Luxembourg in 1991,10 by 1995 eight of the then 15 Member States had so ratified (UK, Denmark, Sweden, Finland, Luxembourg, Italy, Portugal and the Netherlands) although the

5 M Fallon, The Valued Added by a European Union Instrument on Jurisdiction and the Enforcement of Judgments in Matrimonial Causes in the Light of Existing Conventions Ch 1, 2–3. Report requested by the European Commission 1995 (archived complete with spelling/grammatical mistake in title) at http://ec.europa.eu/civiljustice/publications/publications_en.htm hereafter Fallon report. Writing in 1995 Fallon identified three final conventions from the HCCH: Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations and Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, he also referred to what would become Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children www.hcch.net/en/instruments/conventions; one on the initiative of the Council of Europe, European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children www.coe.int/en/web/conventions/full-list/-/conventions/treaty/105; and one from the ICCS, Convention on the Recognition of Decisions Relating to the Validity of Marriages signed at Luxembourg on 8 September 1967 www.europeancivillaw.com/ conventmatbond.htm. 6 Except in Denmark which does not participate in the Brussels II instruments. 7 See Fallon (n 5) Ch 1, p 10. 8 At that time this convention was undergoing work by the Hague Conference that would lead to its ‘replacement’ by the new Convention of 19 October 1996 mentioned in the footnote above. 9 Both have since ratified it. Italy ratified later in 1995 and Belgium in 1999. 10 The Italian and the Luxembourg ratifications were subject to significant reservations. www.hcch. net/en/instruments/conventions/full-text/?cid=80.

Introduction  331 remaining seven then and now refused to ratify: thus the 1970 Convention on the Recognition of Divorces and Legal Separations did not apply to France, Belgium, Germany, Austria, Spain, Ireland or Greece. The fact that France was one of the seven Member States that did not ratify the 1970 Convention contributed to a legal problem within the then EEC that, by the 1990s, would encourage the development of the Brussels II Convention. The problem arose from a consequence of the interpretation of Articles 14 and 15 of the French Code Civil which told the French courts that they had jurisdiction over litigation involving any French national (or his obligations) regardless of his or its location; to respect and defend this exorbitant jurisdiction the French courts usually refused to grant exequatur concerning foreign judgments against French nationals presented for recognition and or enforcement in France. In the context of foreign ‘divorce’ judgments (and associated orders concerning parental responsibility) this led to a growing problem as if French nationals (which included persons with dual nationality if one nationality was French) within the EEC or the EC were made the subject of foreign (ie non-French) divorces and associated parental responsibility orders by a non-French Member State the divorce and the orders would be incapable of cross-border recognition or enforcement in France.11 The problem was said to be at its most acute in relation to Franco-German relations.12 Germany, another Member State not party to the 1970 Divorce Convention, did allow its courts to recognise and enforce French divorce judgments, etc, despite the involvement of a German national; as the French courts did not reciprocate, the possibility was created for the French national in denial (or desirous of applying pressure to the German spouse) to exploit the legal consequences of the limping marriage directly in the French legal system and indirectly in the German legal system. There were four ways to solve this not exclusively Franco-German problem: amendment of the French Code Civil; securing wider ratification of the 1970 Divorce Convention by Member States; attempting to negotiate a bilateral arrangement; or to propose a new international convention with specific effect limited to the EC. The first option was a matter exclusively for the French State but, given its wider implications for the global reach of French jurisdiction and ensuing domestic French recognition and enforcement obligations, was clearly a non-starter for this post-colonial power. The second option foundered on what may charitably be called the limited scope of the 1970 Convention,13 its peculiarities (it lacks direct 11 H Sonnenberger, ‘Deutschfranzösische Ehescheidungsprobleme’ [1992] IPRax 154. 12 Fifth Report of House of Lords Select Committee of 22 July 1997, Brussels II: the Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters, Introduction. https://publications.parliament.uk/pa/ld199798/ldselect/ldeucom/019v/ec0501.htm. 13 It only covers recognition (there are no provisions on enforcement) of the dissolution of the marriage, it permits the recognition venue to enquire into the jurisdiction of the court of origin and allows findings of fact to be examined anew if the decision was given by default. The recognition venue may also refuse recognition for breach of public policy, infringement of ‘defence rights’, and/or irreconcilability. Lastly, the participating State may enter a reservation (as did Italy and Luxembourg) to allow it to consider the merits of the case with a view to refusal of recognition if at the time the foreign divorce was granted the parties were exclusively nationals of States that did not allow divorce. See Fallon (n 5) 12.

332  The Brussels IIa Regulation rules of jurisdiction and there is no binding lis pendens mechanism giving priority to the first seised court)14 and, again, on the abovementioned wider implication for the French State.15 The third option foundered on the obvious point that though the Franco-German issue may have been the ‘loudest’ exemplar of the problem, it was not the only context in which this problem could or did occur.16 This left the fourth option of an intra-EEC measure as the only logical choice. Logical though it was, the fourth option was not without difficulty. If the issues are considered not from a global perspective but from an inwards looking European perspective, the reform involved in achieving the Brussels II Convention, and that by which it has been succeeded, represents successive attempts by the EEC, the EC and the EU to create measures of private international law to remedy cross-border issues arising from substantive domestic laws and procedures concerning divorce, marriage and parental responsibility the competencies for which still reside (subject to each Member States’ potential engagement with other non-‘European’ international Conventions or bilateral agreements) with the individual EU Member States. The difficulties arising from the basic disconnect between what has been developed to be a European competence17 over the private international law of ‘family law’ and the undoubted absence of any such European competence concerning the substantive domestic ‘family law’ issues, was magnified by the periodic addition of new Member States for whom the proposed private international laws could appear either too timid or too radical.18 Though such complications have been partially mitigated over time by attitude changes in particular Member States, eg the gradual acceptance of the possibility of divorce by Italy and Ireland, and by 14 These criticisms from the German perspective are provided by R Wagner, ‘Die Anerkennung und Vollstreckung von Entscheidungen nach der Brüssel II-Verordnung’ [2001] IPRax 73 at 74. 15 Fallon (n 5) at 17 and 20 mentions the inapplicability of the Convention to decisions to refuse a divorce (thereby allowing re-petitioning in other states) its lack of coverage of nullity, or orders ancillary to a divorce or concerning financial liabilities to children or parental responsibility and differences of domestic interpretation due to variable (and successive) domestic incorporations of the provisions of the convention into domestic law by dualist states such as the UK that, compared to the interpretations by monist States represent ‘a travesty of the original text’. 16 Fallon (n 5) 25–26 lists seven petitions received by the European Parliament from various nationals that includes various Member States as well as France and Germany. 17 This assumption, which is made to simplify the treatment, conceals many debates on this topic, for an introduction to the earlier debates see; P Beaumont and G Moir, ‘Brussels Convention II: a New Private International Law Instrument in Family Matters for the European Union or the European Community?’ [1995] EU Law Review 268; Fifth Report of House of Lords Select Committee of 22 July 1997, Brussels II: the Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters https://publications.parliament.uk/pa/ld199798/ldselect/ldeucom/ 019v/ec0501.htm; Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998) prepared by Dr Alegría Borrás Professor of Private International Law University of Barcelona [1998] OJ C 221, 27 (hereafter Borrás report). 18 Although it is a stereotype that does not properly factor in the former communist Member States, Member States from the northern parts of Europe tended to be more open to such proposals while Member States from the southern parts of Europe tended to be more resistant.

Introduction  333 an associated willingness to recognise foreign divorces, this mitigation must not be overestimated: the need to employ measures of Enhanced Cooperation in the present decade in the ‘family law context’ demonstrates continuing sensitivities. European private international law concerning certain ‘family law’ issues is not uniform in its application as is demonstrated by the so-called Rome III Regulation of 2010 concerning the applicable law of divorce and the ‘property’ Regulations of 2016.19 Though the UK has not participated in any of these Enhanced Cooperation Regulations, they exert an influence on the development of the other parts of the EU’s private international law that the UK is party to. Thus, the impact of the Rome III Regulation in the domestic laws of the participating Member States has been one factor in the development of the recast Brussels IIa Regulation. This is not to downplay the fact that for most Member States the expansion of European private international law, complete with recognition and enforcement obligations, into wider areas of family law remains a controversial and difficult matter, but rather to indicate that even the luxury of optional non-participation does not ensure entire isolation.

B.  The Road to the 1998 Brussels II Convention In a negative sense, the legislative history of what became the Brussels IIa Regulation begins with a decision to mostly20 exclude status and ‘family law matters’ from the EEC project that became the Brussels Convention of 1968. The decision not to include ‘family law’ matters in the Brussels Convention was indicated by the Jenard Report to be due to fundamental differences between the legal systems of the six founder States;21 it has been suggested since, apparently by Jenard himself, that this was a diplomatic way of indicating that the Committee had concerns that including such ‘family’ issues would have provoked a repeated triggering of the public policy exception in the context of cross-border recognition and enforcement applications to the disadvantage the new Convention.22 Progress in the realm of the European private international law of ‘family law’ has often been achieved as the result of decisions to omit (for the present) that which is too controversial between the Member States; such an approach is characteristic of the 19 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced ­cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L 343, p 10. 20 Except Art 5(2) Brussels Convention concerning special jurisdiction for maintenance claims, see previous chapter. 21 Jenard Report OJ C-59/1 [1979] 1, 10–11. 22 Fallon (n 5) 31 refers to subsequent remarks by Jenard to this effect cited at fn 21 as being present in ‘La Convention du Bruxelles du 27 Septembre 1968 et ses Prolongements’ (Jenard’s contribution to Repertoire notarial, Vol XI (Brussels, Larcier, 1994). Though the author has not been able to secure access to this book, the explanation of exclusion due to anxiety concerning potential overuse of the public policy exception was also advanced on 19/01/96 by B Sturlese, ‘L’extension du système de la Convention de Bruxelles au droit de la famille’ in Droit international privé travaux du Comité français de droit international privé, 13e année, 1995–1998. (Paris, Pedone, 2000). 49–70 at 51.

334  The Brussels IIa Regulation EU’s private international law in this area and has resulted in a legislative deçepage of different aspects of the corpus of family law as described by different private international law instruments drafted at different times for different i­ nternal23 and external24 reasons (also under different legislative competencies) within the EU. These instruments are often equipped with different procedures and, in the context of authentic instruments, may be associated with different terminologies. When the instruments are considered collectively they reveal an EU private international law of family law issues that varies with the location and perspective of the observer. The positive legislative history of what is now the Brussels IIa Regulation25 begins with a European Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters.26 Following approaches in July 1992 by the German delegation to the Working Group responsible for Judicial Cooperation and its British, French and Dutch members27 the idea of a new EEC Convention covering divorce and related issues was taken up by the rotating national Presidencies of the Council beginning over the second half of 1992 into 1993 (UK, Denmark, Belgium) and led to the issue and eventual collation of national questionnaires aimed at understanding the national issues and gauging the appetite of the Member States for a Brussels II Convention that might be achieved via the anticipated expansion of legislative competence concerning conventions promised and belatedly delivered by Article K.3 of the Maastricht Treaty in November 1993. During this period the ‘European Group on Private International Law’28 had also been working independently on a very ambitious proposal for a Brussels II instrument that would have covered jurisdiction, lis pendens and the recognition and enforcement of judgments in an astonishingly wide range of family law matters (marriage, matrimonial property, separation, divorce and decisions on 23 eg Franco-German relations. 24 Mainly in response to the work of the HCCH, eg the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 25 For an attempt to navigate through the early uncertainties, see Jörg Pirrung, ‘Unification du droit en matière familiale: la Convention de l’Union européenne sur la reconnaissance des divorces et la question de nouveaux travaux d’Unidroit’ (1998) 3(2–3) Uniform Law Review 629; W Kennett, the Brussels II Convention, (1999) ICLQ 467; P McEleavy, ‘The Brussels II Regulation: How The European Community Has Moved Into Family Law’ (2002) International and Comparative Law Quarterly 883 at 888; also P McEleavy, ‘Private International Law: Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction And Mutual Recognition’ (2004) International and Comparative Law Quarterly 503 at 504–05. See also the legislative history in the Commission’s Brussels IIa recasting proposal http://ec.europa.eu/justice/civil/files/family-matters/brussels2_regulation_en.pdf. 26 See Council Act of 28 May 1998 drawing up, on basis of Article K.3 of the Treaty on European Union, the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, [1998] OJ C221/01 (and see [1998] OJ C 221/02-05 for further information on the Convention). 27 Pirrung (n 25), text associated with fn 5. 28 On the nature and identity of this private group which sought to advise Europe, see Documents (1994) NILR 407.

Introduction  335 paternity/maternity and succession); it was proposed that this would be contained in a new Convention with recognition and enforcement organised around the latest existing recognition procedures of the Brussels Convention (and the 1988 Lugano Convention) that would, with certain amendments be made operative in terms of recognition and enforcement via Protocols to the existing Brussels and Lugano Conventions.29 This radical plan had been approved by the Group at their annual meeting held in Heidelberg in 1993 and was then sent (with an explanatory report from Professor Paul Lagarde) to the EC Council. The Secretary of the European Group (Professor M Fallon) was subsequently invited to address the EC Working Party, which however balked at the ambition of the Heidelberg Proposal and instead suggested that the contemplated provision should attempt to deal with only divorce, separation and annulment of marriage. It was in this attenuated form that the Council decided at the end of 1993 to thereafter explore the possibility of a new Brussels II Convention and associated amendments.30 After the circulation of yet more questionnaires by the Greek Presidency in the first half of 1994, the following German Presidency produced a draft convention limited to divorce separation and annulment; the French and Spanish delegations then requested that parental responsibility also be included in the draft convention.31 That parental responsibility had not been included initially was in part due to the awareness of the then ongoing work of the HCCH concerning what would become Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.32 Other factors are attributable to the narrowness of the problem that the new EC Convention was first intended to solve and to the re-occurrence of the understandable desire that the measures in any new EC Convention should succeed rather than summon forth stultifying waves of public policy challenges. That said, there were certainly powerful arguments of procedural economy in favour of the inclusion of parental responsibility: it would be wasteful for a court with the jurisdiction to rule on a divorce to not additionally have the possibility of ruling via an order of comparable cross-border efficacy on a related matter of parental responsibility. It seems that, inter alios, the Commission were also of the opinion that parental responsibility should be included from the nature and scope of the Study they commissioned from Professor Fallon which reported at the end of May 1995.33 The French and Spanish request succeeded

29 The original proposal text is found annexed to E Jayme, ‘Entwurf eines EG-Familien- und Erbrechtsübereinkommens’ [1994] IPRax 67. For an unofficial English translation from the 1993 French text see Proposal for a Convention concerning jurisdiction and the enforcement of judgments in family and succession matters [1995] NILR 169 with introductory note by H Duintjer Tebbens. 30 Borrás Report (n 17) para 8. 31 ibid. 32 ibid para 9. Also see the copious explanatory and other material provided by the HCCH at www.hcch.net/en/instruments/conventions/publications1/?dtid=3&cid=70. 33 The Study, cited in n 5 above, certainly proceeds on this basis as do the responses from most Member States.

336  The Brussels IIa Regulation in part; by mid-1995 the Council added in an admittedly very narrow form of ­ancillary parental responsibility orders to the scope of the draft Convention.34 Under the auspices of the Luxembourg Presidency in December 1997 a ­political agreement was reached that led to the final text of the Convention, a Protocol, and an explanatory report from Professor Borrás in 1998.35 The Brussels II Convention, which never actually entered into operation, applied to: a) civil proceedings relating to divorce, separation and annulment of marriage; and b) to the consequential civil proceedings covered by (a) that related to parental responsibility for the qualifying children of both spouses.

C.  From the Convention to the Brussels II Regulation and Thereafter to Brussels IIa Regulation Because of its long ‘gestation’ the Brussels II Convention arose towards the end of the period in which internal European measures of private international law would take the form of convention plus protocols and at a time when legal competence over civil cooperation could also be provided by the Treaty of Amsterdam. This led the EC to decide to replace and mildly update the Convention (before it could enter into force) with the Brussels II Regulation of 2000.36 The updating exercise did not change the narrow focus of the Brussels II Regulation on parental responsibility that still concerned only children of both spouses habitually resident in a Member State and only in the context of the forms of matrimonial proceedings to which the Regulation applied. To address valid and contemporaneous criticism of the foreseeable consequences of this undue narrowness,37 the Brussels II Regulation was itself quickly upgraded into the Brussels IIa Regulation of 2003: the upgrade left the provisions covering the jurisdiction and recognition and enforcement aspects of matrimonial proceedings essentially unchanged but widened the focus of the provisions on matters of parental responsibility to include all decisions on parental responsibility without first requiring that there be a connection to a parental divorce etc.38 34 Doubtlessly considering the impending Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. See Borrás Report (n 17) para 9. 35 Borrás Report (n 17) para 10. 36 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, [2000] OJ L160/19. 37 Unfairness could result from: omitting children of unmarried parents; treating children of the same family differently if one was a joint child and the other was not; and from requiring temporal alignment between divorce/matrimonial proceedings and a parental responsibility decision capable of circulating. 38 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/01. Though the Borrás report remains

Introduction  337

D.  Further Progress on Family Law Issues in European Private International Law Since this time the jurisdictional possibilities associated with cross-border maintenance claims via Article 5(2) of the Brussels Convention benefitted from the updated procedures of the Brussels I Regulation and then the exequatur-free possibilities offered by the 2004 EEO Regulation prior to being subsumed within the dedicated 2008 European Regulation concerning maintenance.39 A Regulation allowing the Commission to authorise a Member State to make certain ‘family law’ agreements with third States was also developed.40 A Rome III Regulation concerning the applicable law of divorce and legal separation (via Enhanced Cooperation) was achieved in 2010.41 These measures were joined in 2012 by a Regulation on Succession.42 In 2013 there was a Regulation concerning the mutual recognition of civil protection matters.43 In 2016 two further Regulations (both also via Enhanced Cooperation) concerning matrimonial property and registered partnership property were achieved.44 So numerous are the pieces of private international law that have been cut from the notional carcass of family law that if now reassembled as the abovementioned collage they imply a form, it is however a form that lacks invariance: the Regulations that presently describe the private international law of family law issues are not all applicable in all Member States, the resulting lack of the very transformational symmetry that such Regulations are designed to establish is a most unfortunate cost of the decision to legislate in advance of having achieved a consensus.

of relevance to the issues of divorce and separation, the Commission issued a Practice Guide to assist in relation to the new rules on parental responsibility, its latest version is https://publications.europa.eu/ en/publication-detail/-/publication/f7d39509-3f10-4ae2-b993-53ac6b9f93ed. 39 See chs 4 and 5 respectively. 40 Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations [2009] OJ L 200, p 46. 41 Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L 343/10. 42 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L 201 p 107. 43 Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L 181 p 4. 44 Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L 183 p 1, and, Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2016] OJ L 183, p 30.

338  The Brussels IIa Regulation It remains to be seen whether the EU (in cooperation or competition with the HCCH) can improve the existing asymmetries of its private international law concerning such family law issues. As for revisions by recasting, the EU has the upper hand and in 2016 the European Commission issued its proposal for a recasting of the Brussels IIa Regulation.45 At the time of writing the final version of the new recast Brussels IIa Regulation has recently been published in the Official Journal. The new Regulation, when applicable, will, inter alia, remove existing exequatur requirements; reemphasise the importance of hearing the child; improve the actual enforcement of decisions on parental responsibility, and affect cross-border authentic instruments while also increasing the cross-border relevance of private agreements if ‘certified’ by an appointed authority in the Member State of origin.

II.  The Limited but Developing Role of Authentic Instruments and Approved Settlements in the Brussels II Convention and Subsequent Brussels II Regulations As the foregoing description of the problems that motivated the development of the Brussels II Convention have made plain, the focus for divorce-issues was on ‘judgments’ not authentic instruments. At that point in time most European legal systems required a judgment, court order or court decree to end a marriage in an official sense.46 Of course, such judgments, orders and decrees were and are often technically also authentic instruments albeit ones originating from the court rather than from a notary or other non-judicial public officer; the width of the Brussels II concept of ‘judgment’ may obscure the fact that certain types of court-issued documents germane to ‘divorce’ proceedings are also authentic instruments and further tends to obviate the authentic instrument procedures rather than those provided for ‘judgments’. Despite the significance of non-Brussels II authentic instruments to other matters associated with divorce, eg in connection with the post-divorce division of matrimonial property by a notary, via notarial mediation, and notarially concluded ‘maintenance’ arrangements, both the width of the ‘judgment’ concept in the Brussels II instruments and the modern trend towards consensual divorce by private agreement also tend to obscure the different roles played by authentic instruments in different Member State in even ‘non-contentious’ forms of divorce. 45 COM (2016) 411 final. 46 Extra-judicial divorces/divorces by mutual consent (often involving a notary as either an a­ lternative to a court in former eastern bloc Member State or as in France acting to receive, check and ‘minute’ the agreement entered into by the parties represented by two lawyers prior to being sent to the notary) are however now possible in some EU legal systems: eg Belgium, Estonia, France, Latvia, Luxembourg, in a limited sense in Portugal and Italy, and in Romania. See https://e-justice.europa.eu/content_divorce45-be-en.do?member=1.

The Limited but Developing Role of Authentic Instruments  339 If during the 1990s divorce by mutual consent was available in a given Member State it required the parties to engage with their local court to perfect it via a ­judgment: in many cases though these ‘judgments’ were also authentic instruments issued by the court or other civil authority there was no independent significance for this technical fact. The then general need to involve the court, or an equivalent office, in even non-contentious divorces meant that married persons were not able to use other types of authentic instruments to bypass their Member State courts by visiting a notary or a registry office to attempt to secure a divorce (and the status modifications this involved) without involving the court. The Fallon Study, and its annexed surveys of the laws of France, Germany, Sweden, the UK, Spain, Portugal or Switzerland (principally concerning the interactions of these legal systems up to 1995 with the international legal provisions then in force), confirmed that there was little or no independent domestic or international relevance for authentic instruments in this context in the run-up to the Brussels II Convention. Even today, it is exceptional for those Member States that allow divorce by mutual consent to dispense with the direct supervision of the courts while ­requiring the parties to procure a divorce by consent from a notary or other public officer. The notary or other officer may be an option, but often his involvement is indeed optional and then only to record the agreement to divorce in such a formal manner as to render it domestically enforceable: the divorce is not usually granted/issued by the notary. Estonia, Latvia, Romania and Slovenia are exceptional in this sense as §64¹ of the Estonian Family Law Act confers this power on the notary and Latvian, Romanian and Slovenian law also reportedly allow the notarial issue of a divorce.47 If it is somewhat exceptional to allow a notary to issue/grant a divorce, it is more common for the notary have a formal recording function by which a divorce by mutual consent can be rendered domestically enforceable in the Member State of origin; that this conferral of enforceability is usually optional and mostly occurs after the parties have drawn-up their own divorce agreement each tend to argue against regarding the notarial intervention as involving the generation of a domestic notarial authentic instrument. Matters are necessarily somewhat different if the legal system requires/allows the notary to grant/issue the divorce as then his intervention will normally be via a notarial authentic instrument.48 The post-2003 trend to encourage divorce by mutual consent in some Member States is clear. The recent French reforms on consensual divorce remove the former need for court approval in certain defined situations. The spouses are each directed to consult separately an independent lawyer to jointly formulate their private

47 Note 7979/1/17 Rev 1 of 5 April 2017, at 8, 17, 21 and for details of the then forthcoming Slovenian reform proposals allowing divorce from the point of signature by the parties of a notarial record (still however to require confirmatory registration in the official Slovenian register) at 23. NB the UK part of this document wrongly records that there are no authentic instruments in any UK legal system – the Scottish authentic instrument referred to at various places in this book and by the Schlosser and Borrás reports is not, as the UK response appears to suggest, just a form of ‘consent order’. 48 ibid.

340  The Brussels IIa Regulation divorce agreement, they are not directed to consult a notary (and are not intended to do so) as in this context French law envisages no role for the notary in drawingup an authentic instrument to effect the divorce; he only is to be involved after the agreement is reached to check that the parties have each complied with the requirements of such a divorce and to record the agreement as a notarial minute that though enforceable in France is deliberately not designed to be an authentic instrument. These reforms were effected with the seeming intention of reducing the ­pressure on the French courts.49 The new French process leads to a private contractual divorce – not a judgment, not a court approved settlement and not (despite the involvement of the notary) an authentic instrument. The French legislator expressly sought to prevent the reformed law obliging or permitting the generation of a notarial authentic instrument. Thus the notarial intervention contemplated in the French legislation does not involve the notary in meeting or advising the parties nor conferring ‘authenticity’ on the content of the document nor on its signatures but according to Article 229(2) Code Civil he merely carries out formal checks to ensure that the requirements on the parties imposed by Article 229(3) Code Civil have been complied with, eg hiring lawyers, signing, observing the cooling off period, prior to entering the agreement as a notarial minute.50 Though other notarial authentic instruments could arise if there is an independent need for this in French law, ie to deal with the matrimonial property, they do not encompass the divorce by consent and are independent of it. Concerning parental responsibility, similar comments concerning the relevance of authentic instruments in the 1990s can be made as authentic instruments tend to be of peripheral relevance to parental responsibility itself. Parental responsibility arises because a person is regarded as a parent of a child by a given legal system and comes with the attendant rights and obligations provided and imposed upon parenthood by that legal system and its international undertakings. Though the potential for judgments establishing parenthood etc to be relevant to parental responsibility is implicit in the previous sentence, the authentic instrument is, at best, one step further removed from this and tends to apply to consensual agreements relating to parental responsibility. Authentic instruments were, thus, by and large irrelevant to the initial cross-border problems motivating the Brussels II 49 See new Code Civil Art 229 applying after 1 January 2017 according to Art 114 of LOI n° 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle. For an overview of the reforms including how the children are protected see Note 7979/1/17 Rev 1 of 5 April 2017, 13–14. For strong criticism of the many seemingly unintended and unanticipated problems posed by the French reform and for the international recognition of such contractual French divorces, see M Niboyet, I Rein Lescastereyres and L Dimitrov, The ‘De-internationalisation’ of the New Divorce by Mutual Consent? www.iafl.com/media/1107/the_new_french_extra_judicial_divorce.pdf and for detail of a complaint to the European Commission see http://conflictoflaws.net/2017/complaint-against-france-for-aviolation-of-several-obligations-arising-from-the-rome-iii-and-brussels-iibis-regulations/. 50 Niboyet et al (n 49) suggest that the resulting notarial minute may be incapable of benefitting from the applicable law otherwise provided by the Rome III Regulation due to the comments of the CJEU in Case C-372/16 Soha Sahyouni v Raja Mamisch ECLI:EU:C:2017:988 paras 39–48.

The Limited but Developing Role of Authentic Instruments  341 Convention which concerned recognition/enforcement difficulties associated with what were conceptualised as ‘divorce’ judgments and their asymmetric interactions with the exorbitant jurisdictions that some Member States claimed over divorce proceedings involving their nationals. That authentic instruments apparently had no great significance in the creation of the Brussels II Convention is clear from the Borrás Report which records that there was discussion between the Member States as to whether they should be deleted from the Convention or whether the Brussels II Convention should follow the structure of the Brussels Convention by including a special section concerning authentic instruments and court approved settlements.51 At this point, the delete option for authentic instruments in connection with ‘divorce’ issues appears to have accorded with most Member State views; why provide a role for authentic instruments concerning Brussels II issues that a widely-drawn concept of judgments, judicial orders and judicial decrees already encompassed? A further argument in favour of deletion was that direct replication of Arts.50 and 51 of the Brussels Convention would scarcely have provided the desired cross-border recognition effects or other desirable legal effects. Arts 50 and 51 provided only cross-border enforcement (not recognition) and did so via an enforcement procedure subject only to a public policy exception that acts as a precursor to whatever might then occur during the actual ‘enforcement’ of the divorce authentic instrument in the given venue via its own procedural laws. It is not entirely clear what saved authentic instruments from the delete option in the 1990s. There is no evidence that the technical point that many documents issued by a court to finalise the divorce are both ‘judgments’ and authentic instruments carried any weight. Professor Borrás only records in her explanatory report that deletion would have posed problems for the narrow class of parental responsibility orders that fell within the proposed scope of the Convention. It was in this context that the Scottish response to national questionnaires had revealed that the Scottish legal system made extensive use of authentic instruments postdivorce in the context of certain enforceable parental responsibility agreements.52 These Scottish authentic instruments were those that arose from registration in the Books of Council and Session of the Scottish Courts (a possibility noticed earlier in relation to civil and commercial obligations by Professor Schlosser in his report on the accession of the UK to the Brussels Convention).53 Though the cross-border effectiveness of such Scottish authentic instruments outside the UK54 is not discussed in the Borrás Report, it is clear that deletion would not enhance

51 Borrás Report (n 17) para 61. 52 ibid, referring also to other agreements outside the scope of the Convention including matrimonial property etc. 53 See discussion in ch 4 above. 54 Within the rest of the UK it is possible to reinforce the authentic instrument with the liabilities for non-compliance with the judgment that it is treated as by the intra UK legislation. This possibility is less obvious in non-UK legal systems.

342  The Brussels IIa Regulation whatever cross-border effectiveness such a registration could confer outside the UK. Had the mooted deletion occurred, those with such Scottish authentic instruments could not have sought recognition or enforcement of such parental responsibility orders via the Brussels II Convention but would be subject (­without the possibility of arguing irreconcilability under the Convention) to parental responsibility orders from within the rest of the Brussels II Convention. A further obstacle connected with parental responsibility to simple deletion of non-judgment titles in the 1990s was provided by the responses of the Swedish and Finnish States indicating that while each encouraged divorcing parents to settle domestic parental responsibility agreements ‘out-of-court’ whenever possible, they also required that such settlements must receive the approval of their respective domestic administrative authorities possessing local jurisdiction over the child to confirm that the agreement on parental responsibility was in accordance with the best interests of that child. Once such approval was conferred, the agreement became a domestically enforceable agreement. Such an agreement was not a judgment or an authentic instrument; it was an officially approved settlement. In Finland the local Social Welfare Board granted such approvals and thereafter the agreement on parental responsibility would be treated as if it was a judgment.55 In Sweden a similar process was also being encouraged by domestic reforms introduced in 1998 that shifted the conclusion of matters of parental responsibility (when parental agreement was possible) from the courts to a non-contentious process involving a written jointly signed agreement reached by the parents56 that became domestically enforceable once it received the approval of the social welfare board in the municipality where the child was registered.57 As in the abovementioned case of Scottish authentic instruments, if simple deletion had occurred with no equivalent of Article 51 of the Brussels Convention introduced for such settlements, the Finnish and Swedish agreements (and agreements in other Member States tending in a similar non-contentious direction) would not fall within the new Brussels II Convention and would be vulnerable to other such orders that did fit within the new Convention’s recognition and enforcement role.58 The Borrás Report explains59 that as both the Scottish authentic instruments and Swedish/Finnish settlement agreements each indicated that simple deletion

55 See M Helin, ‘Finland’ in K Boele-Woelki and C González-Beilfuss (eds), Brussels II Bis 1st edn (Antwerp, Intersentia, 2007) 91 at 96. 56 See M Jänterä-Jareborg, ‘Marriage Dissolution in an Integrated Europe: The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II Convention)’ in P Šarcevic and P Volken (eds), Yearbook of Private International Law I -1999 (The Hague, Kluwer Law International, 2000) 1 at 25, fn 65. 57 See answer to q 5, http://ec.europa.eu/civiljustice/parental_resp/parental_resp_swe_en.htm. 58 As neither the Swedish nor the Finnish legal systems then featured authentic instruments as domestic legal institutions such agreements originating from Sweden or Finland could only be given cross-border effect via Art 51. 59 Borrás Report (n 17) para 61.

The Limited but Developing Role of Authentic Instruments  343 was inadvisable, and further that the simple duplication of Articles 50 and 51 of the Brussels Convention would be less than optimal, the decision was taken to avoid each difficulty by including these atypical examples within the definition of the judgments that would benefit from recognition and enforcement under the Convention. The Borrás Report does not link this decision with the potential for the concluded (but then not in force) Hague Convention on Parental Responsibility to include such matters, it seems probable however that a desire to avoid the exacerbation of gaps between the recognition possibilities offered by the Hague Convention and Brussels II Convention may have been an additional factor in resisting both deletion and inappropriate emulation by equating domestically enforceable authentic instruments and settlement agreements with the Brussels II Convention concept of a judgment via Article 13(3). Howsoever this may have been, the abovementioned trend since 1999 to encourage non-judicial spousal agreements concerning divorce, to reduce the burden on Member State judicial systems, also applies in a limited sense to certain aspects of parental responsibility such that private agreements on permitted issues, whether achieved privately or via mediation60 or conciliation, are increasingly encouraged by most Member States. It is not the case that parents may so agree all matters of parental responsibility (eg an outright surrender of parental responsibility would not be permitted via a private agreement capable of enforcement) but to the extent that agreement is possible and practical it tends to be encouraged. As in the context of divorce by mutual consent, certain of such agreements may be given different forms of domestic enforceability in different Member States by the involvement of courts (specialist or otherwise), by the involvement of organisations such as the Finnish Social Welfare Board/Swedish Social Welfare Committee, or by the involvement of a notary.61 The main difference between the divorce and the parental responsibility issues is that in the context of the latter there is no possibility for whichever body is involved with conferring domestic enforceability upon the agreement of avoiding the need to ensure that the agreement properly respects the interests of the child: this overriding need to protect the interests of the child referred to in the parental responsibility agreement tends to argue in favour of judicial or quasi-judicial child specialist approval rather than a classical notarial intervention.62

60 By Art 6(2) of the Mediation Directive the agreement may be made enforceable by inclusion in an authentic instrument, Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L 136, p 3. 61 See Note 7979/1/17 Rev 1 of 5 April 2017. 62 ibid regarding Belgium, France, Germany, Spain, Greece, Croatia, Italy, Cyprus, Latvia, Lithuania, Malta, Netherlands, Austria, Portugal, Slovakia and UK. Slovenia has a role for the notary in assisting in the drafting of the agreement prior to it being approved by a court and plans to extend this. Only the Romanian response indicating a planned role for the notary acting alone in parental responsibility matters, at 21.

344  The Brussels IIa Regulation

A.  The Legislation Article 13(3) of the Brussels II Convention represents the first legislative inclusion of authentic instruments concerning divorce and/or parental responsibility in European private international law. Article 13 Meaning of judgment 1.

2. 3.

For the purposes of this Convention, ‘judgment’ means a divorce, legal separation or marriage annulment pronounced by a court of a Member State, as well as a judgment relating to the parental responsibility of the spouses given on the occasion of such matrimonial proceedings, whatever the judgment may be called, including a decree, order or decision. (provision including costs orders omitted) For the purposes of implementing this Convention, documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also settlements which have been approved by a court in the course of proceedings and are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as the judgments referred to in paragraph 1.

Article 13(3) of the Convention thus allows both domestically enforceable authentic instruments and domestically enforceable approved settlements to benefit from the same cross-border recognition and (if relevant) enforcement effects on the same terms as these possibilities are provided to judgments. This solution to the problem of how to allow the cross-border recognition of authentic instruments pertaining to parental responsibility has a certain expeditious charm, as however it can be read (wrongly) to appropriate the existing orthodox concept of recognition in private international law to a quite different use for the purposes of an EU private international law Regulation it is not without difficulties. This ‘quick-fix’ is one of the factors which has inspired some over the course of the next decade or so to suggest routinely that ‘recognition’ extensions for authentic instruments should be included in all EU private international law Regulations pertaining to cross-border recognition and enforceability. The Borrás Report had however made it plain from the very start of these developments that the decision to additionally allow automatic recognition to include the narrow category of Brussels II authentic instruments was dictated by particular circumstances resulting from the wish to keep Scottish authentic instruments and Finnish/Swedish settlement agreements within the scope of the Brussels II Convention and by the associated desire that each should be able to engage, and be engaged with, fully by courts and authorities in the Member State of enforcement.63 Professor Borrás was explicit that the Brussels II Convention did 63 ibid, para 61 last sentence recording that recognition and enforcement subject only to a public policy exception was not sufficient.

The Limited but Developing Role of Authentic Instruments  345 not seek to replicate the more orthodox recognition effects found in the Brussels Convention.64 The limited, and again particular, meaning of Brussels II recognition – not just for authentic instruments and settlements but for judgments too – is explained by paragraph 64 of the Borrás report which concerns the recognition provided by Article 14, As specified in Article 1 in relation to the scope of the Convention in terms of matters covered, … the recognition referred to in this Article does not affect questions of the fault of spouses, marriage contract, maintenance or any other consequences of an economic or any other nature included in the same judgment. It is a question, therefore, only of recognition of the dissolution of the link of marriage or of the legal separation (see paragraph 22).65

In the circumstance that an authentic instrument falls within the scope of the Convention, it is thus to be automatically recognised with only such a cross-border effect. Such recognition can be opposed via whichever of the grounds for nonrecognition listed in Article 15(1–2) and is mediated by as much of Articles 17 and 18 as can, on the facts associated with its conclusion, be applied to the authentic instrument in question. What the Brussels II Convention and Regulation each describe as the recognition of an authentic instrument is thus closer to an administrative arrangement that rebuttably presumes that the incoming judgment, authentic instrument or settlement will, for the specific family law issues the Convention covers, be accepted by the other Member States party to the Brussels II provisions. This quasi-legalisation is not only quite different to what either orthodox private international law or the Brussels Convention would regard as recognition in the contexts in which either would recognise a foreign judgment; it was designedly made different in the Brussels II Convention and has been carried over in this form to the Regulations which replaced the Brussels II Convention. Though it may be going too far to suggest that this form of recognition for authentic instruments removes them from the traditional ambit of private international law, it is certainly true that these recognition provisions belong to a European rather than a national orthodoxy.66 The process by which the Brussels II Convention was replaced with the Brussels II Regulation 1347/2000 did not change materially any of the matters discussed above and nor are any proposals to make such any changes apparent from the available preparatory documents. The only textual difference in Article 13 of the Regulation was the necessary substitution of ‘Regulation’ for previous references to ‘Convention’. Recital 15 was also provided, seemingly to clarify in its second sentence that to qualify as a Brussels II Regulation authentic instrument the

64 ibid para 62, second sentence and para 63 second sentence. 65 Borrás Report (n 17) para 64, my italics. 66 The suggestion of removal is found in the comment on the Brussels II Regulation by B Ancel and H Muir Watt, ‘La Désunion Européene: le Règlement dit ’ (2001) 90(3) Revue critique de droit international privé 403 at 440.

346  The Brussels IIa Regulation authentic instrument must be enforceable where it was drawn-up (ie in a Member State legal system).67 Apart from this, Article 13(3) of Chapter III of the 2000 Regulation was as textually stable throughout the conversion process as one would expect of a provision of limited relevance for most Member States. Indeed, even the European Commission saw no reason to assist the cross-border use of authentic instruments (or settlements) by providing standard forms concerning either cross-border divorce or parental responsibility applications made via authentic instruments or settlements under either the 2000 or the 2003 Regulation.68 It is only with Regulation 2019/1111 that a Brussels II Regulation will provide standard forms dedicated to authentic instruments and settlements and obviate the current need to strikethrough and amend the standard forms for judgments by hand to suit and accompany a non-judgment title that is to be presented in a different Member State.

III.  The Brussels IIa Regulation The move to Regulation 2201/2003, hereafter ‘Brussels IIa’, was motivated by obvious deficiencies in the narrowness of the scope of what had been achieved via the Brussels II Convention and Regulation, particularly concerning matters of parental responsibility. In July 2000, some eight months before the Brussels II Regulation (concluded at the end of May 2000) was in force, the French proposed an extension of the new Regulation to cover orders concerning rights of access to children and to abolish exequatur for these rights.69 This French initiative ran alongside similar plans of improvement for the Brussels II Regulation, mooted by the Commission in March 2000, which the Justice and Home Affairs Council considered in November 2000. In March 2001 a Commission Working Document was issued70 and by September 2001 the Commission proposed a new separate Regulation on parental responsibility71 that would have coexisted with the Brussels II

67 Recital 15. The word ‘judgment’ refers only to decisions that lead to divorce, legal separation or marriage annulment. Those documents that have been formally drawn up or registered as authentic instruments and are enforceable in one Member State are treated as equivalent to such ‘judgments’. 68 The absence of such standard forms is the more surprising because the Brussels IIa Regulation was drafted contemporaneously with the EEO Regulation – which is amply provided with such standard form annexes – there was no suggestion of an Annex for authentic instruments at this point in time. 69 Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children (2000) OJ C 234/08. 70 Mutual Recognition of Decisions on Parental Responsibility (27.03.2001) COM 2001 166 final the need to include the authentic instruments and settlements from Art 13(3) of the Brussels II Regulation in this context too is mentioned on 12. 71 Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility COM (2001) 505 final (2001) OJ C 332 E/11, 269. This unused proposal only mentions authentic instruments in Art 21(1) to include them within its

The Brussels IIa Regulation  347 Regulation but taken priority over it concerning issues of parental responsibility. Shortly thereafter, the Council proposed a Decision to allow the Member States to sign the 1996 Hague Convention. Problems with the Decision text and potential complications arising from the anticipated interaction of the 1996 Hague Convention with the ongoing internal European reforms of parental responsibility caused numerous difficulties and delayed the proposed Decision.72 During this time it was decided to abandon the plan to add a new Regulation to the Brussels II Regulation: one Regulation was preferable to two. This step forward was however off-set to an extent by complications arising from attempting to integrate the expanded Brussels II Regulation competence (and the proposals relating thereunto) with the provisions of the existing 1980 Hague Convention73 on child abduction, etc, further issues concerning the long-mooted Decision regarding the 1996 Hague Convention, and the surprising notion (eventually abandoned) that maintenance issues from the Brussels I Regulation might also be added into the replacement Brussels II Regulation. From these tangled interactions the Brussels IIa Regulation was eventually assembled. The ‘divorce’ parts came from the Brussels II Regulation, the parental responsibility parts were drawn from the same Regulation plus the withdrawn/re-submitted 2001 parental responsibility proposals from the Commission, as amended during the legislative process: legislative deçepage indeed. According to the available preliminary documents, the provisions on authentic instruments were unaffected by these developments and continued to follow the earlier Brussels II Regulation provisions as found in Article 13(3). With one caveat the same is true of settlements; the text concerning settlements was changed over the summer of 2003 from ‘settlements which have been approved by a court in the course of proceedings and are enforceable …’ to ‘agreements between the parties that are enforceable …’. This change is first visible in the available documentation on 22 September 2003.74 No reason for this change is discernible from the available documentation, which demonstrates no wish by any Member State to make any substantial change to the recognition and enforcement possibilities concerning authentic instruments or settlement agreements. The change occurred between transitional provisions. It does however refer back to the Chapter III provisions of the Brussels II Regulation as concerns enforceable ‘judgments’ and this presumably is how an enforceable authentic instrument or settlement would be included. 72 For the final Decision see, Council Decision of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children – Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children. 73 Though not germane for present purposes, further complications arose concerning the potential interactions of the proposed Regulation and the 1980 Hague Convention concerning wrongful child abduction/detention and its effect on issues such as custody. This time the problem was one rooted in existing obligations of each Member State under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, on which generally see P Beaumont and P McEleavy, The Hague Convention on International Child Abduction 1st edn (Oxford, Oxford University Press, 1999). 74 Note from Presidency to Coreper 22 September 2003, 12675/03 (draft Art 49a) at 34.

348  The Brussels IIa Regulation drafts of the Presidency text published on 23 May 2003 and the abovementioned September 22 draft text. The records do however show that what was then draft Article 49(a) was among the provisions to be discussed regarding ‘updating’ at the meeting of the Committee on Civil Law Matters of 18 July 2003: it is presumably at this meeting that the change on settlements was agreed.75 If the change is considered in the context of the Finnish and Swedish arrangements that motivated the original inclusion of settlement agreements in the Brussels II Convention, it seems to be an improvement as it led to amendments across the different language version of the Brussels IIa Regulation that indicated that the focus of the crossborder potential for settlements should be on the agreement between the parties that was rendered domestically enforceable in the Member State of origin rather than the previously assumed fact that the parties must have reached the agreement in conclusion of court proceedings with the approval of a court.76 The text concerning authentic instruments was unaffected by these changes. The reason for the change of location from Article 13(3) of the Brussels II Regulation to Article 46 of the Brussels IIa Regulation was mundane; in a document dated 21 March 2003 the German Delegation suggested that the provisions that had been Article 13(2) on costs and Article 13(3) on authentic instruments etc could each, for the sake of clarity, be better detached from what had been Article 13(1) and then relocated into a ‘common provisions’ section concerning recognition and enforcement.77 This suggestion was adopted78 and but for the abovementioned late adjustment concerning settlements, the text concerning authentic instruments remained stable from this point onwards and formed Article 46 of Section 5 of the Regulation entitled ‘Authentic instruments and agreements’.79

A.  Authentic Instruments in the Brussels IIa Regulation As will be appreciated from the foregoing, there is a high level of continuity across the Brussels II instruments concerning authentic instruments. In the absence of contrary interpretative guidance from reported case law, this continuity necessitates continued reference to the aims and purposes of the Convention of 1998 and the Regulation of 2000 by which the present Brussels II possibilities have been established. Such possibilities are however conditional on the extent to which the domestic legal systems direct or permit the use of authentic instruments to 75 See document T_3120_ 2003_INIT_EN available from Consilium Europe. 76 A comparison of the Brussels II Regulation Art 13(3) and Brussels IIa Regulation Art 46 provisions concerning settlements across English, French, German, Swedish and Finnish texts even via ‘Google Translate’ for the last two is illuminating. 77 Note from German Delegation, 21 March 2003, 7730/03 at 3. 78 Included in draft Presidency text of 30 April 2003, 8281/03 at 25 as draft Art 49ter. 79 Final wording of this provision achieved by draft text of 22 September 2003 12675/03 at 34; final numbering by 20 Oct 2003 12513/03 at 45.

The Brussels IIa Regulation  349 achieve legal effects that fall within the realm of the matters of divorce and parental responsibility within the material scope of the relevant Brussels II provision. In the discussion that follows it is useful to keep in mind that the seeming marginal importance of authentic instruments in this context reflects the general absence of a common dedicated domestic role for this legal institution across most EU legal systems in these specific contexts. As noted above and discussed further below in the context of Regulation 2019/1111, since 2003 there have been developments within certain legal systems indicating a trend towards non-judicial consensual divorce and parental responsibility agreements via authentic instruments and officially approved private agreements which the recast may give cross-border effects.

B.  The Text of Article 46 Brussels IIa Regulation The Brussels IIa Regulation locates its provision addressing authentic instruments away from judgments in Article 46 (and Recital 22). The Recital simply informs that ‘Authentic instruments and agreements between parties that are enforceable in one Member State should be treated as equivalent to “judgments” for the purpose of the application of the rules on recognition and enforcement’. Article 46 states, Documents which have been formally drawn up or registered as authentic instruments and are enforceable in one Member State and also agreements between the parties that are enforceable in the Member State in which they were concluded shall be recognised and declared enforceable under the same conditions as judgments.

Read together, Recital 22 and Article 46 indicate that a qualifying authentic instrument, ie one drawn up or registered in a participating EU Member State80 that has accordingly conferred the required quality of domestic ‘enforceability’81 upon it, must then be recognised and declared enforceable in the other participating Member States by an equivalent application of what, prima facie, are all the Regulation’s rules on the recognition and enforcement of judgments.

C. Definition Though the Brussels IIa Regulation does feature a definition section, in common with its forerunners it does not provide any definition for ‘authentic instrument’. In one sense this is surprising given that at the time that the Brussels IIa Regulation was being drafted the Unibank decision by the ECJ82 was already two years old and further because the Regulation was drafted contemporaneously with the EEO

80 Not in Denmark, which has never participated in the Brussels II instruments, see Recital 31 of BrIIa. 81 The meaning of ‘enforceable’ is explored below. 82 Case C-260/97 Unibank A/S v Flemming G. Christensen ECLI:EU:C:1999:312.

350  The Brussels IIa Regulation Regulation (which did feature a definition of authentic instrument in its Article 4(3) based on Unibank principles). The two Regulations shared certain techniques and provisions, eg both use certificates issued in the Member State of origin, Article 11 EEO Regulation and Article 44 of Brussels IIa were developed side by side to ease the concerns of Member States that the certificates should not assume a significance independent of the present condition of the judgment (or other enforceable title) that they described at the point of completion if later developments rendered the certificate ‘out-of-date’ relative to the enforcement title. The lack of a definition is however probably attributable to the then minor importance of authentic instruments in this context and the prioritisation of the more pressing and formidable difficulties posed to the drafters concerning the expansion of EU concepts of parental responsibility and attempting to accommodate the requirements of two Hague Conventions. In the absence of a definition, the question of how such an authentic instrument should be defined is, in one sense, open to speculation: all academic commentators however unite on the conclusion that the unexpressed definition should, mutatis mutandis, essentially follow the autonomous Unibank criteria as expressed in the subsequent Regulations that have since 2004 sought to define authentic instruments for the purposes of EU private international law. This common and, in the absence of more specific case law, reasonable conclusion is reinforced by the first express definition of an authentic instrument in a Brussels II instrument provided by Article 2(2)(2) of Regulation 2019/1111, which, unsurprisingly, follows the academic line by using an amended Unibank-derived definition. Article 2(2)(2)(not yet in force) ‘authentic instrument’ means a document which has been formally drawn up or ­registered as an authentic instrument in any Member State in the matters falling within the scope of this Regulation and the authenticity of which: (a) relates to the signature and the content of the instrument; and (b) has been established by a public authority or other authority empowered for that purpose …83

It is suggested that despite not yet being in force, this definition encapsulates the essential qualities of a Brussels II authentic instrument as effectively for the Brussels IIa Regulation as for the recast Regulation. One point of technical difference between the current and the new might concern the requirement that under the recast Regulation authenticity must also be conferred on the signature. This should not be read to suggest that there must be such a signature if the document is to be regarded as an authentic instrument under the new Regulation, which would remove those authentic instruments that lack a signature because they are rendered effective not by being ‘drawn-up’ but instead by registration. Given the

83 Regulation 2019/1111 Art 2(2)(2), Member States’ duty to communicate identity of such a­ uthorities omitted.

The Brussels IIa Regulation  351 presence of authentic instruments by registration in the definition text quoted above and the lack of any indication of a wish by the drafters to remove them from the recast Regulation, it suggested that only authentic instruments requiring signature that have not had authenticity conferred on that signature should be understood as excluded from the recast Regulation on this basis. If anything should turn on the point, it can be argued that the Brussels IIa Regulation (and earlier provisions) should be understood not to impose any such requirement for authentication of signature(s). This requirement was not part of the Unibank decision and represents a later (albeit sensible) gloss that certain Regulations from 2004 onwards did adopt but, as is demonstrated unequivocally by the text(s) and its drafting history, the Brussels IIa Regulation chose not to incorporate and thus remained consistent on this point with its forerunners and the jurisprudence of the CJEU.

D. Scope The subject matter scope of the Brussels II authentic instrument is determined by Article 1(1–3) and by Recitals 7–11 inclusively. The geographic scope of the Brussels II authentic instrument is one that is confined to the legal systems of the Member States that participate in the relevant instrument. Neither extra EU authentic instruments/settlements nor those from non-participant EU Member States can qualify. Thus, even if there were such a thing as a Brussels II relevant Danish authentic instrument, it could not be recognised or enforced via the Brussels II regime because Denmark has always remained outside the Brussels II regime. The temporal scope of the Brussels II Regulations to authentic instruments and settlements is probably (the matter not yet having been considered by the CJEU) somewhat simpler than the corresponding provisions on judgments. Each Brussels II legislative instrument provides a date from which an authentic instrument may be drawn-up or registered to come within its initial temporal scope.84 For the Brussels II Regulation the date was 1 March 2001,85 for the Brussels IIa Regulation the date was 1 March 200586 and for the Brussels IIa recast Regulation the date will be 1 August 2022.87 It would seem to follow that a Brussels II authentic instrument drawn-up on 2 March 2001 must even now be subject to the Brussels II Regulation and not the Brussels IIa Regulation, this impression cannot however be correct as Article 71(1) of the Brussels IIa Regulation repealed the

84 It is the drawing-up/registration date that is determinative, not any later date of enforceability; U Mankowski in U Magnus and P Mankowski, Brussels IIbis Regulation (Cologne, Verlag Dr Otto Schmidt, 2017) Art 64 para 7, 475. 85 Regulation 1347/2000 Arts 42(1) and 46. 86 Regulation 2201/2003 Arts 65(1) and 72. 87 Regulation 2019/1111 Arts 100(1) and 105.

352  The Brussels IIa Regulation Brussels II Regulation with effect from 1 March 2005 (the date of its own application). Thus, unless there is a way provided by the Brussels IIa Regulation to save the hypothetical authentic instrument, it is incapable of cross-border recognition or enforcement via that Regulation. Though Article 71(1) repealed the earlier Regulation, there is no indication that it was intended thereby that Brussels II Regulation authentic instruments etc were to be deprived of cross-border legal effects: the question therefore becomes, how can such effects be preserved? Mankowski, agreeing with Rauscher, suggests an analogous application of Article 64(3)88 which, though it ostensibly concerns judgments, is not subject to conditions that immediately prevent its application to a non-judgment title (as is the case with Article 64(2 and 4)) and is concerned, as noted by Rauscher, with an enforceable title that was already legally effective before the Brussels IIa Regulation came into effect. It is probable that in seeking to follow the existing interpretation of the temporal scope of the Brussels IIa Regulation in the context of judgments89 the Article 64 route via Article 64(3) applied by analogy would be adopted if the matter ever came to the CJEU. An alternative means by which to close the loophole would be to interpret Article 71(2) of the Brussels IIa Regulation, which directs imperatively that ­references to the repealed Regulation are to be construed as a reference to the Brussels IIa Regulation (in accordance with the equivalence table in Annex V), as having a wider effect than would normally be understood of such a ­provision in the context of the Brussels I Regulation because of the very absence of Brussels IIa provisions that would otherwise prevent the current gap by filling it: thus an Article 13(3) Brussels II Regulation authentic instrument or settlement presented in the Member State of enforcement could, because there is no provision in Article 64 that deals with this transitional matter, be referred via the Brussels IIa Regulation’s Annex V equivalence table to Article 46 (and or Articles 2 or 49) of the Brussels IIa Regulation and then be recognised and or enforced under the newer Regulation. Either suggestion is speculative, and each is likely to remain so. The transitional provisions of the 2019 recast Regulation are simpler: eschewing wholesale repeal and leaving the Brussels IIa Regulation applicable to qualifying authentic instruments etc that were enforceable in the Member State in which they were concluded before the recast becomes fully operative on 1 August 2022.90

E.  The Quality of Domestic Enforceability Up to and including the Brussels IIa Regulation it has been a requirement that the authentic instrument must be ‘enforceable’, ie it must possess a quality of 88 Mankowski (n 84) para 8, 476; citing similar reasoning and conclusion by Rauscher in T Rauscher, Europäisches Zivilprozess- und Kollisionrecht Kommentar, Volume 4, 4th edn (Cologne, Verlag Dr Otto Schmidt, 2015) for Art 64 at para 19, 400. 89 Case C-435/06, C, ECLI:EU:C:2007:714 (Grand Chamber). 90 ibid Art 100(2).

The Brussels IIa Regulation  353 enforceability in the Member State of origin.91 In the context of authentic instruments the precise meaning of this requirement of enforceability is however somewhat unclear. The lack of clarity concerns two issues: first, the meaning of ‘enforceable’ and whether or not it must be immediately intrinsic in the authentic instrument; and, second, the resulting implications for an authentic instrument that has content capable of what the Brussels IIa Regulation regards as recognition but lacks content capable of domestic enforcement (considered in a traditional sense). These two issues have led to academic debates and are often argued (in the present author’s opinion wrongly) to prevent the use of the Brussels IIa Regulation for isolated recognition applications concerning authentic instruments or settlements: despite the automatic nature of recognition under the Brussels IIa Regulation. The following analysis is required to rebut the two arguments and their narrowing of the scope of operation of the Brussels IIa Regulation which remains directly relevant until 1 August 2022 (when the recast Regulation becomes fully operative) and thereafter will continue to govern applications to recognise or enforce Brussels IIa Regulation authentic instruments etc drawn-up or registered prior to 1 August 2022.

i.  What is Meant by Enforceable in Article 46 of the Brussels IIa Regulation? Though ‘enforceable’ in the context of Article 46 of the Brussels IIa Regulation must refer to enforceability in the Member State of origin, to avoid the nonsense of an authentic instrument unenforceable where it was drawn-up or registered later acquiring foreign enforceability merely by the fact of its export to another legal system, the meaning of enforceable in that context, in the absence of clarification by legislation or by case law, should not be too wedded to familiar domestic concepts concerning requirements for enforceability. It is suggested that the question should be ‘is the authentic instrument/settlement “enforceable” in the legal system of the Member State of origin in the sense that it currently produces either domestic recognition or enforcement effects there?’ It is the capacity of the authentic instrument to produce such effects which the Regulation can then equip with cross-border efficacy that should be the subject of the enquiry into whether it is enforceable. If it is so enforceable there is no objection in principle to this enforceability being given cross-border efficacy by the Brussels IIa Regulation. If it is not

91 Though the drafting could be clearer on this point, it can scarcely be doubted that the quality of enforceability required of the authentic instrument is judged against the requirements of the relevant legal system of the Member State of origin. With the assumed exception/fiction conceded for consular authentic instruments, it is not possible to create an authentic instrument for State ‘A’ in the territory of State ‘B’ as the required intervention of public officialdom in State ‘B’ cannot occur in the territory of State ‘A’.

354  The Brussels IIa Regulation so enforceable, there is every objection to conferring (or continuing) ex post facto enforceability. Such an approach to the ‘enforceable’ requirement circumvents the d ­ ifficulties posed by the suggestion that a quality of enforceability must be immediately intrinsic to the given Brussels II authentic instrument and the conclusion that if it is notionally absent, ie because the authentic instrument can only be enforced after further intervention from the legal system of the Member State of origin, it cannot then (which seems reasonable) or after having received such intervention (which seems unreasonable) demonstrate sufficient enforceability as an authentic instrument to allow it to circulate as such via the Brussels IIa Regulation.92 With respect, to apply this argument across all Member States assumes too great a level of domestic equivalence between the different legal systems concerning authentic instruments and misses the systemic point of the requirement to establish that the authentic instrument is enforceable in a domestic sense. As discussed above in the context of the Brussels I and recast Brussels I Regulations, it is not the case that in every Member State legal system it is possible to proceed directly to enforce even a notarial authentic instrument recording a simple and due enforceable debt obligation between ‘A’ and ‘B’, without first securing a confirmation of enforceability (from a court) to allow enforcement to proceed. It was argued in chapter four in connection with the Brussels Ia Regulation and its forerunners that to therefore exclude the authentic instruments of the Members States in question from the cross-border possibilities of EU private international law was disproportionate and unwarranted: for similar reasons and for those now advanced, the same argument is suggested to apply in the present context. Support for this reasoning may be drawn from an examination of the meaning of ‘enforceable’. It may first be observed that in the context of private international law enforceable in domestic law refers to a quality that is most commonly a putative one, there is no prior need for the domestic authentic instrument to have been presented for domestic enforcement before it can circulate under the Brussels IIa Regulation; it must merely be potentially enforceable in its Member State of origin. It is suggested that a wide interpretation of such enforcement potential and the ways in which it may be made manifest in the Member State of origin is appropriate to reflect the width of the civil and administrative matters that fall within the ambit of the Brussels IIa Regulation in this context. In relation to the suggestion that an authentic instrument should be intrinsically enforceable it is countered that in an important sense, no authentic instrument is ever intrinsically enforceable per se, ie without any further intervention by the state of origin. An authentic instrument does not empower its creditor with the independent ability to make direct withdrawals from the debtor’s bank account without further state assistance in even the Member State of origin. The domestic enforcement of an authentic instrument always involves procedural 92 This point is also encountered in connection with ‘enforceable settlements’, see discussion by Magnus in Magnus and Mankowski (n 84) at 416, para 11.

The Brussels IIa Regulation  355 i­nterventions assisting the creditor, and to some extent protecting the debtor, within the State of origin; it follows that actual enforcement is not necessarily inevitable or guaranteed despite putative enforceability. In this context ‘enforceable’ therefore describes a condition that far from being intrinsic as a property of the authentic instrument is one that is derived from the accumulation of domestic measures of assistance to confirm the quality of enforceable in a putative sense at a certain point in time as against a certain person or asset: it is therefore suggested that there is ­nothing impermissible in regarding a domestic authentic instrument as potentially ‘enforceable’ for the purposes of the Brussels IIa Regulation merely because the Member State legal system from which it originates requires a further application to a domestic court or equivalent public office to perfect its domestic quality of enforceability. Provided that any ‘perfection’ required to allow recognition or enforcement has occurred, and that the perfected authentic instrument is now enforceable and remains an authentic instrument (not having been converted by the application into a judgment) it seems reasonable to conclude that it can thereafter benefit from the forms of cross-border recognition and enforcement provided by the Brussels IIa Regulation at least in as far as it has complied with the requirement that it is domestically enforceable in the sense that a domestic application by the creditor could now plausibly lead to recognition or enforcement effects concerning the authentic instrument in the Member State of origin and that this is confirmed upon the manually amended certificate by which the enforcement title will be accompanied to the Member State of enforcement.93

ii.  Can an Authentic Instrument with Content Capable of Domestic Recognition but not Domestic Enforcement Still be Regarded as Enforceable for the Purposes of Article 46? The provisions of Article 46 of the Brussels IIa Regulation (and earlier instruments) are unambiguous in expressly permitting both the recognition and the enforcement of enforceable authentic instruments on the same terms as judgments. It seems to follow that just as a judgment creditor may seek only the recognition of his judgment, an authentic instrument creditor may do likewise for the admittedly limited purposes of the Brussels IIa Regulation. The wording of Article 46 however appears to some distinguished German commentators94 to impose a 93 See the approval for this result of K Siehr, Art 22 in Magnus and Mankowski (n 84) para 3, 290–91. 94 See M Andrae in T Heidel, R Hüßtege, HP Mansel and U Noack, Nomos Kommentar BGB, Volume 1, 3rd edn (Baden-Baden, Nomos, 2016) Art 46, para 2, 2517; Rauscher (n 88) Art 46 para 6 and footnote 16 on 365 (citing R Geimer) in Zöller Zivilprozessordnung Kommentar (Cologne, Otto Schmidt Verlag, 2014) Art 46, para 4 and R Hüßtege in H Thomas and H Putzo, Zivilprozessordnung Kommentar (Munich, CH Beck, 2014) Art 46, para 4. In agreement but noting that others take a different view, K Paraschas in her contributions to the commentary on the Regulation in R Geimer and R Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen, Volume 2 (Munich, CH Beck, looseleaf) Art 46, para 10, and J Rieck, ‘Scheidungsfolgenvereinbarungen gem. § 630 ZPO und ihre Anerkennung und Vollstreckung nach der EheEuGVVO 2003’ (2007) Familie, Partnerschaft, Recht (FPR) 425 at 427; each take another view.

356  The Brussels IIa Regulation prior condition of domestic enforceability on authentic instruments and settlements that they have interpreted to mean that a Brussels IIa authentic instrument lacking domestic enforceability due to an absence of an enforceable content cannot benefit from cross-border recognition via Article 46. Thus, if an authentic instrument has no enforceable content this prevents an isolated recognition application. This interpretation of ‘enforceable’ is sometimes connected with a wish to avoid purely private ‘divorces’ (eg those by talaq or ghet) being allowed cross-border efficacy by the Brussels II instruments:95 it is however suggested that the matter is far better policed directly in the Member State of origin and, if necessary, by the application of the public policy exception in the Member State of enforcement. In the context of Brussels II authentic instruments and settlements concerning ‘divorce’ and parental responsibility it seems disproportionate to suggest that common and unobjectionable isolated recognition applications should, when such recognition is possible, be forbidden (to incidentally assist in the prevention of private divorces illicitly gaining cross-border efficacy) when they have no enforceable content in the Member State from which they originate. Again, the matter turns on the meaning to be ascribed to ‘enforceable’ in Article 46. It was argued above that ‘enforceable’ refers to the necessary existence of a putative domestic legal effect within the scope of the Regulation which can be extrapolated by Article 46 to produce identical (or near identical) legal effects pertaining to Regulation recognition and/or enforcement across Member State borders. It was hence suggested that in this context ‘enforceable’ referred only to the essential point that the authentic instrument or settlement had to have a given domestic legal effect before this legal effect could be extrapolated into a crossborder context via Article 46. As a matter of principle there seem to be no objections to such domestic recognition effects as exist in the Member State of origin being extrapolated by the Brussels IIa Regulation concerning either matters of divorce or parental responsibility if the creditor should only seek the cross-border recognition of the authentic instrument, etc: it may be somewhat counterintuitive for private international lawyers to so entangle recognition and enforcement possibilities within the term ‘enforceable’ but the Brussels IIa Regulation has already done exactly this in its Article 2(6) definition of the enduring Brussels II concept of the Member State of enforcement (from which nobody would conclude that only enforcement actions were permitted in that venue). Further, as has been observed by, inter alios, Magnus,96 Gottwald97 and Paraschas,98 the contexts in which

95 The desire to avoid this is still present in the recast Regulation at Recital 14 sentence 4. See ­discussion by Siehr (n 93), Art 22, para 3, 290. 96 Magnus (n 92) Art 46, para 11, 416 citing the agreement of P Gottwald in Münchener Kommentar ZPO 4th edn (now MüKo FamFG). 97 P Gottwald in T Rauscher (ed), MüKo FamFG, Volume 2, 3rd edn (Munich, CH Beck, 2019) Art 46 para 8 who cites Paraschas (n 94) with approval. 98 Paraschas (n 94) Art 46, para 11, 567.

The Brussels IIa Regulation  357 Brussels II authentic instruments and settlements arise make it utterly inappropriate to discount solitary recognition applications. Paraschas gives the example of disputed access rights (which are likely to be domestically enforceable) and the custody agreement itself (that is unlikely to be capable of domestic ‘enforcement’) and notes how unfortunate it would be if only the former were to be capable of recognition under Article 46.99 A further point is to consider how arbitrary it would seem to permit an isolated recognition application for which no enforcement application has been made (though theoretically one could have been made) while excluding an essentially identical recognition application for which no enforcement application was made (because in the Member State of origin no such theoretical enforcement application possibility needed to exist). Again the issue returns to the proper assessment of the word ‘enforceable’ in this context and difficulties arising from attempted interpretations that apply particular domestic legal categories and enforceability concepts to a term of European legal art that despite referring enforceable back to a domestic enquiry probably should be understood to be rather more abstract on this point and in this context when seeking to establish whether an ‘enforceable’ authentic instrument or settlement should be given cross-border efficacy. It has been suggested above that ‘enforceable’ refers to the existence of legal effects associated with the authentic instrument or settlement in the Member State of origin and to the extent that this includes putative legal domestic recognition and enforcement effects either may be extrapolated into cross-border applications for recognition or enforcement (or both) via Article 46. It is hence suggested that even if it includes no content capable of putative domestic enforcement in the Member State of origin, in the strict sense in which that Member State understands enforceability, an authentic instrument concerning a Brussels IIa matter of ‘divorce’ or parental responsibility is ‘enforceable’ under Article 46 if in the condition in which it is presented for recognition it continues to produce domestic recognition effects in the Member State of origin according to the unimpeached Brussels IIa annexed certificate by which it is accompanied.100

99 Gottwald, Art 46 (n 97) para 8 agrees. 100 These certificates up to and including the Brussels IIa Regulation are not designed for authentic instruments/settlements and hence as Magnus (n 92), Art 46, para 19, 419, Rauscher (n 88), Art 46, para 13, 366, Gottwald (n 97) Art 46, para 13, inter alios have all noted, they are of somewhat uncertain operation in this context and require manual amendment (ie in places Annex I assumes the Art 39 decision is a judgment issued by a court) by the issuing authority in the Member State of origin. For authentic instruments and settlements such amendment could extend beyond substituting the type of ‘enforcement title’ to also include ticking the ‘is it enforceable?’ box on Annex II(q 9) or Annex III(q 8) with an appended explanation of the domestic recognition effect which the creditor would extrapolate.

358  The Brussels IIa Regulation

iii.  The Approach of the Recast Regulation – Not Necessarily ‘Enforceable’ but Possessing ‘Binding Legal Effects’ Article 65(1) of the recast Regulation no longer requires that the authentic instrument or agreement on legal separation or divorce must be ‘enforceable’, instead the wording has been revised to require the authentic instrument or agreement to produce ‘binding legal effects’ in the Member State of origin. This replacement supports the conclusion that under the recast Regulation the creditor can pursue either a recognition application or an enforcement application (or both) in this context as long as his authentic instrument etc possesses the required domestic binding legal effect(s) required to support his application. In the present context the meaning of these binding legal effects is partially set out by the third sentence of Recital 14; the essential component for authentic instruments and settlements is that the agreement acquires ‘binding legal effect’ following the formal intervention of a public authority (or other authority as communicated to the Commission by the Member State of origin). Mere private agreements cannot circulate but agreements that are neither ‘decisions’ nor authentic instruments for the purpose of the Regulation may so circulate if they have been registered by a public authority (such as a notary) competent to so act.101 Article 65(2) of the recast Regulation applies to authentic instruments and settlements concerning parental responsibility. It follows Article 65(1) by requiring that the authentic instrument or agreement has ‘binding legal effect’ in the Member State of origin but additionally provides that it must also be enforceable in the Member State of origin. Unlike the forerunners of the recast Regulation, which all unhelpfully lacked specific certificates, the meaning of enforceable in this context is illustrated further by the Annex IX certificate concerning parental responsibility applications.102 Each new certificate requires such domestic binding legal effect before it can be issued and further that this fact be specifically indicated on each certificate so employed. Interestingly, though Article 66(1) of the recast Regulation requires that the Annex IX certificate contains a summary of the enforceable obligation, there is no indication on the face of the Annex IX certificate that enforceability in the strict sense is a requirement to issue the certificate; domestic binding effect is required (and must be indicated on the certificate by inserting the date from which it applies at 12.5) but a lack of domestic enforceability in the Member State of origin is assuredly not fatal to the use of the certificate for recognition and appears to merely indicate the reasonable proposition that an authentic instrument or agreement on a matter of parental responsibility that 101 Summarising Recital 14 sentences 4, 5 and 6. 102 Art 66(5) of the recast makes cross-border recognition or enforcement of authentic instruments or agreements conditional on the production of the relevant Annex VIII or IX certificate.

The Brussels IIa Regulation  359 is not enforceable in the Member State of origin cannot become enforceable in another Member State merely by the issue of the Annex IX certificate.103 It seems plain from the article text and the Annex IX certificate that though an authentic instrument concerning parental responsibility lacking an enforcement effect in the Member State of origin cannot be enforced in the Member State of enforcement, there is nothing in the text or on the certificate to prevent the issue of the certificate for the sole purpose of recognition in the Member State of enforcement. Though it would be logically dubious to attempt to deduce the correct interpretation of Article 46 of the Brussels IIa Regulation from the general text in Article 30 of the recast Regulation, it is reasonable to notice that the interpretation of ‘enforceable’ offered in the analysis above is also compatible with the recast text despite having been derived from first principles rather than from the recast text itself (or from debates relating thereunto).104 A re-evaluation of the restrictive academic view of ‘enforcement’ in Article 46, for which as far as the author is aware there is no supporting case law, is therefore suggested in light of the analysis provided above to include rather than exclude isolated recognition applications in the cross-border possibilities offered by the Brussels IIa Regulation to authentic instruments and settlements.

F.  Recognition in General Terms The special and limited meaning of cross-border ‘recognition’ in the context of ‘divorce’ applications has already been discussed and explained to relate to ‘­recognition of the dissolution of the link of marriage or of the legal separation’.105 It is thus a recognition of material effects that the authentic instrument or settlement can have rather than an attempt to graft the procedural recognition effects of judgments onto enforcement titles that cannot support them that is intended.106 A comparable form of recognition for what will normally be the existence of parental responsibility is also required by the Brussels IIa Regulation which at Article 2(7) defines parental responsibility as meaning all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access.

103 See point 14 of Annex IX which provides for the precise delineation of the enforceability, if any, of the parental responsibility at issue. 104 The restricted nature of the majority of the preparatory texts at the time of writing having prevented the exploitation of this potential ‘short-cut’. 105 See s II of this chapter discussing the clarification of the meaning of recognition by the Borrás Report (n 17) in n 65. 106 R Hausmann, Internationales und Europäisches Familienrecht 2nd edn (Munich, CH Beck, 2018) Art 46 EuEheVO, N, paras 296 to 297, 1294.

360  The Brussels IIa Regulation The extent to which such an authentic instrument can be recognised or enforced across borders via the Brussels IIa Regulation necessarily depends on it featuring a material content reflecting the Regulation’s autonomous conception of ‘civil law’.107 Thus an authentic instrument that records in enforceable terms the terms of contact or custody etc between the child’s parents (or another aspect of parental responsibility eg concerning the administration of the property of the child) that an authority in the Member State of enforcement directs shall be civilly enforced can so benefit. Equally, a return obligation contained in such an authentic instrument could also be similarly recognised (and then enforced).

G.  Enforcement in General Terms If cross-border recognition is not sufficient and enforcement is also required, the enforcement provisions of the Brussels IIa Regulation are not all wholly automatic. The Regulation provides two enforcement ‘tracks’: fast-track Section 4 orders (concerning Article 40(1)(a) rights of access and Article 40(1)(b) return orders entailed by a judgment given pursuant to Article 11(8)) benefit from the expedition resulting from automatic enforcement in the Member State of enforcement; to enforce a standard-track Section 2 order (concerning parental responsibility or orders on costs) the interested party must comply with the Regulation and apply for a declaration of enforceability from a listed court108 in the Member State of enforcement. Article 47(1) of Section 6 of Chapter III of the Brussels IIa Regulation refers the basic enforcement procedure to the law of the Member State of enforcement. Article 47(2) does two things: first, it requires that the relevant foreign enforceable title shall be enforced in the Member State of enforcement as if it had been delivered there; second, it imposes a sensible practical limit on the otherwise automatically enforceable fast-tracked access or return orders by insisting that a later enforceable judgment will take priority over the earlier fast-track order.109 Depending on what is to be enforced, Sections 2, 3, 4 and 6 of Chapter III of the Brussels IIa Regulation indicate how the foreign enforcement title is to be given cross-border effect in the Member State of enforcement.

107 Though Recital 7 and Art 1(1) of Brussels IIa Regulation require that the matter be ‘civil’, this concept is expanded considerably by Art 1(2) and again by Art 2. It has been construed autonomously by the CJEU. The recast Regulation at Recital 5 confirms that an autonomous approach to the interpretation of ‘civil matters’ is required. Hence under either Regulation domestic ideas of what is meant by ‘civil matters’ must yield if it clashes with the autonomous interpretation. 108 As notified to the Commission under Art 68 of the Brussels IIa Regulation. 109 Though not technically an exception against enforcement this provision has an analogous effect; see analysis by P McEleavy, Art 47, paras 1–3, 421–22 of Magnus and Mankowski (n 84).

The Brussels IIa Regulation  361

H.  Proceeding to Cross-Border Recognition and/or Enforcement in the Context of Authentic Instruments via the Brussels IIa Regulation Article 46 directs that qualifying authentic instruments, ‘shall be recognised and declared enforceable under the same conditions as judgments’. Unlike most of the European Regulations considered in this book, there is no direction that such recognition or enforcement of authentic instruments shall proceed ‘as appropriate’ nor ‘as necessary’: prima facie therefore all the provisions of Chapter III may potentially be applicable in principle to the recognition and enforcement of a Brussels IIa authentic instrument (if this is possible given the differences between authentic instruments and judgments). Thus, the Brussels IIa Regulation authentic instrument is not restricted to opposition based on a manifest breach of public policy; if any of the Article 22 or Article 23 exceptions should be demonstrated in the Member State of enforcement the recognition and enforcement of that authentic instrument will therefore be prevented in that venue. As the Brussels IIa leaves the matter of procedural operation to the domestic law of each Member State, these exceptions may, depending on venue, be applied ex officio or following an application. Despite the breadth of the available exceptions it seems that no case involving authentic instruments has yet been reported at the national or European levels under either the Brussels IIa Regulation or the Brussels II Regulation: as it seems reasonable to conclude that these provisions are uncommonly used for authentic instruments for which recognition is automatic, they are only set out in outline.110 The dearth of reported case law means that there are unanswered questions concerning the potential operation of Article 22 (and 23) in the context of authentic instruments, not the least of which is how to reconcile the provisions on irreconcilability between judgments to involve authentic instruments: further, is irreconcilability involving only authentic instruments also covered? As such matters are however hypothetical, they will not be explored further. Article 22 applies to the non-recognition of divorce, separation or annulment and forbids recognition if via Article 22(a) this recognition would be manifestly contrary to the public policy of the enforcement venue. Unsurprisingly public policy cannot be used in the enforcement venue to investigate: the jurisdiction of the court of origin;111 nor differences in applicable law;112 and, nor may there be an investigation into the substance of the enforcement title via the public policy exception.113 Siehr speculates that Article 22(a) could be triggered by attempts 110 For more detail on the probable operation of the Art 22 and 23 exceptions in general terms, see K Siehr, Art 22 and Art 23 in Magnus and Mankowski (n 84) with further references. Also, Andrae, Art 22 and 23, 2472–80 (n 94). 111 Art 24 forbids this. 112 Art 25 forbids this. 113 A révision au fond is forbidden by Art 26.

362  The Brussels IIa Regulation to recognise a homosexual divorce or a purely religious divorce.114 Article 22(c) forbids recognition of the foreign authentic instrument/settlement if this would be irreconcilable with a judgment given in proceedings between the same parties and in the same Member State in which recognition is sought; in this situation the first determination prevails over the later one. Article 22(d) deals with another form of irreconcilability arising when the foreign authentic instrument is irreconcilable with an earlier judgment from another State (which need not be an EU Member State) if this earlier judgment also complies with the recognition requirements115 of the present enforcement venue (ie is recognisable there too) it prevails as the earlier provision. Of the four exceptions provided by Article 22 only Article 22(b) seems incapable of straightforward application in this context as it concerns violation of defence rights by judgments given in default of appearance with defects in service relating thereunto.116 Article 23, which applies to the non-recognition of ‘judgments’ concerning parental responsibility, is still more extensive than Article 22, though also subject to the restrictions of Articles 24–26: it forbids recognition (and hence enforcement) if via Article 23(a) this would be manifestly contrary to the public policy of the enforcement venue taking into account the best interests of the child.117 Article 23(b) forbids recognition of an authentic instrument or settlement drawnup or achieved, ‘except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought’.118 Article 23(d) forbids recognition if a person objects that the authentic instrument or settlement infringes his or her parental responsibility and does so in circumstances where he or she was not given an opportunity to be heard. Article 23(e) forbids recognition of the foreign authentic instrument or settlement if this would be irreconcilable with a later judgment, ‘relating to parental responsibility given in the Member State in which recognition is sought’.119 Article 23(f) forbids recognition if the foreign authentic instrument or settlement would be irreconcilable with a later judgment relating to parental responsibility given in another Member State or a later judgment given in a non-Member State that is the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought. Lastly, Article 23(g) forbids recognition if the Article 56 procedure is not complied with. For the same reasons outlined in the

114 K Siehr in Magnus and Mankowski (n 84) Art 22, paras 2–3 and further possibilities paras 13–24. 115 Whether directly under the Brussels IIa Regulation or via an earlier non-EU convention. 116 Though an authentic instrument that was forged could potentially be relevant in this context, the fact of the forgery would normally deprive the previously assumed authentic instrument of its status as an authentic instrument and hence collapse its legal efficacy for cross-border purposes. 117 Siehr notes that Art 23(a) adopts the text of Art 23(2)(d) of the 1996 Hague Convention; K Siehr in Magnus and Mankowski (n 84) Art 23 para 11, 306. 118 ibid, Art 23, para 23, 309, Art 23(b) adopting the text of Art 23(2)(b) of the 1996 Hague Convention. 119 Later determinations on parental responsibility should naturally prevail over earlier ones.

The Brussels IIa Regulation  363 context of Article 22(b), Article 23(c) also seems inapplicable to authentic instruments or settlements. Section 2 of Chapter III of the Regulation concerns the application for a declaration of enforceability (Article 36(2) allows the applicant the option of requesting only partial enforcement) concerning enforceable judgments on parental responsibility granted within a participating EU Member State. As adapted to authentic instruments, Article 28 requires that the qualifying foreign authentic instrument be enforceable in the Member State in which it was drawn-up or registered and allows any interested party to seek a declaration of this enforceability in another participating Member State120 from a local court as specified by Article 29. The Article 29 court is as specified to the Commission in accordance with Article 68. If the local jurisdiction of this court must then also be determined to indicate the venue for the enforcement application,121 Article 29(2) indicates that the matter is determined by either the habitual residence of the person targeted by the enforcement application or by the habitual residence of the child concerned in the application. If the Article 29(2) possibilities are required but neither indicates a local jurisdiction, the local jurisdiction is given to ‘the local court for the place of enforcement’.122 The procedure for making the application is left to be determined by the law of the enforcement venue by Article 30(1) and hence may vary considerably within the participating Member States. It is required by Article 30(2) that the applicant either gives an address for service (local to the relevant court), or, if this should not be a usual domestic requirement, that he appoints a representative ad litem. The required documents as indicated by Articles 37 and 39 must be provided with the application to the Court. The court is under a duty to decide without delay and with reference only to the Article 22 or Article 23 factors and in light of Article 24 and Article 26; neither the enforcement target nor the child concerned may make representations at this stage of proceedings.123 The court is required to notify the applicant (not the other parties) of the outcome, ‘without delay’ but under its own civil procedures.124 The usual outcome of the proceedings thus outlined will be a positive decision granting the application wholly or in part. Article 36(1) requires the court to attempt to allow partial enforcement if only parts of the title presented for enforcement are enforceable. Whether wholly or partially positive or negative, the point at which a decision on the application is reached in the Member State of enforcement is the point at which appeals within the exequatur process125 eg concerning Articles 22 or 23 120 In the UK the interested party must first register the authentic instrument, Art 28(2). 121 For background and the interrelationship of para 1 and 2 of Art 29 see D McClean in Magnus and Mankowski (n 84) Art 29, para 5, 325. 122 ibid, Art 29, para 9, 326. 123 Art 31. 124 Art 32. 125 A point noted by Mankowski (n 84) Art 33, paras 1–2, 332 citing Hüßtege (n 94) in Thomas and Putzo, Art 33, para 1, 2212. Hausmann (n 106) Art 33, n 174, 1269 concurs.

364  The Brussels IIa Regulation become possible for disappointed applicants or those in the Member State of enforcement who have, to borrow Mankowski’s term, been ‘aggrieved’ by the applicant’s successful application.126 The appeal process in Article 33 is directed to the Article 68 appeal court appropriate to the appeal; it is to be conducted as a contradictory matter in which all sides to the original application decision can participate.127 If the initial applicant is also the appellant, the enforcement target must also be summoned to appear before the appeal court.128 If the enforcement target is habitually resident in the Member State in which the enforcement was sought the appeal must be lodged within one month of service of the declaration of enforceability, if the target is habitually resident in a different Member State he has two months.129 A further limited appeal is possible via Article 34 on a matter of law to the relevant Member State court listed by the Article 68 notification as having this final appeal function. At no point in the possible appeals is there an automatic suspension of the effect (if any) of the declaration of enforceability, Article 35 allows for a stay of proceedings in the enforcement venue but makes this conditional on an ordinary appeal being active (or still being possible in temporal terms). As in the present context the enforcement title would be an authentic instrument, for which there can be no ordinary appeal, it appears that though there may be an appeal against a decision to allow a declaration of enforceability derived from an authentic instrument, the procedures of the Brussels IIa Regulation do not allow an application that has been granted to be stayed in the enforcement venue during any such appeals. That said, an authentic instrument is potentially vulnerable to suspension withdrawal or amendment originating from the Member State of origin; if this occurs, it should also affect the enforcement application in the Member State of enforcement. To actively seek a declaration of recognition or to oppose such cross-border recognition130 and for the enforcement of an authentic instrument concerning parental responsibility the creditor must apply as per the Brussels IIa Regulation131 and comply with abovementioned Sections 1 and 2 plus complying with the common provisions of Section 3 of Chapter III concerning Article 37(1) document production132 (or if the matter is via the fast-track the equivalent documents specified by Article 45) and the Article 39 (or fast-track equivalent) certificate

126 Art 33 Brussels IIa Regulation and see Mankowski (n 84) Art 33 paras 1–2, 332, noting at 333 that Arts 33–35 do not appear to apply to Section 4 of Chapter III. 127 Art 33(3). 128 Art 33(4), if he fails to appear an Art 18 examination as to admissibility must ensue. 129 Art 33(5). 130 Though such recognition is automatic it may still be the subject of an application for a declaration establishing or disputing that recognition. 131 And must serve any documents requiring such service via Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 ELI: http://data.europa.eu/eli/reg/2007/1393/2013-07-01. 132 Art 37(2) concerns judgments by default and thus does not appear relevant in the present context.

The Brussels IIa Regulation  365 requirements. Article 37(1) specifies that a copy of the judgment which establishes its authenticity133 and an Article 39 certificate must be produced by a party seeking or contesting recognition or applying for a declaration of enforceability. Without the production of an authentic copy of the enforcement title and the production of the appropriate Article 39 Annex I or Annex II certificate there should be no recognition or enforcement of the judgment.134 Adjusted to the present context of authentic instruments, Article 37(1) means that the applicant must provide an authentic copy of the authentic instrument (or an authentic official copy of the relevant enforceable parts of it) plus a suitably manually corrected Article 39 certificate issued by the authority that drew-up or registered the authentic instrument.135 If the authentic instrument concerns a fast-track case then Article 45 applies instead of Article 37: it is broadly similar in requiring the production of a suitably authentic copy of the relevant enforcement title but it differs by imposing a translation requirement for the essential accompanying certificate issued via Article 41(1) or Article 42(1) for which Article 45(2) specifies the translation of given points of the appropriate certificate into the official language (or an acceptable language) of the Member State of enforcement.136 Article 38(1) deals with the consequences of a failure to produce a specified document (other than the judgment, authentic instrument or settlement itself which is always required by the Regulation in its authentic copy form because it will have a role in the adjustment of civil status records)137 and gives the court to which the application is directed the familiar options138 of either specifying a time for document production, accepting an equivalent document or proceeding without the production of the missing document if the court concludes that it has sufficient information to allow it do so. Article 38(2) allows the court to request the translation of any produced document, presumably including the authentic copy of the judgment, authentic instrument or settlement, and requires that such translation shall be ‘certified’ by a person qualified to undertake such translations in one of the 28 Member States.139 There is no requirement that the judgment, authentic instrument or settlement be presented in translation,140 indeed it must be presented as an authentic copy in

133 According to Art 52 no legalisation can be required for ‘judgments’ with which authentic instruments and settlements are, for the purposes of recognition and enforcement, equated. 134 Such an absence should also defeat automatic recognition. 135 Hausmann (n 106) Art 46 EuEheVO, N, para 295, 1293. 136 For Art 41(1) point 12 must be translated; for Art 42(1) point 14 must be translated. Concerning translation requirements see footnotes to Art 38(2) below. 137 Referring to para 107 of the Borrás Report (n 17) U Magnus, Art 38(1), para 5, 366 in Magnus and Mankowski (n 84). 138 It is related to Art 48 of the Brussels Convention and to Art 55 of the Brussels I Regulation, neither of which would allow a translation to substitute for a copy of the enforcement title. 139 There is no requirement that the person certifying must also undertake the translation, nor that he has any specific connection to the Member States of origin or enforcement, see U Magnus, Art 38(2), paras 23–24, 369–70 in Magnus and Mankowski (n 84). 140 The limited translation requirements for the relevant fast-track Annex certificates are noted above.

366  The Brussels IIa Regulation the language in which it was issued. Thus, though the applicant may additionally present his authentic instrument in a language more familiar to the court if he so wishes, there is no obligation on him to so act. Article 39 requires the competent court or authority in the Member State of origin to issue a certificate appropriate to the claim at the request of any interested party. Though there is no doubt that such a certificate is required for judgments, the lack of a certificate dedicated to or even referring to authentic instruments (or settlements) could be interpreted to indicate that no such certificate is required for authentic instruments etc. Such an argument is however one that lawyers would be unlikely to suggest to a client as, except in the circumstance that an applicant was sure that the enforcement venue would concur, it would be likely to lead to the application being rejected. As indicated in various places above, academic opinion has concluded that the production of a certificate (albeit with manual corrections to indicate that it describes an enforcement title that is not a judgment) is probably required for crossborder recognition and enforcement via the Brussels IIa Regulation.141 Magnus argues in favour of this conclusion as without the suitably amended certificate the enforcement court would have no confirmation of the domestic ‘enforceability’ of the authentic instrument or settlement in the Member State of origin.142 To the extent that such ‘enforceability’ refers to the domestic legal effects of the authentic instrument in the sense argued for above concerning the meaning of ‘enforceable’, this point is as compelling as Paraschas’ simple observation that there is no benefit in depriving the court in the enforcement venue of the relevant information that can be included on an amended certificate.143

IV.  Proceeding to Cross-Border Recognition and/or Enforcement in the Context of Authentic Instruments via the Recast Regulation A.  The Recast Regulation – Continuity and Discontinuity Unsurprisingly the recast Regulation will abolish the need to apply for a declaration of enforceability by automating all cross-border enforcement applications. This automation will not however render what were previously known as the two different ‘tracks’ to enforcement wholly uniform as the ‘old’ Brussels IIa Article 40(1)(a) rights of access and Article 40(1)(b) return orders (which are called ‘privileged 141 Gottwald (n 97) paras 21–22; Hausmann (n 106), Art 46, N, para 285, 1293; Magnus (n 92) Art 46, para 19, 419; Andrae (n 94) Art 46, para 14, 2519; Paraschas (n 94) Art 46, paras 22–23, 570; and Rauscher (n 88) Art 46, para 13, 366. 142 Magnus (n 92) Art 46, para 19, 419. 143 Paraschas (n 95) Art 46, para 21, 570.

New Cross-Border Requirements  367 decisions’ by Section 2 of Chapter IV of the recast Regulation) still need to be expedited and hence the recast preserves this for privileged decisions.144 For all its reforms and deletions of redundant provisions, the recast Regulation demonstrates considerable continuity with the provisions of the Brussels IIa Regulation. This is made plain by Recital 90 and the recast Regulation’s Annex X Correlation Table. Despite numerous stylistic changes, the new provisions are often similar to Brussels IIa provisions as, somewhat ironically, the automation of the recast Regulation’s enforcement system requires additional protection of the enforcement target’s defence rights. That said, the continuity between the Regulations rapidly decoheres when the organisational specifics of recognition and enforcement are examined: the recast Regulation features stratified sectional provisions for recognition and enforcement of types of judgment and for specific non-judgment enforcement titles. For authentic instruments and ‘agreements’ the recognition and enforcement provisions of the recast are differently organised from those of the Brussels IIa Regulation. The recast includes authentic instruments and agreements relating to ‘matters of divorce, legal separation and parental responsibility’ in Section 4 (Articles 64–68) of its Chapter IV.145 At first this does not seem so unusual, it is common that authentic instruments are located in a given section within such a chapter. In the recast however, the section is far more self-contained than usual and features unprecedented levels of detail and safeguarding for authentic instruments and the ‘agreements’ that now replace the ‘settlements’ of the Brussels IIa Regulation and its forerunners. Thus, the recast makes a systematic attempt to equip the authentic instruments and agreements to which it will apply with a coherent and self-contained set of legal provisions to facilitate permissible (and only permissible) cross-border recognition and enforcement effects between the participating Member States. Such arrangements have always been de rigueur for judgments, regrettably they are not normally associated with provisions concerning the cross-border potentialities of authentic instruments: the awkward treatment of authentic instruments across EU private international law provisions has been a recurring source of complaint in this book. The recast Regulation is therefore to be praised for taking non-judgment recognition and enforcement seriously and attempting to improve clarity and reduce confusion concerning, inter alia, the cross-border potentiality of authentic instruments. The natural question is why these developments occurred. 144 Art 42 recast Regulation. 145 Via Art 64 recast, an authentic instrument or agreement concerning divorce, legal separation or parental responsibility must have been registered, in a Member State with jurisdiction under Chapter II. This jurisdictional link is presumably designed to reassure the Member States that ‘divorce-tourism’ will not emerge as an unforeseen eventuality of certain Member States boosting the prospects of divorce by consent. The drafting of Art 64 does not make plain that this unusual jurisdictional requirement also applies to authentic instruments, the provisions of Art 66 however leave no doubt that it does so apply. This important matter is discussed below when the recognition and enforcement of authentic instruments under the recast Regulation is examined.

368  The Brussels IIa Regulation

B.  Reaching the New Recognition and Enforcement Provisions of the Recast Regulation Though there was a hint in the 2014 Commission Report146 that recasting would introduce dedicated annex certificates for authentic instruments and settlements, the Commission’s July 2016 Proposal147 gave no indication, beyond the expected consequences of the generalised automation of enforcement, of any other significant changes planned for authentic instruments or agreements. The few unrestricted documents presently available from the EU’s Consilium service or via links embedded in the limited consultative contributions of the European Parliament148 indicate that what unexpectedly occurred in relation to authentic instruments and agreements took place between February 2017 and led to changes in the draft text probably in summer or autumn of 2018 prior to finalisation by 30 November 2018 when the text of the General Approach was achieved.149 The developments concerning authentic instruments and agreements were catalysed by the receipt of answers from 21 Member States to three questions circulated in February 2017 by the Maltese Presidency on authentic instruments and agreements, these answers were presented collectively in a document dated 5 April 2017.150 The document indicated a developing trend for certain Member 146 See p 9, fn 44 of Report from Commission on the application of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 Brussels, 15.4.2014 COM(2014) 225 final. 147 See the very mild amendments to Art 46 BrIIa in renumbered 2016 Commission Proposal draft Art 55 and unexceptionable draft Art 56 concerning the new dedicated certificate at 64 and 101 of Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) Brussels, 30.6.2016 COM (2016) 411 final. Though abolition of ‘intermediate measures’ (ie exequatur) and the smoothing of that which remains is frequently referred to in general terms by the very detailed 187 page staff working document accompanying the 2016 Proposal, the working document (which includes in its annex 3 a study on the assessment of Regulation (EC) No 2201/2003 and the policy options for its amendment from May 2015 by Deloitte and Coffey and over pages 88–89 sets out the other studies upon which its proposals have been based) makes no specific suggestions for amendment of the provisions concerning authentic instruments or agreements. The Deloitte and Coffey report does note at 132 that mediation is one way in which authentic instruments concerning parental responsibility could arise. Commission Staff Working Document Impact Assessment Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) SWD (2016) 208 final. 148 The fact that Brussels IIa matters proceeded under the Special Legislative Procedure meant that Parliament’s role was merely consultative. 149 But for renumbering and certain stylistic adjustments, the text of the general approach presented for ministerial approval by (Note 14784/18 of 30 November 2018) and considered at the meeting on 7 December 2018 (Note 15401/18 of 12 December 2018) is essentially identical with the final polished version of the recast announced by press release in June 2019 www.consilium.europa.eu/en/press/ press-releases/2019/06/25/more-effective-rules-to-deal-with-cross-border-matrimonial-matters-andparental-responsibility-issues/. The recast Regulation was finally published in the Official Journal on 2 July 2019 (OJ L 178, 2.7.2019, p 1–115). 150 Note 7979/1/17 Rev 1 of 5 April 2017.

New Cross-Border Requirements  369 States, including France, to move towards a domestic reliance on non-judicial documents concerning Brussels IIa ‘divorce’ and parental responsibility issues. When the Presidency and the Working Party on Civil Law Matters turned their full attention to the issues raised by the compiled answers it led to the revised draft text concerning authentic instruments and agreements published in March 2018: the document offered a heavily revised draft definition text concerning authentic instruments and a substantially revised draft Article 55.151 The March definition text for authentic instruments, which was not to feature as a definition in the general approach text or in the final recast, is notable for requiring that the Member State in which the authentic instrument is drawn-up or registered must itself have jurisdiction ‘in the matters falling within the scope of this Regulation …’.152 A further restriction was added by requiring that the public authority or other authority that would confer authenticity on the signature and contents of the authentic instrument should have been ‘empowered for that purpose’.153 Though these suggestions did not ultimately affect the recast definition of authentic instrument, they have been incorporated into other provisions of the recast Regulation. The March 2018 draft Article 55 text made significant deletions (in light of the expanded draft definition text) to the 2016 proposal text and added a draft Article 55(2) stating ‘The authentic instrument or agreement produced must satisfy the conditions necessary to establish its authenticity in the Member State of origin’.154 These restrictive draft proposals indicate that their proponents and, given that the issues emerged in a recasting exercise, also the Commission were concerned to prevent the recast Regulation being used to allow parties to the sort of authentic instruments or agreements disclosed by the answers to the 2017 questions from benefiting from the automated cross-border possibilities of the intended Regulation while, as is normal for authentic instruments, avoiding its jurisdictional controls.155 As will be seen, ultimately these safeguards will not materially affect the status quo for authentic instruments under the recast Regulation, they are however suggestive of anxieties among the Member States concerning changes from a well-regulated cross-border judgment concept towards more fluid alternatives lacking overt jurisdictional controls. The trend away from ‘judgments’ to less well-regulated alternatives could pose difficulties for any Member State legal system that had not embraced, or

151 Note from Presidency 6625/18 of 9 March 2018. 152 ibid, draft Art 2(1)(b1), 2. 153 ibid, draft Art 2(1)(b1)(ii), 2 and fn 2 describing this ‘empowerment’ as an autonomously defined concept with horizontal relevance across other EU instruments featuring authentic instruments. Agreements (draft Art 2(1)(b2), 2) also required that the public authority or other authority which approved or registered the agreement document possessed such empowerment, albeit that in this context the empowerment concept was, according to footnote 3, to be defined by national law. 154 ibid, draft Art 55(2), 3. 155 See ch 3 n 60 above concerning the lack of direct international jurisdictional control of authentic instruments and their intra-EU creators. Previously this fact was simply accepted by EU private international law Regulations.

370  The Brussels IIa Regulation had embraced differently, the new trend; it could be faced with incoming foreign authentic instruments and agreements that the new recognition and enforcement environment would make it difficult to regulate. As well as concerning expected ‘foreign’ applications, unexpected ‘domestic’ applications could be involved if ‘home’ nationals sought to exploit their free-movement rights by either arranging a domestically impermissible ‘agreement’ in a different EU legal system from their habitual residence, or, more ‘classically’, by traveling abroad to participate in the drawing-up of a lawful authentic instrument in another Member State in which they are momentarily present but which otherwise lacks any (jurisdictional) connection with the matter. Such theoretical and practical problems are hardly new in the context of ‘family law matters’. If however, the freedom of action of the domestic enforcement venue should also be restricted by a directly applicable EU Regulation designed to facilitate the very cross-border effectiveness of authentic instruments and agreements that the enforcement venue wishes to retard, and if this facilitation should be via provisions that might be described as lacking optimal legal clarity, a significant potential for conflicts between EU norms and different domestic norms across multiple venues would seem probable. It is possibly worth repeating that cross-border matters of ‘divorce’ and parental responsibility belong to an area of law that since the beginning of the EU’s private international law provisions has been acknowledged as potentially controversial and capable of straining the quality of what is now called mutual trust to the breaking point.156 Such anxieties as motivated the March 2018 amendments endured into the final recast text, albeit in a somewhat subtler form than in the March draft. By the end of July 2018 the Presidency issued a note concerning various fundamental elements of the recast; authentic instruments were addressed by points 28–30.157 The note spoke of a need to clarify the existing Brussels IIa Regulation provisions due both to divergent views on their interpretation/application and because of the growing trend to use extra-judicial agreements; the Presidency recognised the need to adapt the existing provisions in light of these developments but also emphasised the need for additional safeguards, particularly in the context of agreements, taking the form of requiring approval or registration by public authorities and a further check by such approving or registering authorities that the jurisdictional rules set out in the recast Regulation indicated that they possessed jurisdiction over the matter at hand.158 In the July ‘fundamental elements’ note it was not quite clear whether authentic instruments were then still intended to be subject to the same protective restrictions as ‘agreements’. The matter was resolved by the summary concerning authentic instruments and agreements featured in the compromise package prefacing the



156 See

text associated with nn 21 and 22 in this chapter for the view of Jenard. 11400/18 26 July 2018 at 7. 158 ibid. 157 Note

New Cross-Border Requirements  371 general approach for ministerial consideration of 30 November 2018: as the quote below demonstrates, the protective restrictions were and are intended to apply to both authentic instruments and agreements, E – Clearer rules on the circulation of authentic instruments and agreements’ 20. Having regard to the growing number of Member States which allow extra-judicial agreements on legal separation and divorce or on matters of parental responsibility, the Presidency compromise text makes it clear that the circulation of such authentic instruments and agreements is a horizontal issue, and should be facilitated, subject to certain safeguards. As the Regulation should not allow free circulation of mere private agreements, the solution should be that circulation is possible only if an authority depending on each national system – formally drew up or registered the authentic instrument or registered the agreement. It is essential that circulation can only take place where the jurisdiction of the Member State whose authorities formally drew up or registered the authentic instruments or registered the agreements has been verified in the Member State of origin. Furthermore, the relevant certificate needs to be issued. Finally, further safeguards, such as public policy, should be applied as a ground for refusal of recognition or enforcement.159

Thus, the changes in the final recast Regulation concerning authentic instruments and agreements are in response to the trend towards non-judgment titles concerning ‘divorce’ and parental responsibility and are intended to minimise or avoid clashes between EU and domestic norms in these areas. Cross-border circulation of the non-judgment titles is to be conditional on: a) the jurisdiction of the Member State in which the authentic instrument was drawn-up or registered (or in which the agreement was concluded) being verified in the Member State of origin;160 b) the right certificate being used; c) further safeguards including (but not limited to) the public policy exception. These requirements appear to indicate an institutional desire to police the emerging possibilities of the non-judgment enforcement titles, whether any such desire is transmitted effectively to the provisions of the recast Regulation is a matter that is now explored.

159 Note 14784/18 of 30 November 2018, 8. My italics. 160 As well as covering the orthodox scenario of a title from State ‘A’ (the Member State of origin) being permitted to circulate in the other participating Member States, the wording here possibly also contemplates the very unorthodox possibility that an authentic instrument or agreement from State ‘A’ (not necessarily a participating Member State) that has binding effect in State ‘B’ could be enabled to be recognised and enforced in State ‘C’ via the planned recast Regulation if the authorities in State ‘B’ confirmed that when the relevant non-judgment title was drawn-up etc in State ‘A’, State ‘A’ had jurisdiction under the recast Regulation. If this dual meaning was intended in November 2018 it must have been adjusted back to the orthodox by the time the final Regulation was published as the Annex VIII and IX certificates do not appear to allow such an unorthodox eventuality. As the ­majority of the documents associated with the drafting of the recast are not yet available it is not possible to explore this issue (if issue it be) further.

372  The Brussels IIa Regulation

C.  The Final Recast Regulation Provisions on Authentic Instruments and Agreements In a development that may be more significant than the abovementioned reactions to emerging domestic practice concerning ‘divorce’ and parental responsibility, the recast Regulation opts for a more structured organisation of its recognition and enforcement possibilities than hitherto in the Brussels II context. It not only differentiates more clearly the recognition and enforcement possibilities appropriate to different types of judgment than its forerunner but also provides a specific, discrete (and again clearer) section for authentic instruments and agreements in Section 4 of Chapter IV of the recast Regulation.

D.  Scope and Included Authentic Instruments for the Recast Regulation Article 64 recast defines the scope of Section 4 as applying to divorce, legal separation and parental responsibility for authentic instruments formally drawn-up or registered and registered agreements from a Member State assuming jurisdiction under Chapter II of the recast Regulation. Assuming, as seems likely, that the omission of annulment was deliberate, the theoretical possibility of cross-border recognition of an annulment via an authentic instrument or agreement will be no more. Equally, the introduction of the jurisdictional requirement by Article 64 will prevent the circulation of an authentic instrument drawn-up or registered (or an agreement registered) in a Member State lacking jurisdiction under the admittedly widely-drawn Chapter II provisions of the recast.161 Article 65 of the recast splits the recognition and enforcement of authentic instruments and agreements in accordance with their assumed subject matter. Thus, an authentic instrument dealing with legal separation and divorce can proceed to automatic recognition – not enforcement162 – via Article 65(1), whereas an authentic instrument concerning parental responsibility proceeds to automatic recognition and potentially enforcement via Article 65(2). The possibility of one authentic instrument concerning both a matter of divorce and including an enforceable parental responsibility agreement is real: if the creditor would 161 On ‘divorce’ jurisdiction Chapter II involves: Art 3 General jurisdiction; Art 4 Counterclaims; Art 5 converting a separation to a divorce; and Art 6 residual jurisdiction. On parental responsibility jurisdiction Chapter II involves: Art 7 general jurisdiction; Art 8 continuing access rights jurisdiction; Art 9 wrongful removal /retention jurisdiction; Art 10 choice of court; Art 11 jurisdiction based on child presence; Art 12 transfer of jurisdiction intra-EU; not Art 13 jurisdiction as this depends on a response to a request; Art 14 residual jurisdiction; to a limited extent Art 15 urgent case jurisdiction; and depending on the circumstances possibly Art 16 incidental question jurisdiction. 162 But for the consistent line of ‘recognition-only’ for the Art 65(1) authentic instruments or ­agreements encountered throughout Section 4, the reference back to Section 1 of Chapter IV could appear to hold out a possibility for an Art 65(1) authentic instrument to benefit from enforcement.

New Cross-Border Requirements  373 have his divorce recognised and seek the enforcement of the agreement the drafters have ensured that he must comply with both Article 65(1) and Article 65(2) by producing the Annex VIII and IX certificates. Each certificate is required to permit any cross-border circulation of the authentic instruments etc via the recast Regulation which lacks provisions capable of allowing the Article 65(2) Annex IX certificate to substitute for the purposes of Article 65(1) and its Annex VIII certificate. Under either subsection of Article 65 it is a condition precedent of circulation that the authentic instrument must have binding legal effect in the Member State of origin. Article 65(1) directs that such authentic instruments or agreements shall be recognised in other Member States without the need for special procedures; Section 1 of Chapter IV applies, unless Section 4 provides otherwise. For Article 65(2) authentic instruments and agreements on parental responsibility the requirement of binding legal effect in the Member State of origin is supplemented by a further requirement that the authentic instrument or agreement is also ‘enforceable’ in that Member State if it is to benefit from recognition and enforcement (without a declaration of enforceability) in other Member States via Sections 1 and 3 of Chapter IV, again unless Section 4 provides otherwise. It may be worth noting in passing that the provisions of Section 4 appear to so invalidate Articles 31(1), 32, 36(1–2), 37, 38, 39 and 41 of Section 1 because Section 4 provides its own measures in these respects.163 The remaining parts of Section 1 appear to apply to authentic instruments and agreements that are, according to Recital 70 to be treated as decisions for this purpose. Thus, it is suggested that the authorities in the Member State of enforcement may via Article 31(2–3) request translation/transliteration of an incoming authentic instrument/agreement, etc. The provisions of Section 3, which concern general provisions on enforcement procedures and appeals against enforcement etc are theoretically generally applicable and less prone to wholesale disapplication than the Section 1 provisions, but it remains to be seen how (and how often) Section 3 will be used in practice. The reformulation of the scope and organisation of the recognition and enforcement possibilities for authentic instruments and agreements by the recast Regulation indicates not only that it will not permit the cross-border recognition of an annulment recorded as an authentic instrument, but also that it will not allow the cross-border enforcement of any domestically enforceable authentic instrument or agreement concerning a divorce or legal separation. The seeming removal of authentic instruments and agreements as potential enforcement titles for the special category of privileged decisions, the enforcement 163 Art 36(3) which forbids a challenge to the issuance of the certificate, does appear to apply as there is no Section 4 provision that makes alternative provision in this context. Such a provision is familiar from Art 10(4) of the EEO Regulation where it has comparable general effect across all enforcement titles.

374  The Brussels IIa Regulation of which is dealt with in Section 2 of Chapter IV, is open to question, particularly in the contest of those authentic instruments issued and registered in Member States by wholly public authorities. Though it may be that such official documents can still be presented as evidence in the course of the special and expedited procedures required for privileged decisions, it is unclear (at present) that there was a pressing need to exclude their previous recognition effects by this reform. It is unclear that this reform will hasten improved decision-making or justice in this context.

E. Certificates A significant improvement under the recast Regulation is that finally authentic instruments and agreements shall have dedicated certificates; unfortunately, instead of bifurcating on the type of enforcement title (and making general provision for all possibilities for each title) the two certificates apply to both enforcement titles and bifurcate on the subject matter. Article 66 sets out the manner of use of the certificates and the circumstances in which such a certificate may be used. The certificates themselves are found in Annexes VIII and IX. An Article 65(1) matter must use the Annex VIII certificate, while an Article 65(2) matter must use the Annex IX certificate. Article 66(5) makes plain that such cross-border recognition and enforcement as the recast allows can only proceed in the Member State of enforcement if the applicant produces the appropriate certificate: there is thus no discretion on the part of the applicant nor for the Member State targeted for recognition (or enforcement) under the recast Regulation. The certificate(s) must be used if there is to be any cross-border recognition or enforcement under the recast. This conclusion sits somewhat uneasily with the Article 65(1) statement that for a qualifying authentic instrument, recognition shall occur in other Member States ‘without any special procedure being required’: it is also difficult to reconcile with the Recital 90 instruction to maintain continuity with earlier Brussels IIa provisions when possible. In one sense the legal (if not the practical) difficulty can be avoided by noting that the concluding sentence of Article 65(1) must also be read to understand the preceding sentence partially quoted above: thus, recognition proceeds via Section 1 of Chapter IV except where Section 4 makes other provision; Article 66(5) is one such provision and it qualifies Article 65(1–2) on this point. If it seems a little odd to seek to automate enforcement (on a general basis) and continue the automatic recognition of the Brussels IIa Regulation but to then make the conferral of such recognition and enforcement effects as are permitted depend upon the production of the certificate(s), it can be observed that the enforcement venue can only allow the cross-border effects if it knows of them; the certificates provide this information. The creation of dedicated certificates for authentic instruments and agreements is long overdue, it is however possibly the

New Cross-Border Requirements  375 case that some aspects of the recast provisions relating thereunto would benefit from somewhat less prescriptive drafting.164 The certificate is to be issued on the application of a party to the authentic instrument (or agreement) by the court of other authority communicated by the Member State of origin as competent to so issue to the Commission under Article 103 of the recast.165 If the certificate relates to an Article 65(2) matter, the final sentence of Article 66(1) indicates that it must contain a summary of any enforceable obligation that the authentic instrument or agreement contains. Presumably there is no need to record such an enforceable obligation if it is only recognition and not enforcement that is desired (or possible). Article 66(4) directs that the certificate shall be issued in the language of the authentic instrument or agreement to which it pertains: this certificate must be first issued and then produced if the cross-border effects are to be effective. Though the applicant may additionally request this, there is no obligation on the issuing authority to additionally provide a copy of the certificate in another official language of the EU.166 If the issuing authority does agree to this, the applicant must bear the additional costs and these costs may include the costs of providing the translation/transliteration required to complete those parts of the certificate that require more than box-ticking or the insertion of personal details.167 Article 66(2) sets out two conditions that must be met if the certificate is to be issued at all in the Member State of origin. The second condition in Article 66(2) (b) is relatively simple; the authentic instrument or agreement must have binding legal effect in the Member State of origin to permit issuance of the certificate. This provision also indicates, albeit obliquely, the essential point that it is the authentic instrument or agreement that is being recognised and enforced, not the certificate by which data relevant to the enforcement title at the point of certification is provided. The cross-border effects of an authentic instrument are extended by the recast Regulation and its certificates, but these effects depend upon the authentic instrument etc possessing domestic legal effect at the point of cross-border recognition and or enforcement. Ideally the recast would have included an article to generalise Article 44 of the Brussels IIa Regulation in the context of authentic instruments and agreements. Unfortunately, Article 44 of the Brussels IIa Regulation is a provision that was dispensed with in the course of the drafting of the recast: as matters stand, the continued need for the authentic instrument to be valid, unsuspended and operational in the Member State of origin to support the recognition or enforcement 164 In reacting to the trend to employ authentic instruments and agreements in this context the legislators have sometimes been prone to over regulate the treatment of non-judicial documents. 165 Art 66(1). 166 Art 66(4). 167 ibid, presumably the applicant who wishes for a translation of the authentic instrument’s original Portuguese enforceable content into Hungarian must either hope that his Portuguese notary is fluent in Hungarian or must ask him to secure an acceptable translation on his behalf before presenting all necessary documents in Hungary plus the Portuguese Annex IX certificate and the Hungarian version thereof.

376  The Brussels IIa Regulation sought via the certificate must be deduced from the references to binding legal effects in Article 65(1–2) and Article 67 and legitimated via Recitals 67, 14, 62, 63, 64, 68, and 70. Recital 67 comes closest to the point by commenting in its second sentence that ‘the enforcement proceedings should be suspended, upon application or of the authority’s or court’s own motion, where the enforceability of the decision is suspended in the Member State of origin’. Though Recital 67 concerns enforcement proceedings concerning children and the need to respond to post-certification changes, the statement extracted above is suggested to be of general application in the context of the cross-border effects attributed to authentic instruments.168 The first condition in Article 66(2)(a) echoes Article 64, by insisting that the Member State of origin must have had jurisdiction under Chapter II of the recast Regulation: this is to be indicated by the public authority (or other authority empowered by the Member State of origin and communicated to the Commission via Article 103) ticking box 2:1 on the Annex VIII or Annex IX certificate. There will be a considerable component of trust in any such jurisdictional assertion: no further information on its nature or basis is recorded on the relevant certificate. Presumably all that is required is that it is arguable that the Member State of origin could have had jurisdiction at the time of the drawing-up or registration of the authentic instrument or approval of the agreement. The Chapter II jurisdictional provisions are very wide and include residual domestic jurisdiction, it may be that it is to this familiar concept that the authority in the Member State of origin (which may reasonably have little or no prior experience of considering its own jurisdiction to act) will usually refer when ticking the jurisdiction box. As the jurisdiction that must be certified is described using the past tense, presumably because it refers to the earlier point in time when the authentic instrument was drawn-up or registered (or to when the agreement was approved), this temporal point may differ considerably from the point at which the relevant certificate is later issued. It follows that box 2:1 may be ticked by a different person to he who drew-up the authentic instrument etc. If ticked by a later hand, how is the ‘ticker’ to know that the authority responsible for the authentic instrument believed itself to be possessed of jurisdiction at the point at which it drew it up, etc? It would seem advisable that such authentic instruments should refer to the necessary jurisdiction under the recast Regulation to assist later cross-border applications. In practice it may well be that the jurisdictional control of the drawing-up or registering of the non-judgment enforcement titles specified by Articles 64 and 66 will be less effective than the legislators may have wished: if the desire was to prevent undesirable ‘tourism’ by which parties seek to use private international law to circumvent domestic provisions, it is doubtful that this can be ensured by asking the public authorities and officials in the Member State of origin to tick a box on a

168 See

also comment on Art 11 of the EEO Regulation in ch 5 above.

New Cross-Border Requirements  377 certificate issued to indicate that this quality was once possessed with reference to a widely drawn set of jurisdictional provisions. Though it is clear from Article 64 that recognition and enforcement should not proceed via Section 4 if the box is not ticked; what will occur if the box is ticked despite there being no such belief, or when the belief was wrong? Though the Member State of origin is directed by Article 67(1) to consider an application for rectification if there is a material discrepancy between the certificate and the enforcement title, and is instructed by Article 67(2) to effect an own motion withdrawal if the certificate was wrongly issued given the Article 66 requirements, it is assumed that an applicant will bring the matter to the attention of the authorities in the Member State of origin. It is however unlikely that such an applicant will wish to run the risks and pay to argue that despite the ticked box there was no jurisdiction at the relevant time when the authentic instrument was drawn-up or registered. Article 66(3) introduces a requirement which in the context of parental responsibility overrides Article 66(2). If the authority in the Member State of origin requested to issue an Annex IX certificate concerning parental responsibility should conclude that ‘there are indications that the content of the authentic instrument or agreement is contrary to the best interests of the child’,169 it may not issue the certificate despite ostensible compliance with the Article 66(2) requirements and a request to so issue from a competent applicant. Though the legislators laudably wished to avoid cross-border recognition or enforcement of parental responsibility authentic instruments or agreements that would not be in the best interests of the child, the overriding Article 66(3) requirement is vague indeed. What is meant by ‘indications’ in the present context of an ex parte application to a Member State of origin authority requesting it complete and issue a certificate seeking the cross-border recognition and enforcement of a parental responsibility agreement? Presumably a single serious ‘indication’ will suffice, despite the text speaking of a plurality, but what if the ‘indications’ emerge after the certificate is issued? As will be seen, though Article 67(2) requires an own motion withdrawal of a certificate that was granted wrongly with reference to the Article 66 requirements it seems that for Article 66(3) it is only indications at the time of issue of the certificate that are relevant.170 That said, Recital 69 establishes that the legislators intended that in exceptional cases a temporary suspension of enforcement proceedings by the enforcement authority should be possible if enforcement would expose the child to grave risks of physical or mental harm due to changes of circumstances or other post-decision temporary impediments. Article 68(2)(a)

169 My italics. 170 eg a certificate is issued and a day later the authority in the Member State of origin is told of ‘indications’ that had they been adduced the previous day would have triggered Art 66(3). Can these ‘indications’ be adduced to use Art 67(2) to withdraw the certificate? Technically, ‘no’. At the time the certificate was issued there were no such indications and thus technically Art 66 was complied with: Art 68(2)(a) then represents the long-stop in the Member State of enforcement.

378  The Brussels IIa Regulation also potentially allows resistance to recognition or enforcement in the Member State of enforcement if later emerging ‘indications’ demonstrate that this would be contrary to the best interests of the child. Assuming however that the issuing authority in the Member State of origin has issued an Annex VIII or IX certificate, that authority (as notified to the Commission pursuant to Article 103) remains responsible for the rectification and or the withdrawal of the certificate in accordance with Article 67. Article 67(1) requires this competent authority to act on an application – which may presumably come from any party concerned by the authentic instrument or agreement – to rectify the certificate because of a material error or omission that causes a discrepancy between the authentic instrument (or agreement) and the presently extant certificate. If the issuing authority itself ‘notices’ such a material error or omission it may of its own motion rectify the certificate. How it does this and how or whether it must then inform the parties concerned is left by Article 67(3) to the law of the Member State of origin. If the issued certificate was granted wrongly in the sense that it was not granted in accordance with the Article 66 requirements, the issuing authority must, either on application or of its own motion, withdraw the certificate.171 In all cases the law of the Member State of origin governs the procedure for the operation of Article 67: this is said to include any related appeals possible in connection with the rectification and or revocation in this context concerning the actions of the given issuing authority.172 If that authority should be a notary, it is probable that Article 67(1) and (2) can be applied quickly and relatively cheaply as: a) there is usually no notarial ‘appeal’ structure; and, b) no notary will wish to prolong an error of content or compliance that could expose him to legal liability and or to disciplinary proceedings. If the authority should be an administrative office, it will depend upon the appellate structures (if any) and the law and procedures in the Member State of origin. The Article 67 procedures could be quick and relatively inexpensive, but they could also vary substantially across the Member States.

F.  Refusing Recognition or Enforcement of a Foreign Authentic Instrument or Agreement The last specific article in Section 4 is Article 68, it sets out the exhaustive grounds of Article 68(1) and (2) that trigger the compulsory refusal by the Member State of enforcement to recognise and or enforce certified and otherwise competent Section 4 foreign authentic instruments and foreign agreements. Article 68(1) concerns refusals to recognise a foreign authentic instrument or a

171 Art 67(2). 172 Art 67(3). If any such actions are brought it will be interesting to see to what extent the public law nature of certain issuing authorities will interact with the recast Regulation.

New Cross-Border Requirements  379 foreign agreement concerning legal separation or divorce. Article 68(2) concerns the refusal to recognise or enforce a foreign authentic instrument or agreement concerning parental responsibility and is supplemented by Article 68(3), which is unusual in that it introduces a discretion allowing the enforcement venue to decide whether to decline to recognise or enforce a foreign agreement on parental responsibility contained in a foreign authentic instrument drawn-up or registered (or ‘registered’ if the parental responsibility agreement was in an agreement) without affording a child who was (then) capable of forming his or her own views an opportunity to express them. Save for Article 68(3), and the fact that Article 68 of the recast Regulation is tailored to authentic instruments and agreements, there is a high level of continuity between Article 68(1) and (2) of the recast and Articles 22 and 23 of the Brussels IIa Regulation. The three Article 68(1) grounds for refusal of recognition of an authentic instrument or agreement concerning legal separation or divorce are of the usual mandatory effect; if any one is detected the recognition must be refused by the Member State of enforcement. Article 68(1)(a) forbids recognition if the fact of granting this recognition173 would be manifestly contrary to the public policy of the Member State of enforcement. Article 68(1)(b) forbids recognition of the foreign authentic instrument or agreement if this would be ‘irreconcilable with a decision, an authentic instrument or agreement between the same parties in the Member State in which recognition is invoked’. Article 68(1)(c) forbids recognition of the foreign authentic instrument or agreement if this would be irreconcilable with an earlier decision, authentic instrument or agreement given in another Member State or in a non-Member State between the same parties, provided that the earlier decision, authentic instrument or agreement fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked.

It is a welcome development in terms of legal clarity that the irreconcilability that justifies a refusal to recognise the instant presented foreign authentic instrument or agreement under Article 68(1)(b–c) is now specified to extend from earlier judgments between the same parties to also include earlier authentic instruments or agreements with which the recognition of the new presented foreign authentic instrument cannot be reconciled. Article 68(2) concerns the circumstances in which the recognition or enforcement of a foreign authentic instrument or agreement in matters of parental responsibility must be refused. Article 68(2)(a) reproduces the public policy exception of Article 23(a) of the Brussels IIa Regulation to forbid recognition or enforcement of the foreign authentic instrument or agreement if this recognition or enforcement should be ‘manifestly contrary to the public policy of the Member

173 As ever it is the fact of recognition or enforcement that must trigger the public policy exception. It remains impossible in the recast Regulation to: review the jurisdiction of the court of origin, Art 69; to refuse to recognise because of differences in the applicable law, Art 70; or to examine the substance of the authentic instrument or agreement via a révision au fond, Art 71.

380  The Brussels IIa Regulation State in which recognition is invoked, taking into account the best interests of the child’. Article 68(2)(b) is modelled after Article 23(d) of the earlier Regulation but adapted to the context of Section 4 of Chapter IV of the recast Regulation. Thus, any person who claims that the recognition or enforcement of the foreign authentic instrument or agreement in the Member State of enforcement would infringe his parental responsibility may, if he was not involved in the drawing-up or registering of that foreign authentic instrument (or was not involved in the conclusion or registering of that foreign agreement), apply in the Member State of enforcement to prevent such recognition or enforcement. The significant difference of this provision over the Article 23(d) provision is that its ‘tailoring’ to suit the context of authentic instruments and agreements in the recast has changed the earlier deprivation of an opportunity to be heard into a failure to be involved in the drawing-up or registering of an authentic instrument. It may therefore be that under this recast provision the applicant has indeed been heard but may still oppose recognition and enforcement successfully because he was not involved in the drawing-up or registration of the presented foreign authentic instrument. In the absence of a Recital to explain precisely what is meant by a party’s ‘involvement’ in the drawingup and particularly the registration of an authentic instrument it will be for the ­enforcement venue to determine the meaning of these points.174 Articles 68(2)(c–d) deal with the refusal of recognition or enforcement in the Member State of enforcement due to the irreconcilability of the presented foreign authentic instrument or agreement with a later decision, authentic instrument or agreement on parental responsibility given in either the Member State of enforcement175 or in another Member State or in the non-Member State of the habitual residence of the child provided that the later decision, authentic instrument or agreement fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked or enforcement is sought.176

It is worth noting that in these two eventualities concerning irreconcilability the refusal of recognition or enforcement in the Member State of enforcement is mandatory but measured to the extent of the irreconcilability. A qualifying

174 It may be that the provision on agreements in Art 68(2)(b) is useful in this respect by emphasising the relevance of the applicant’s involvement in the conclusion of the agreement: frankly this seems to be the better touchstone. There are obvious reasons why a person who had agreed a matter of parental responsibility might not be ‘involved’ in the technical sense in the drawing-up or registration of the authentic instrument. It is the notary or other public official who draws-up the authentic instrument, not the parties, and it is the public authority that registers the document to thereby create the authentic instrument which, in this context seeks to record the parental responsibility agreement. It seems a pity that Art 68(2)(b) is not clearer on the importance of the applicant’s consent or lack thereof in this context, there is no need for such uncertainty. 175 Art 68(2)(c). 176 Art 68(2)(d).

New Cross-Border Requirements  381 irreconcilability between earlier and later parental responsibility agreements on hypothetical point three of the agreements will stop the recognition or enforcement of the earlier authentic instrument in favour of point three of the later agreement which, given the irreconcilability, will prevail on point three; an irreconcilability on point three will not however prevent recognition and enforcement of the other parts of the agreement contained in the incoming foreign a­ uthentic instrument if there is no other such qualifying irreconcilability between the earlier parental responsibility agreement and the provisions of the later parental responsibility agreement.

G.  The Effect of the Best Interests of the Child on Recognition and Enforcement The third paragraph of Article 68 concerns the recurring difficulty of how to accommodate the need to hear children capable of forming their own views on matters of parental responsibility but does so in the context of parental responsibility agreements included in Section 4 authentic instruments or agreements. The third paragraph of Article 68 differs from paragraphs one and two because it is applied on a discretionary basis by the Member State of enforcement. Recital 71 clarifies that in this context there is no obligation ‘to provide the child with the opportunity to express his or her views under this Regulation’, and then continues that the child retains the right to express his or her views ‘under Article 24 of the Charter and in light of Article 12 of the UN Convention of the Rights of the Child as implemented by national law and procedure’. The Member State of enforcement may therefore decide whether to refuse to recognise or enforce an otherwise unobjectionable presented foreign authentic instrument or agreement if: a) the child was capable of forming his own views at the point at which the authentic instrument was drawn-up or registered (or the agreement was registered); and, b) the said child was not afforded an opportunity to express those views in relation to the authentic instrument that is now presented for recognition or enforcement. If (a) and (b) are both made out, the discretion to refuse to recognise or enforce becomes operative and may, subject to the extent of its domestic laws and international obligations, be exercised in the Member State of enforcement. Before the exercise of the discretion is considered, a few points concerning (a) and (b) must be addressed. First, the language of Article 68(3) makes plain that the relevant datum point is when the authentic instrument was drawn-up or registered: if the child was not then capable of forming his own views, Article 68(3) is not available to the Member State of enforcement. For the limited purposes of

382  The Brussels IIa Regulation Article 68(3) it is also not available if the child who was incompetent at the specified datum point has now become competent at the point of applications concerning recognition or enforceability: unless the child possesses the capacity at the right datum point, Article 68(3) cannot be applied to potentially refuse the recognition or enforcement of the incoming foreign authentic instrument concerning parental responsibility.177 Second, the right to express one’s views does not equate with a right for those views to prevail over the views of the other parties to the parental responsibility agreement. For the limited Article 68(3) purposes it appears to suffice if the views of the competent child were sought and considered prior to the drawing-up or registering of the authentic instrument. If however, at the time when the parental responsibility agreement was being drawn-up or registered as an authentic instrument, the views of a competent child were either ignored or sought but not then considered, the Article 68(3) discretion becomes operative. Article 68(3) is applied on a discretionary basis as in this context there can be no hard and fast rule. Article 68(3) allows each case to concern its own factual matrix and to allow significant objections or views of the competent child to be included in that matrix in relation to cross-border legal effects. As Recital 71 indicates that the legislators did not intend that Article 68(3) discretion (when operative) should lead to an automatic refusal of recognition or enforcement; the question of how this discretion should be exercised in the atypical context of authentic instruments and agreements therefore arises. Of course, local laws and international provisions can be consulted for general assistance, and the Regulation itself provides some indications of what not to do in the admittedly different context of Recital 57. Thus, it is not the role of the authorities in the enforcement venue to attempt to police the way that the child is afforded the right to be heard in the Member State of origin by refusing recognition simply because of differences between the accommodation of this right in each venue. Nor is recognition to be refused solely because of a failure to hear the child. Further, Recital 57 also suggests that there are certain proceedings (eg concerning the property of the child, or where there is urgency) when there is no need to hear the child at all. It is suggested that the circumstances in which the discretion to refuse recognition or enforcement via Article 68(3) should apply only when the failure to seek and consider the views of the competent child has led to the presentation of a parental responsibility agreement that unreasonably and materially runs ­counter to those wishes and/or is contrary to the physical or material interests or well-being of the child (or his representative) who, it appears to follow, must be afforded the locus standi and procedural opportunities to raise and establish these issues in relation to the foreign parental responsibility agreement within the targeted Member State of enforcement.

177 This does not mean that the rights of the child to be heard are irrelevant in a wider sense and still less does it absolve the Member State of enforcement from making the required endeavours to comply with the rights of a child who now is capable of forming and expressing his own views.

Conclusion  383

H. Procedures Due to considerations of space, a detailed account of the procedures by which the recognition and enforcement of authentic instruments are to be pursued under the recast Regulation is not provided here. Article 65(1) of the recast directs that Section 1 of Chapter IV should, save where Section 4 of the same Chapter provides otherwise, be applied to allow the recognition of qualifying authentic instruments and agreements on legal separation and divorce. Article 65(2) directs that Sections 1 and 3 of Chapter IV should, save where Section 4 of the same Chapter provides otherwise, be applied to allow the recognition and enforcement of qualifying authentic instruments and agreements concerning matters of ­parental responsibility.

V. Conclusion The authentic instruments that feature in the different Brussels II legislative instruments have developed considerably within the legislative instruments from the time in the 1990s when their entire deletion from the draft Brussels II Convention was contemplated: they have been accorded a distinct status by the Brussels IIa Regulation of 2003 and, as demonstrated during the recent recasting exercise by which Regulation 2019/1111 was achieved, have continued to develop as domestic legal institutions by which certain non-contentious forms of divorce or parental responsibility agreements may be given domestic and international effect within the EU. It is therefore paradoxical that the extent of the practical use of such authentic instruments remains unknown and mysterious within the EU. The significance of this empirical deficit may be illustrated by considering that had it not been for the answers presented by the Member States who responded to the Maltese Presidency’s questionnaire in 2017,178 the recasting of the Brussels IIa Regulation would, save for new certificates, probably have left the provisions concerning the cross-border legal effects of authentic instruments (and agreements) in essentially the same form as in the Commission’s 2016 Proposal (itself based on that which had been assumed to suffice at the time when the Brussels II Regulation was converted into the Brussels IIa Regulation). Though the text of the recast Regulation does reflect aspects of the trend in certain Member States to try new ‘non-contentious’ means to domestically effect consensual divorce or parental responsibility agreements via authentic instruments (and agreements), the fact that it just as easily might not have done so not only indicates a basic difficulty of understanding the operation of non-contentious



178 Note

7979/1/17 Rev 1 of 5 April 2017.

384  The Brussels IIa Regulation legal institutions but reinforces the utility of possessing empirical knowledge of the varied and different domestic legal institutions that one would r­ egulate with EU private international law. Defining the essential characteristics of ­authentic instruments in abstracted outline in an EU Regulation does not thereby unify the domestic variants that constitute that widely-drawn class; nor does it prevent the evolution of different domestic uses for those authentic instruments over the medium or long term across the Member States that will thereafter exploit the potentialities of the cross-border recognition and enforcement provided by EU private international law in a manner not intended or foreseen by those who drafted the EU law.

8 Succession Regulation, Matrimonial Property Regulation, and Registered Partnership Property Regulation I. Introduction This final chapter concerns the authentic instrument provisions of three EU private international law Regulations, each of which feature two articles that equip an authentic instrument falling within the respective material and temporal scope of the Regulation with two different forms of cross-border legal efficacy: the first is via the familiar legal concept of extending enforcement across borders; the second is via a novel legal concept of cross-border ‘acceptance’ intended to allow the evidential force of the instrumentum of the incoming authentic instrument to be transmitted to the Member State of enforcement. The first of the three Regulations concerns succession, the second matrimonial property and the third property arrangements similar to those of the second but arising in the context of a ‘registered partnership’ rather than a marriage.1 The three Regulations do not (and never did) apply in the UK but nor do they apply in all the other EU Member States. Indeed Member State participation in the matrimonial property and registered partnership property Regulations, unlike many of the post-Maastricht Treaty Regulations considered thus far, extends beyond the non-participation of Denmark, Ireland and the UK. The UK, Ireland and Denmark are not party to the Succession Regulation which includes the other 25 EU Member States. As well as excluding the UK, Denmark and Ireland, the Matrimonial Property and Registered Partnership Regulations, which

1 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2012] OJ L 201, 27.7.2012, p 107; Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2016] OJ L 183, 8.7.2016, p 1; and, Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships OJ L 183, 8.7.2016, p 30.

386  Succession, and Property Regulations proceeded by Enhanced Cooperation, also excluded seven other Member States; thus, only 182 Member States took part in the second and third Regulations. The three Regulations each pertain to an aspect of property law and in one sense therein lies the rub. Property law has traditionally been an area that, if it has been regulated at all by EU private international law, has been regulated carefully and negatively to avoid disturbing third party rights and other existing domestic arrangements concerning the holding, charging or transferring property (­including avoiding the knock-on disturbance of registers and registration procedures for registered property).3 As each of the three property law related Regulations is what is known as a triple Regulation (covering jurisdiction, applicable law and ‘enforcement’) each possesses a potential to compel the cross-border interaction of previously isolated property law subjects and concepts (and their potentially conflicting registration requirements) across Member State legal systems. Such background practical issues provided part of the context for the difficulties that would emerge during the long gestation and drafting of these Regulations, particularly concerning what was originally, and misleadingly, called the cross-border ‘recognition’ of their respective authentic instruments that now is more accurately described as the cross-border ‘acceptance’ of such authentic instruments. The potential for undesirable interactions with property concepts and rights emerged from the 2009 Commission Proposal for the Succession Regulation. For authentic instruments this proposal initially included cross-border recognition and enforcement provisions for authentic instruments. This novel recognition concept was part of a proposal and draft Regulation text that both originated from the EU’s francophone legal block and that effectively proposed to extend a modified version of that which was assumed to work within the francophone block to the rest of the EU. For some of those outside the francophone block this extension of ‘recognition’ was alarming as it could be understood to require, inter alia, the automatic exequatur-free recognition of foreign notarial authentic instruments drawn up in a Member State of origin, with no control of international jurisdiction or litispendence, concerning matters of succession that would affect existing property rights and registrations in the Member State of enforcement in an unpredictable manner that could not be controlled from that forum other than via a public policy ­exception that, in the absence of a suitable exequatur stage for this ‘recognition’, would be difficult to apply. Similar general observations apply to the two other Regulations considered in this chapter: each originated from a proposal inspired by the francophone block, and their negotiation on the topic of authentic instruments was also initially d ­ ifficult for reasons similar to those ongoing during the long-running

2 Estonia has however indicated that it wishes to participate in each. 3 In the context of civil and commercial matters consider the deference to property and its associated registration demonstrated in the Brussels I instruments under the heading Exclusive Jurisdiction since Art 16 of the Brussels Convention of 1968.

Introduction  387 and partially parallel attempts to draft the Succession Regulation. As initial negotiations concerning matrimonial property and registered partnerships also encountered difficulties with the proposed recognition of authentic instruments, it was proposed simplify these discussions. One sensible route to simplification would have been to withdraw the novel recognition idea and to replace it with a different one (eg a variation on the court or notary issued certificates proposed for cross-border purposes in the Dörner/Lagarde Succession Study commissioned by the Commission from the Deutsches Notarinstitut in 2002)4 this did not however occur. Instead the French delegation proposed to lessen the troubled joint drafting process concerning authentic instruments for the second and third Regulations by suggesting that discussions on this matter be halted and that the authentic instrument provisions for the second and third Regulations should be derived later from that which would emerge concerning authentic instruments from the negotiations of the Succession Regulation. Whether as an example of chutzpah or negotiating skill this manoeuvre must command admiration. The far from trouble-free authentic instrument provisions of what was to become the 2012 Succession Regulation were thus, for better or for worse, nominated for eventual use (once they themselves had been drafted to a final form) as models for the authentic instrument provisions that were to be included in the second and third Regulations.5 Once the authentic instrument provisions of the Succession Regulation were finalised they were indeed so used: thus, concerning authentic instruments the three Regulations share closely related Recital texts, essentially the same definitions and, but for different numbering and internal cross-references, the same article texts concerning their cross-border acceptance and /or enforcement. As none of the Regulations involved the UK, they did not and do not apply in any UK legal system as a directly applicable EU law instrument. Though each Regulation could still potentially apply to a UK citizen outside the UK,6 for the three UK legal systems their relevance is indirect and partial at best. A court in a UK legal system (after applying its own private international law and procedures) could conclude that the relevant applicable law is that of an EU Member State bound by the Regulation, and then, to the extent permitted by the relevant UK legal system, could attempt to proceed as would the bound Member State, eg by using the Regulation to determine the applicable law on the relevant legal issue(s)

4 Étude pour la Commission des Communautés Européennes Direction générale Justice et Affaires intérieures, Étude de droit comparé sur les règles de conflits de juridictions et de conflits de lois relatives aux testaments et successions dans les Etats membres de l’Union Européenne, by Heinrich Dörner and Paul Lagarde, 18 septembre/8 novembre 2002, https://ec.europa.eu/civiljustice/publications/ publications_en.htm. 5 See draft text 18965/11 of 22 Dec 2011 at 23 fn1 also comments from French delegation 17792/11 ADD8 of 21 December 2011 at 2. 6 eg if the UK citizen the heir under an Italian aunt’s German will, or if they take part in a matrimonial property agreement in France and would later dispute its implications with a spouse who is now resident in the Netherlands.

388  Succession, and Property Regulations before applying that law in accordance with the application of such substantive law on the issues identified by the parties to the domestic litigation.7 As to why the UK was not involved in the final Succession Regulation, it seems that after opting-out in late 2009, despite the UK’s continuing involvement in drafting discussions, it proved too difficult to reconcile fundamentally different civil law and common law succession concepts (including entirely different notions of how successions operate and are administered) via mutually acceptable private international law rules. Resolving these famously intractable difficulties promised further substantial delays to an already protracted and complicated European endeavour. Perhaps understandably, the EU Commission appears to have concluded8 that the effort of trying to accommodate the UK in the hope (rather than the certainty) that it would ever opt back in to participate in the final Regulation was disproportionate to the effort required and risked the advantages it expected to flow from achieving a Succession Regulation for the 25 Member States that assuredly would participate. From the point when these ideas took hold in the Commission, they became self-fulfilling; the UK and Ireland had each opted-out and did not opt back in. As Denmark could not participate, the Succession Regulation emerged only applying as a matter of directly applicable EU private international law in the legal systems of the remaining 25 EU Member States. As for the later Matrimonial Property and Registered Partnership Regulations, the UK was also involved in the negotiations, but the outcomes of the Succession Regulation concerning UK and Irish involvement and the recurring unresolved difficulties of reconciling different property and ‘matrimonial’ concepts (and their procedural implications) remained difficult in this context and such difficulties had a greater legal effect because Article 81(3) TFEU requires a unanimity that the Council, despite prodigious efforts, never achieved. The UK never opted-in and it was not alone; inter alios, Poland and Hungary were not persuaded and after a year of seeking consensus it was plain by 3 December 2015 that unanimity was not to be found. Leaving technical difficulties on one side there were complications arising for all Member States arising from views that emerged in general discussions from 2011 onwards, concerning differing views between certain Member States concerning marriage and partnerships and how each might interact with homosexuality to oblige a Member State with particular views (liberal or conservative) of that which its laws regarded as domestically possible in connection with homosexuality to then accommodate (or to not accommodate) foreign matrimonial or registered partnership property agreements involving same-sex couples. These difficulties were reminiscent of those that had surfaced during the drafting of the Rome III Regulation9 and had led to it having to be established by Enhanced 7 As contentious litigation on succession matters is as unusual in the UK as elsewhere it will rarely be the case that a court will be seised with a case that even theoretically presents it with this opportunity. 8 This result has, anecdotally, been attributed to unhelpful comments from a UK Minister to a senior EU Commission official. 9 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L 343, 29.12.2010, 10.

Authentic Instruments in the Succession Regulation  389 Cooperation; eventually this fate befell the matrimonial property and registered partnership Regulations. At present, 18 EU Member States apply the two property Regulations directly:10 Estonia has indicated that it will also participate with what were then the remaining nine EU Member States. Since the UK’s departure the nine have become eight Member States (Ireland, Denmark, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) that do not presently apply either the Matrimonial Property or the Registered Partnership Regulations. The final general similarity presently worthy of mention is that each Regulation is relatively new and still has a somewhat unclear potential to operate the shared and somewhat unclear authentic instrument provisions pertaining to ‘acceptance’. The Succession Regulation has been fully operative since 17 August 2015 and the other two Regulations since 29 January 2019. Though cases concerning the interpretation of the Succession Regulation, and the domestic provisions by which it has been implemented, are accumulating rapidly with the CJEU,11 it will be some time before the various academic analyses of the provisions of the Regulations that concern authentic instruments, in particular their ‘acceptance’, can be confirmed with references to authoritative interpretative guidance from the jurisprudence of the CJEU. That said, as the authentic instrument provisions on these issues are almost identical, a determination on a matter concerning an authentic instrument under one Regulation may well be equally relevant for the other two. Section II of this chapter considers the provisions of the Succession Regulation concerning authentic instruments; in section III the equivalent provisions of the Matrimonial Property and Registered Property Regulations, which were copied from the Succession Regulation, are considered albeit briefly.

II.  Authentic Instruments in the Succession Regulation A.  An Overview of the Drafting Process The Commission’s legislative proposal for the Succession Regulation was published in 2009. It had long been debated12 and the Proposal was preceded by studies,13 a 2005 Green Paper14 and a consultation exercise. Particularly in relation to 10 Belgium, Bulgaria, Cyprus, Czechia, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, Netherlands, Austria, Portugal, Slovenia, Finland and Sweden took part in the original enhanced cooperation, Estonia has since indicated it will join. 11 See the rapidly growing list of cases at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CEL EX%3A32012R0650. 12 See ch 7, n 25. Jörg Pirrung, ‘Unification du droit en matière familiale: la Convention de l’Union européenne sur la reconnaissance des divorces et la question de nouveaux travaux d’Unidroit’ (1998) 3(2–3) Uniform Law Review. 13 See n 4. 14 COM (2005) 65 in particular, ‘4.2 In certain Member States, notaries and other authorities prepare deeds to determine the order of succession and administer the estate. Provision must be made for the recognition and enforcement of such deeds’ at 9.

390  Succession, and Property Regulations authentic instruments and their ‘recognition’ the 2009 Proposal and draft text were based predominantly on the law and domestic notarial succession practices of the francophone countries (which routinely provided ‘models’ for the 2009 Proposal and aspects of its draft text) by each featuring an unusually strong role for notarial authentic instruments issued in connection with the post mortem ‘administration’ of successions.15 In itself this was no bad thing as a starting position. What would however continue to prove to be unfortunate was that an assumptionled approach to post mortem notarial practice in successions derived from the law of just a few Member States did not merely inspire but became linked (it is suggested erroneously) with a wrong-headed and spurious interpretation of the Mutual Recognition16 concept that was used (and allowed to be used) to resist material and sensible objections to the cross-border extension of a misleading and dysfunctional recognition concept for succession authentic instruments.17 Until February 2011 a certain obduracy on the need for the proposed cross-border recognition of succession authentic instruments endured while assumption was preferred to data concerning the use of succession authentic instruments across the EU and their role in Member State legal systems: in February 2011 however the answers to a series of belatedly asked basic questions from the previous Presidency concerning authentic instruments and their use in domestic successions were supplied by the Notariats of each relevant Member State and accompanied by a summary from the Council of the Notariats of the European Union (CNUE).18 Back in 2009 however the Commission had claimed (somewhat misleadingly) at paragraph 4.5 of its Proposal that authentic instruments were practically important in succession matters, then stated (contentiously) that the Regulation should ‘ensure their recognition to allow their free movement’.19 It is worth clarifying that the first statement is innocently misleading: in six of the 28 Member States there are no succession authentic instruments at all. The second statement was however simply inaccurate and does not follow even if the first statement is understood to only include the 22 Member States that do allow some use of authentic instruments in succession. The inaccuracy is due to a fact relevant to both statements which is that authentic instruments are not used in the same way for successions 15 As well as France, Belgium and Luxembourg it seems that reference was also made to Italian Law. 16 The Cassis de Dijon case (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649) is discussed and distinguished below in this section. 17 It also was used to justify an unnecessary parallelism between authentic instruments and the European Certificate of Succession (clarified not to itself be an authentic instrument) that by boosting the former has had the regrettable consequence of somewhat weakening the (accordingly optional) latter. 18 The drafters of the Regulation had asked basic questions of the CNUE (a private organisation that lobbies for its members and attempts to represent the Notarial profession in the EU) which had circulated them to its members and then in 2011 presented the answers in summarised and specific form via documents 6421/11 and 6421/11 ADD 1 both of 14 February 2011. At page 7 of its summarised response the CNUE expressed its surprise that such basic issues concerning authentic instruments and their use were only now being addressed in the course of drafting a Succession Regulation proposed in 2009. 19 2009 Commission Proposal at 7.

Authentic Instruments in the Succession Regulation  391 across the 22 Member States which employ them.20 As authentic instruments are not used in the same way across the EU22 they lack the uniform level of practical importance for the operation of domestic succession procedures that might (erroneously) be concluded from considering predominantly the notarial authentic instrument and its role in French, Belgian or Luxembourgish succession practices. As became plain in the course of carrying out a comparative investigation of the evidential effects of authentic instruments in the 25 Member States bound by the Succession Regulation,21 even for the Member States that do feature succession authentic instruments their significance in a matter of cross-border succession may be quite abstract and may reflect mainly their status as public documents rather than as authentic instruments, ie wills and other succession related inter vivos documents drawn-up by notaries (or by other comparable officials) circulate as public documents: the fact that they might also be authentic instruments is not particularly significant if they can circulate across borders as public documents.22 Equally, though domestic succession practice commonly makes use of official determinations associated with the post mortem administration of the deceased’s estate (whether issued by the courts23 or by a notary (whether or not acting as a court’s succession representative in a given case)) that thereafter are public documents/authentic instruments, the fact that they are authentic instruments does not as such routinely pose any great relevance for their subsequent cross-border circulation as public documents. Whether classified generally as a public document or classified more narrowly as an authentic instrument (with associated public document possibilities and evidential effects) what was required to allow these documents to engage in an improved cross-border circulation within the EU was, in one view, simply the Regulation’s uncontroversial intra-EU25 abolition of domestic legalisation and Apostille requirements by Article 74,24 plus the transmission of evidentiary effects 20 P Beaumont, J Fitchen and J Holliday, ‘The Evidentiary Effects of Authentic Acts in the Member States of the European Union, in the Context of Successions’ (2016) JURI, PE 556.935 www.europarl.europa.eu/RegData/etudes/STUD/2016/556935/IPOL_STU%282016%29556935_EN.pdf, hereafter 2016 EP Study. 21 ibid. 22 During the 2016 EP Study (n 20) it was sometimes necessary to remind even the most distinguished notary participants that certain wills were also authentic instruments. Though the participants clearly already knew this, they tended to conceptualise the cross-border possibilities of the will as being due to its status as a public document rather than being due to its then somewhat novel status as an intra-EU authentic instrument. 23 A notary can act as a court in certain circumstances under the Regulation, Art 3(2) and issue Art 3(1)(g) decisions rather than Art 3(1)(i) authentic instruments. Alternatively, a notary may act on an appointment on behalf of the court, ie by being appointed by the court to act in relation to a specific succession. 24 Art 74 Regulation abolishes such legalisation, and the need for an intra-EU apostille among the participating Member States. One consequence of the undefined nature of the proposed ‘recognition’ was that it led to confusion in relation to whether it also included the legalisation and Apostille requirements: K Lechner, ‘Die Entwicklung der Erbrechtsverordnung – Eine Einfürung zum Gesetzgebungsverfaren’ in A Dutta and S Herrler (eds), Die Europäische Erbsrechtverordnung (Munich, CH Beck, 2014) 5 at 13.

392  Succession, and Property Regulations from authentic instruments via a more sophisticated appreciation of the nature of cross-border enforcement as it concerns authentic instruments as opposed to judgments (also potentially reflected by allowing linkage with the European Certificate of Succession).25 It was thus neither obvious nor logical to conclude in 2009 that the ­cross-border recognition of authentic instruments in matters of succession was required to allow the cross-border circulation of all authentic instruments associated with successions in accordance with the Commission’s 2009 Proposal or its draft Recital 26 and Article 34 provisions. The constituency that did however require the Regulation to ensure the crossborder recognition of succession authentic instruments was that represented by the notarial professions of those predominantly francophone Member States that had entrusted their notaries with an overt and independently notarial26 role in the post mortem operation of successions which involved the issuing of a notarial authentic instrument (eg an acte de notoriété) that allowed the heir and other beneficiaries to prove their entitlement and to deal with the estate. Rather than accept that the evidentiary effects associated with this minority domestic practice should be subsumed within a European Certificate of Succession, the proposal instead sought to extend and empower notarial authentic instruments with an independent potential to extend their domestic legal effects across Member State borders; hence draft Article 34 was argued to require the cross-border recognition of incoming succession authentic instruments and in a manner that rivalled the proposed European Certificate of Succession. Draft Article 34 provided that: Authentic instruments formally drawn up or registered in a Member State shall be recognised in the other Member States, except where the validity of these instruments is contested in accordance with the procedures provided for in the home Member State and provided that such recognition is not contrary to public policy in the Member State addressed.27

Different insights into the intended meanings of the undefined term ‘recognition’ in draft Article 34 were supplied by draft Recital 2628 and the remainder of paragraph 4.5 of the 2009 Proposal’s explanatory memorandum. Draft Recital 26 justified the recognition (and enforcement) of authentic ­instruments due to the diversity of Member State succession laws. It offered the 25 The meaning of cross-border enforcement for succession authentic instruments is discussed below in s II.K. 26 The distinction is offered not only because of the possibility in certain Member States of the notary possessing certain judicial functions, eg as in Hungary see draft Recital 22, but also to distinguish the circumstance where the notary acts in a succession matter on an appointment by the court to a given role. In each of these cases the notary is not carrying out an independently notarial function – when he acts as a judge he is bound by the rules governing judicial activities and he is not acting as a notary; when he acts for the court he is also not carrying out an independent notarial function. 27 2009 COM (2009) 154 final p 24. 28 ibid, p 12.

Authentic Instruments in the Succession Regulation  393 welcome clarification that the ‘recognition’ of authentic instruments could not be treated in the same way as the recognition of a court decision, but otherwise explained that ‘recognition’ meant that the authentic instruments would benefit from, ‘the same evidentiary effect with regard to their contents and the same effects as in their country of origin, as well as a presumption of validity which can be eliminated if they are contested’.29 The second sentence of paragraph 4.5 of the Commission’s proposal concerning authentic instruments had however already stated that: This recognition means that they will enjoy the same full and complete evidentiary effect in respect of the contents of the recorded instruments and the facts contained therein as that of national authentic instruments or on the same basis as in their country of origin, a presumption of authenticity, and an enforceable nature within the limits set by this Regulation.30

This statement is unhelpfully ambiguous: it also interacts with other ambiguities in draft Recital 26 and in the undefined recognition properties of draft Article 3431 to suggest a connection between the proposed Article 34 recognition and Article 35 enforcement that though wholly appropriate for judgments (ie no enforcement without prior recognition) is inappropriate in the context of succession authentic instruments32 as it appears to require a cross-border recognition of not only the instrumentum of the incoming succession authentic instrument but also of its contents/negotium. To appreciate the significance of this extension it must be remembered that the cross-border effects of authentic instruments in EU private international law Regulations only apply to the instrumentum of an authentic instrument: not to its negotium. In a cross-border context the negotium or material content of an authentic instrument is assessed by a court with jurisdiction applying the relevant conflict of laws principles that determine the applicable law for the type of juridical act that the authentic instrument purports to contain; this law then determines the material validity of the juridical act. To automate an undefined recognition concept that is understood to also include the negotium of authentic instruments would, in the context of succession, have had the startling effects of: a) allowing the use of an authentic instrument to disapply the operation of the conflict of laws rules of the enforcement venue as they would otherwise have concerned the supposed material content of the authentic instrument; and, b) applying the law to its supposed material content as ostensibly ‘determined’ by the foreign notary (or other foreign official) who drew-up the authentic instrument at the instance of his client(s); and,

29 Draft Art 26. 30 My italics. 31 The draft Regulation did not feature a definition of the recognition of authentic instruments. 32 Unfortunately, this structural defect was not wholly removed from the final Regulation by the re-drafting of Art 34 to feature acceptance instead of recognition: hence it remains necessary to indicate that to use final Art 60 does not imply a need to first seek and receive Art 59 acceptance.

394  Succession, and Property Regulations c) requiring that the contents of a non-contentious authentic instrument lacking any res judicata effect be treated in the enforcement venue with greater deference than an incoming contentious and determinative judgment (unless and until the authentic instrument should be challenged in the Member State of origin). Naturally such implications and the muddling of concepts in the Proposal and draft text provoked opposition from many Member State delegations (including those from the francophone States).33 In January 2010 the German delegation offered three thought-provoking scenarios of which the third is now reproduced to indicate the potential for mischief feared to be inherent in Article 34’s authentic instrument recognition. A German widower habitually resident in Germany dies. He had two children A and B with his wife. The children live in France. In addition, he has a daughter C with a woman to whom he was not married. C is living in Germany. A French notary lays down an ‘acte de notoriété’, that A and B are the heirs, as he is not aware of the existence of C. C asks the German courts for a certificate declaring that A, B and C are heirs of their father (as would be the consequence under the applicable German law). Does C have to ‘contest’ the validity of the acte de notoriété? Do the German courts have to ‘recognise’ this authentic instrument? Would a German bank be obliged to consider A and B to be the heirs, if it is presented with the acte de notoriété? Does a German court responsible for the land registry (the Grundbuchamt) have to register A and B as heirs in the land registry, if they present the document to the Grundbuchamt?34

Various authoritative and well-informed commentators criticised draft Article 34 and called for the concept of recognition for succession authentic instruments to be deleted from the proposal.35 Such calls were however opposed36 by other 33 Comments from the German Delegation, Document 5797/10 of 29 January 2010 at 6. A series of comments of a critical nature concerning draft Art 34 were received in relation to document number 7704/10 and via Addendums thereunto. See comments from French Delegation Document 7704/10 of 30 March 2010, 4–7. Comments from the Italian Delegation Document 7704/10 of 8 April 2010, 3. Comments from Finnish Delegation Document 7704/10 ADD1 of 22 March 2010, 2. Comments from Slovak Delegation Document 7704/10 ADD3 of 23 March 2010, 4. Comments from German Delegation Document 7704/10 ADD11 of 31 March 2010, 4–5. Comments from Austrian Delegation Document 7704/10 ADD4 of 25 March 2010, 2–5 etc. 34 Scenario 3 from Comments from the German Delegation, Document 5797/10 of 29 January 2010 at 6. 35 The Max Planck Institute (Hamburg) recommended deletion; ‘Comments On The European Commission’s Proposal For A Regulation Of The European Parliament And Of The European Council On Jurisdiction, Applicable Law, Recognition And Enforcement Of Decisions And Authentic Instruments In Matters Of Succession And The Creation Of A European Certificate Of Succession’ (2010) Rabels Zeitschrift 522, 669–71. The succession proposal was critically considered with particular reference to the proposed ‘recognition’ of authentic instruments by M Kohler and M Buschbaum, ‘Die “Anerkennung” öffentlicher Urkunden? – Kritisches Gedanken über einen zweifelhaften Ansaz in der EU-Kollisionsrechtsverienheitlichung’ (2010) Praxis des Internationalen Privat- und Verfahrensrechts 313; H Mansel, K Thorn and R Wagner, ‘Europäusches Kollisionsrecht 2010: Verstärkte Zusammenarbeit als Motor der Vereinheitlichung?’ (2011) Praxis des Internationalen Privatund Verfahrensrechts 1 at 4–5. Deletion was also recommended by B Hess, E Jayme and T Pfeiffer, ‘Stellungnahme zum Vorschlag für eine Europäische Erbrechtsverordnung Version 2009/157’ (COD) vom 16.1.2012, www.europarl.europa.eu/thinktank/de/document.html?reference=IPOL-JURI_ NT%282012%29462430, at 49, para 6.2.2.4. 36 C Nourissat, ‘La Reconnaissance des Actes Authetiques’, paper given on 15 October 2010 to a conference on Successions transfrontalières au sein de l’Union européenne organised by the

Authentic Instruments in the Succession Regulation  395 authoritative and predominantly francophone commentators who sought to defend Article 34 recognition, by suggesting that post-Unibank the mutual recognition of authentic instruments was somehow a logical consequence of the effect of the Cassis de Dijon mutual recognition principle upon the undefined notion of mutual trust (which was presumably to be regarded as a fifth freedom and equated with the EU’s rather better defined four Common Market freedoms).37 It was also maintained that the critics had not understood the necessity for such an authentic instrument recognition concept, or were, mistakenly, ascribing meanings to recognition, which as a polysemous concept,38 it did not need to include in this context (or for these purposes) and that thus should not be understood to have been intended to be included in either the proposal or in the draft text.39 To their credit, those within the mainly francophone response did also try to explain their reasoning, conceded certain difficulties with the draft text and suggested the addition of some 190 words of clarification to draft Recital 26 while also offering a re-drafted and clearer version the recognition that they wished to see for draft Article 34. Disputes over the meaning and nature of recognition in private international law may be surprising to those not familiar with the earlier French academic writing concerning cross-border circulation of public documents in the EU and its potential significance for recognition concepts in EU law.40 The developments leading Notaires d’Europe and the European Commission available from www.notaries-of-europe.eu/index. php?pageID=7777. At 4 Nourissat connects the proposed recognition of authentic instruments with the EU’s Cassis de Dijon mutual recognition principle: he also introduces his version of a polysemic explanation of recognition. 37 See also the advice of P Pasqualis (an Italian Notary) to the European Parliament, ‘The movement of notarial instruments in the European legal area’ PE 425.656 October 2010 www.europarl.europa. eu>2010>IPOL_JURI_NT(2010)425656_EN, at 11 para 3 equating Cassis-style mutual recognition for goods with mutual trust and the circulation of judgments but clarifying that a subtler form of ‘recognition’ is required for authentic instruments and suggesting that the Succession Regulation represents the chance to take this course. Pasqualis also summarises the contemporaneous but unsuccessful moves towards establishing a European authentic instrument. 38 ibid 5–6 explaining what is not meant by the recognition of an authentic instrument (but admitting that Recital 26 and Art 34 needed re-drafting and providing new texts at 11–13). 39 C Nourissat, P Callé, P Pasqualis and P Wautelet, ‘Pour la reconnaissance des actes authetiques au sein de l’espace de liberté, de securité se de justice’ (2012) 68 Petites affiches 6 generally attempting to refute the MPI suggestion of deletion and making the case for an EU intervention to promote authentic instrument circulation. Nourissat’s polysemic observation is made again and the argument in favour of a more tightly defined form of authentic instrument recognition is advanced and supported with reference to French doctrine; with respect his argument would have been stronger had it extended beyond French borders. Nourissat’s earlier suggested amendments to clarify the recognition concept in Recital 26 and Art 34 are also repeated at 14. 40 The most radical suggestions came from C Pamboukis who suggested at a level of some abstraction (ie concerning a very wide notion of public documents) that conflict of laws principles might be dispensed with in favour of effectiveness criteria, particularly in the context of the ‘recognition’ of civil status issues: C Pamboukis, L’acte public étranger en droit international privé 1st edn (Paris, LGDJ, 1993) and C Pamboukis, ‘L’acte quasi public en droit international privé’ (1993) Revue critique de droit international privé 565. Also see L G Radicati Di Brozolo, ‘L’Influence Sur Les Conflits De Lois Des Principes De Droit Communautaire En Matière De Liberté De Circulation’ (1993) Revue critique de droit international privé 401; M Fallon and J Meeusen, ‘Private International Law In The European Union And The Exception Of Mutual Recognition’ (2002) Yearbook Of Private International Law 37; P Lagarde,

396  Succession, and Property Regulations up to the 2009 Succession Proposal re-inspired Pamboukis to develop further his ideas concerning the metamorphosis of recognition to apply to foreign authentic instruments on a unilateral basis if a public official (eg a notary) had drawn it up.41 Essentially Pamboukis argued in 2008 that the involvement of the public official in the creation of a public document was equivalent for these purposes to the involvement of a judge in the creation of a judgment.42 This argument however assumes an equivalence between authentic instruments and notarial practice that the facts cannot support: it is impossible to establish a European equivalence when not only authentic instruments but also the notarial professions are each subject to such heterogenous domestic regulation. Despite these comments it is fair to say that in the run-up to the publication of the 2009 Proposal the idea of a novel form of cross-border recognition for notarial authentic instruments and other documents associated with non-contentious practice was, like aspects of the mutual recognition concept, under discussion in relation to EU private international law. These discussions frequently proceeded from an unfortunately partisan and inaccurate comparative study of authentic instruments commissioned by the European Parliament which was published in 2008 and from a similarly unsatisfactory and flawed proposal, also from the European Parliament in 2008, inviting the Commission to establish a European Authentic Act.43 As a muddled notion of mutual recognition was woven through these unfortunate proposals it is necessary to attempt to disentangle one from the other. Since 1979 mutual recognition has been fundamental to the defence of the effectiveness of the Common Market’s four freedoms, it has however no legal ‘Développements Futurs Du Droit International Privé Dans Une Europe En Voie D’Unification: Quelques Conjectures’ (2004) Rabels Zeitschrift 225; GP Romano, ‘La Bilatéralité Éclipsée Par L’Autorité Développements Récents En Matière D’État Des Personnes’ (2006) Revue critique de droit international privé 457; S Bollée, ‘L’Extension Du Domaine De La Méthode De Reconnaissance Unilatérale’ (2007) Revue critique de droit international privé 307 giving limited and cautious consideration of an authentic instrument at paras 35–36; R Baratta, ‘Problematic Elements of an Implicit Rule Providing for Mutual Recognition of Personal and Family Status in the EC’ (2007) Praxis des Internationalen Privat- und Verfahrensrechts 4; C Kohler, ‘Le Droit De L’Union Européenne Face À La Diversité Culturelle: Tensions Et Solutions’ (2009) Revue Hellenique de Droit International 473. 41 Pamboukis argued that various events in EC private international law were proceeding in a similar direction with regard to recognition, C Pamboukis, ‘La Renaissance-Métamorphose De La Méthode De Reconnaissance’ (2008) Revue critique de droit international priv, 513. 42 Pamboukis (n 41) paras 55–56. This suggestion was criticised by Mansel, Thorn and Wagner (n 35) 1 who pointed out in fn 16 that Pamboukis provides a method but does not elaborate a functioning recognition concept. Pamboukis’ earlier attempts to equate foreign actes publics with foreign judgments had also been criticised by Callé (see P Callé, L’acte public en droit international privé 1st edn (Paris, Economica, 2004) paras 180–96). 43 See Comparative Study on Authentic Instruments – National Provisions of Private Law, Circulation, Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union (United Kingdom, France, Germany, Poland, Romania, Sweden) 14-11-2008 www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL-JURI_ET(2008)408329 and the summary of the strong (and it is submitted valid) criticisms of its many flaws by M Lightowler in WH Rechberger (ed), Brücken im Europäischen Rechtsraum (Wien, Manz Verlag, 2010) 25–26. Also European Parliament resolution of 18 December 2008 with recommendations to the Commission on the European Authentic Act (2008/2124(INI)) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52008IP0636.

Authentic Instruments in the Succession Regulation  397 relevance to concrete issues of private international law. Indeed the Cassis ­principle is probably best regarded as a faux ami to EU private international law both as a concept and as a procedure. The principle of mutual recognition may be examined analogously by private international law commentators44 or considered in connection with the need to develop undeveloped aspects of European private international law,45 it cannot however be used as a coherent private international law method. True, the Cassis principle may be applied if an EU law is indirectly obstructed by a domestic law in the ‘receiving’ Member State if this domestic law impermissibly obstructs a directly applicable four freedom principle from EU law: in concrete terms however the use of the Cassis principle in a private international law context extends no further than this superficiality. The means of resolution for a Cassis ‘conflict’ (which of course sometimes does not disapply the domestic law that indirectly obstructs one of the four freedoms) differs fundamentally from the mechanisms of EU private international law that determine between EU citizens and for Member States matters such as jurisdiction, priority, applicable law and cross-border recognition and or enforcement effects in connection with aspects of litigation or non-contentious practice with a cross-border component. Cassis is merely applied to disapply any indirect restrictions imposed by a Member State legal system that cannot be excepted from this outcome in relation to a valid mandatory interest of the State that is applies in a proportionate manner. Even in relation to the circulation of notarial authentic instruments, EU private international law does not work like this: eg it does not allow the use of antisuit injunctions between the parties or in relations between the courts in some circumstances when the Regulation is operative. The authentic instrument derives additional cross-border potential from the provisions of EU private international law that allow it to circulate according to the specific Regulations between the Member States: EU private international law does not create the authentic instrument, does not confer the authority on a public officer to draw it up, does not establish its probative or executory force and does not regulate it. These matters all relate to the originating legal system, they are not derived from EU private international law, and cannot be transformed or elided by repeated incantations of ‘mutual recognition’ or ‘mutual trust’. Even were the Cassis method not a faux ami for private international law, mutual recognition in a general sense would have to remain inapplicable to

44 eg B Hess, Europäisches Zivilprozessrecht 1st edn (Heidelberg, CF Müller Verlag, 2010) 92 at 94, para 22; M Fallon and J Meeusen, ‘Private International Law In The European Union And The Exception Of Mutual Recognition’ (2002) Yearbook Of Private Internatonal Law 37; H Mansel, ‘Anerkennung Als Grundprinzip Des Europäischen Rechtsraums’ (2006) Rabels Zeitschrift 651. 45 eg in the context of matters of personal status concerning marriages and names, see Pamboukis’ works cited in n 40 and n 41 above, and, K de la Durantaye, ‘Same same but different? Das IPR der Ehe für alle nach Inkrafttreten des Gesetzes zur Umsetzung des Eheöffnungsgesetzes’ [2019] IPRax 2019, 281 and in discussion of ‘name’ cases such as C-353/06 Grunkin and Paul [2008] ECR I-7639.

398  Succession, and Property Regulations domestic civil procedure laws for want of the necessary EU competence to apply it.46 This is demonstrated in the present context as the question of the applicability of the Cassis concept is reduced to the specific question of whether differences between the unharmonised private international laws, conflict of laws rules and civil procedure laws of the Member States (if suggested to obstruct the proposed recognition of authentic instruments) can fall within the Cassis principle at all. It is elementary that the Cassis principle operates in areas of law that belong to the competence of the EU and does so with the effect of preventing domestic measures incapable of justification under its non-exhaustive exception criteria from having an unnecessary indirect legal effect equivalent to an indirect quantitative restriction on the exercise of the relevant EU competence. As the Member States retain competence in areas of law that remain outside the competence of the EU, such as general civil procedure and general evidence law, the Cassis principle cannot apply to such areas of non-competent law, which must surely include draft Succession Regulations.47 Unless it is suggested that by agreeing to discuss the drafting of a new Regulation the participating Member States thereby conceded their sovereign competence over the all the matters that it would eventually concern, it must follow that during the drafting stage of a new Regulation no role is possible for the Cassis principle. Taken together these arguments should dismiss the Cassis principle as legally irrelevant during the drafting stage.48 The difficulty is that this conclusion ignores the political relevance that was unfortunately attached to the Cassis principle of mutual recognition by the Commission during the negotiations. According to the account offered in 2013 by Lechner (the European Parliament’s Rapporteur for the Succession Regulation), though the European Parliament and the Council were soon both effectively of one mind on the nature of the cross-border effects that could be permissible under draft Article 34, discussions involving the Commission were still tough as the Commission was reluctant to abandon what they believed could be the mutual recognition of authentic instruments throughout the EU not only for the

46 The EU principle to be considered in this context should not be mutual recognition but rather non-discrimination on the basis of nationality. 47 Competence concerning particular civil procedure rules is found in Art 81(2) TFEU which allows the adoption of ‘measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: … (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States’ [2010] OJ C 83/78 30.3.2010. Can it be that the legal systems which do not possess authentic instruments need them? and if so, which type(s) of authentic instrument? The scale of the reforms that would be required cannot fit Art 81(2) TFEU. 48 Writing in a different context, Wilderspin and Lewis, have speculated that domestic rules of evidence and civil procedure would, by qualifying as ‘mandatory provisions’ of domestic law and having a ‘proportionate’ effect, be excluded from the operation of the Cassis principle: M Wilderspin and X Lewis, ‘Les Relations Entre Le Droit Communautaire Et Les Règles De Conflits De Lois Des Etats Membres’ (2002) Revue critique de droit international privé 1 which at 31 places private law generally within the ambit of exception from the Cassis principle.

Authentic Instruments in the Succession Regulation  399 Succession Regulation but also for the Matrimonial Property Regulation and the Registered Partnership Property Regulation.49 With respect, it is suggested that even if considered as a political concept, the mutual recognition principle offers no benefits to the cross-border efficacy of authentic instruments. It merely reinforces the different ideas held in the Member States by promising/threatening an outcome that some sought, and others resisted. Defending the indefensible Cassis position left the Commission in a partisan position and unfortunately obstructed deeper analysis of the nature of cross-border enforcement of authentic instruments in EU private international law.

B.  Investigating the Meaning of the Draft Text The Presidency and the delegations debated authentic instrument recognition and what it might mean at various points. In late 2010 the Presidency appeared to suffer misgivings about the role of authentic instruments in the proposal and suggested that perhaps only specific types of succession authentic instruments of which it could be said that their elements of fact and law had been established and that their content also accorded with the applicable law should be capable of cross-border recognition.50 Despite such misgivings Article 34 recognition endured throughout 2010.51 A little after receiving the clarifying February 2011 responses of the CNUE and the different Member State Notariats, the Presidency appears to have stopped routinely referring to the recognition of authentic instruments in those of its documents that are available.52 Indeed, in the course of an eight-page document dated 11 April 2011 titled ‘Authentic Instruments in Matters of Succession’, the word recognition is only used twice; once to introduce and contextualise the discussion (at paragraph 1) and subsequently in paragraph 18 as, ‘“recognition”/“free circulation”’.53 This document was discussed towards the end of April 2011 and by mid-May the Presidency had set in train a process

49 Lechner (n 24) at 12–13. 50 Document 15246/10 of 28 Oct 2010 generally. 51 See text of Art 34 at 39 of document 18096/10 of 22 December 2010 (also mentioning at fn 1 that the CNUE had been asked questions concerning authentic instruments). 52 The European Parliament had tabled various amendments to a similar effect. Amendment 78 of the European Parliament’s Draft Report of 23.2.2011 suggested the deletion of ‘Recognition of …’ from the title of Article 34 and amendment 79 deleted recognition from the text of Art 34 instead substituting ‘circulation’ free of legalisation requirements. Draft Recital 26 had already seen proposals to substitute ‘free movement’ for its use of ‘recognition’ via amendment 16 in European Parliament’s Draft Report of 23.2.2011, www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML &language=EN&reference=PE441.200. In similar vein see proposed amendments 143–44, 161, 222–24 to negate the ‘recognition’ of authentic instruments in PE464.765 of 01/07/2011 and in the draft provisions of the Parliament’s amended Regulation PE483.680 of 27/02/2012 both via https://oeil. secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2009/0157(COD). 53 Document 8448/2011 of 11 April 2011, 6.

400  Succession, and Property Regulations which led to the approval of a set of political guidelines that included authentic instruments and their cross-border acceptance amongst the presented topics of this compromise package.54 In the documents involved in this process, recognition of authentic instruments is absent: the references in the text body are instead to the cross-border acceptance of authentic instruments in the Member State of enforcement. By 6 June 2011 these political guidelines had received the necessary approvals and thereafter the amendments and clarifications necessary to explain how the new cross-border possibility of accepting an incoming succession authentic instrument should work began to be integrated into the draft Succession Regulation. As far as the authentic instrument provisions of the Succession Regulation were concerned, this June 2011 political agreement on the substitution of the cross-border acceptance concept for the earlier recognition concept marked the end of the recognition controversy. For authentic instruments there would be some redrafting, a renumbering exercise and new Recitals, but the essential form of the textual provisions for authentic instruments for the Succession Regulation had been agreed and by November 2011 it was drafted in close to final form.55 Thus was the ‘deadlock’ on recognition as a part of draft Article 34 notionally resolved to allow the amended authentic instrument provisions of the Succession Regulation, the Matrimonial Property Regulation and the Registered Partnership Property Regulation to be agreed. What, due to the focus on draft Article 34, had not however occurred was a proper debate on the wider implications of the cross-border enforcement of authentic instruments within European Union private international law provisions via draft Article 35; it is suggested that this was unfortunate as it wasted an opportunity to resolve the difficulties inherent in attempting to conceptualise the cross-border enforcement of authentic instruments in terms derived from the cross-border enforcement of judgments. Though the Succession Regulation was finalised the same could not be said of its standard forms. The Succession Regulation’s standard forms were intended to allow its authentic instruments (and other titles and certificates) to be attested in the Member State of origin, if the party making the presentation so wished, to assist him in presenting his succession authentic instrument in the enforcement venue: these forms were provided, eventually, by Implementing Regulation 1329/2014.56

54 Presidency to Coreper Document 10126/11 of 20 May 2011; Presidency to Coreper/Council Document 10767 of 27 May 2011; Presidency to Council Document 11067/11 of 6 June 2011. 55 See 43–44 of Document 11870/11 of 29 June 2011 which only speaks of ‘acceptance’ and has been redrafted in part: by document 17968/11 of 18 November 2011 the final text for what are now Arts 59–60 is mostly present at 45–46. 56 Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession [2014] OJ L 359, 16.12.2014, p 30.

Authentic Instruments in the Succession Regulation  401

C.  The Succession Regulation As indicated above, the Regulation does not apply to the UK, Ireland or Denmark. Subject matter scope is set by Article 1(1) to concern the succession to the estates of deceased persons excluding revenue, customs or administrative matters. Article 1(2) lists the matters excluded from Article 1(1) to both prevent the Succession Regulation encroaching into the private international law provided by other EU Regulations and to prevent it encroaching unduly into other property and registration concepts of the participating Member States. The basic temporal application of the Regulation is derived from Article 83(1) which declares that it applies to the succession of persons who die on or after 17 August 2015.57 As Rauscher has noted, the Regulation does not specify with ideal lucidity that it also applies to authentic instruments registered or drawn-up prior to 17 August 2015 that are relevant to a succession occurring thereafter.58 Contrary however to Rauscher’s suggestion that a temporal restriction should be implied for earlier authentic instruments concerning Article 60 applications, it is submitted that the Regulation should be understood to also apply to earlier authentic instruments (or parts thereof) that comply with its requirements (eg testator died on or after 17 August 2015, a matter of succession within Article 1 scope, authentic instrument falling within Article 3(1)(i) definition, and Article 59 or Article 60, etc). Were this otherwise a 2016 succession in which a 2014 inter vivos authentic instrument was relevant (eg an authentic instrument in which a beneficiary recorded that his receipt of an inter vivos transfer of assets from the testator should disapply the reserved portion that he would otherwise be entitled to receive on the testator’s death) would not be understood in the same fashion inside and outside the Member State of origin despite the testator’s death falling within the temporal scope of the Regulation. There is no impermissible retroactivity in the suggestion that earlier authentic instruments should be admissible and indeed it is possible to connect this suggestion to the legislative intent demonstrated by Recitals 8, 22 (first sentence) and 60: Recital 60 In order to take into account the different systems for dealing with matters of succession in the Member States, this Regulation should guarantee the acceptance and enforceability in all Member States of authentic instruments in matters of succession.59

57 Art 83(2–4) provide respectively for the conditions for the Regulation to apply to: a choice of law made prior to 17 August 2015; a disposition of property upon death made prior to 17 August 2015; and, the effect of a competent choice of law in a disposition of property upon death made prior to 17 August 2015. 58 T Rauscher in Münchener Kommentar zum FamFG, Volume 2, 3rd edn (Munich, CH Beck, 2019) Art 60 para 3. 59 Recital 60 is apparently derived from the first sentence of draft Recital 26 from the Commission’s 2009 proposal document (with ‘acceptance’ substituting for the original ‘recognition’ and a few other minor amendments), see 2009 Proposal p 12.

402  Succession, and Property Regulations At no point is the date of drawing-up the authentic instrument mentioned as a relevant factor to limit the admissibility of the authentic instrument. As such dates have been inserted into other EU Regulations, eg Article 66 in the Brussels I Regulation (frequently the source from which draft provisions were borrowed for the draft Succession Regulation) and the Brussels Ia Regulation, absence seems consistent with intentional omission. The essential temporal factor for the application of Regulation is the date of the testator’s death, not the date of drawing-up of the will or any other authentic instrument.60 It is thus suggested that, if the issue should be raised, an analogous application of the Article 83(3–4) provisions could be adopted to include authentic instruments registered or drawn-up prior to 17 August 2015 within the scope of the Regulation if they otherwise fit within it and are germane to the succession occurring due to the testator’s death on or after that date.

D.  Provisions of the Succession Regulation Relevant to Authentic Instruments The provisions of the Regulation of most direct relevance to authentic instruments are found: in numerous Recitals (8, 22, 58, 60–66, 69, 76, 78); in the Article 3(1)(i) definition; in Article 59 concerning cross-border ‘acceptance’ of authentic instruments; and in Article 60 concerning cross-border enforcement of authentic instruments. Article 3(1)(i) repeats the by now standardised definition of an authentic instrument derived from the Unibank case61 to define an authentic instrument, which in this context need not be an enforceable authentic i­nstrument, for the purposes of the Succession Regulation as: Article 3 (1) For the purposes of this Regulation: … (i) ‘authentic instrument’ means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin. 60 Though not dealing explicitly with authentic instruments, Franzina clarifies persuasively that the extension of the Regulation to pre-death transactions and facts is not forbidden retroactivity if the death is on or after 17 August 2015. P Franzina, ‘Art 83’ in A Calvo Caravaca, A Davi and H-P Mansel (eds), The EU Succession Regulation: A Commentary 1st edn (Cambridge, Cambridge University Press, 2016) paras 3–5, 853–54. Also see example 2 on 963 of P Wautelet, ‘Art 83’ in A Bonomi and P Wautelet, Le Droit Européen Des Successions: Commentaire du Règlement (UE) 650/2012 2nd edn (Brussels, Bruylant, 2016) 959–78, if previously drawn-up authentic instruments were thought to be excluded this example would be differently drawn. 61 Case C-260/97 Unibank A/S v Flemming G Christensen EU:C:1999:312.

Authentic Instruments in the Succession Regulation  403 This definition follows the Unibank orthodoxy concerning the origins of the authentic instrument and its need for a conferral of authenticity by a public official empowered for that purpose in the Member State of origin; the definition remained stable during the negotiating process. The only changes from the 2009 Proposal were renumbering and improvements to its linguistic felicity.62 Though in most respects this definition is uncontroversial, there are various subtleties and relationships with Recitals that require mention. The succession authentic instrument must be formally drawn-up or registered in what for the purposes of the Regulation is an EU Member State. Thus, even if an authentic instrument relating to succession matters could be drawn-up or registered in the UK, Ireland or Denmark, its origin would prevent it being regarded as an Article 3(1)(i) authentic instrument under the Succession Regulation. For the same reason an authentic instrument from outside the EU cannot be presented as a succession authentic instrument under the Succession Regulation.63 The authentic instrument must relate to a ‘matter of succession’, this means a matter not excluded from the material scope of the Regulation that relates to any civil law aspects of succession to the estate of a deceased person.64 As such a matter of succession may thus include non-excluded inter vivos and post mortem matters, there may be inter vivos and post mortem Article 3(1)(i) authentic instruments concerning a civil law aspect of succession to the estate of a deceased person. There is no requirement in Article 3(1)(i) that succession authentic instruments must include any enforcement potential nor feature any enforceable component; though enforceability is required for Article 60 to operate, there is no equivalent requirement if the applicant wishes to use a succession authentic instrument via Article 59 (or Article 74) merely to attempt to produce a cross-border evidential effect.

i.  Distinguishing an Article 3(1)(i) Authentic Instrument from an Article 3(1)(g) Decision; the Role of Article 3(2) As it is possible for a Member State legal system to have given its notaries or other succession officials a role in the operation of succession matters (or more generally) that when assumed will transcend their purely notarial official functions to involve acting not just as an official representative of a court but as a judge, Article 3(2) is provided to clarify that when such an official (eg a notary) exercises 62 See earlier discussion of the Unibank case and its definitional issues in chs 4 and 5 above. See also P Wautelet in Bonomi and Wautelet (n 60) Art 3(1)(i), 164–70; C Schall and U Simon in R Geimer and R Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen Vol III (Munich, CH Beck, looseleaf) Art 3(1)(i) Europäische Erbrechtsverordnung, 57–58; M Weller in Calvo Caravaca, Davi and Mansel (eds) (n 60) Art 3(1)(i), 121; G Nikolaidis, ‘Art 3(1)(i)’ in H Pamboukis, EU Succession Regulation 650/2012: A Commentary 1st edn (Oxford, Hart, 2017) Art 3(1)(i), paras 25–26, 105; and T Rauscher in MüKo FamFG, Volume 2 (n 58). 63 Presumably succession authentic instruments drawn-up in consular/diplomatic premises of an EU Member State would be included within the Regulation. 64 See Recital 9.

404  Succession, and Property Regulations a judicial function while offering ‘guarantees with regard to impartiality and the right of all parties to be heard’, shall, if his decisions ‘under the law of the Member State in which they operate’, are capable of review by (or appeal to) a judicial body, and, have a similar force and effect as a decision of a judicial authority on the same matter, be regarded as acting as a court. The immediate significance of Article 3(2) is that if the notary or other authority is allowed by its legal system to act as a judge in a court he must, when so doing, render decisions in accordance with Article 3(1)(g) and is subject to the same jurisdictional/applicable law/and recognition and enforcement provisions of the Regulation as any other court: he must hence use the Annex 1 form for any Article 3(1)(g) decisions and not the Annex 2 standard form which applies instead to Article 3(1)(i) authentic instruments. As it is quite common in the EU22 for a domestic notarial profession to assist its succession court by producing official documents, eg an inventory or an agreement on division etc, the question arises, ‘does the notary who so acts then fall within Article 3(2) and produce an Article 3(1)(g) decision or does he instead draw-up an Article 3(1)(i) authentic instrument?’ A surprising finding which emerged from the responses of the national and notary reporters during the 2016 Study by the University of Aberdeen for the European Parliament was that in late 2015–early 2016 in a number of legal systems the notaries (then) took the erroneous view that the potential for the assumption of an Article 3(2) competence by a notary inevitably entailed that only an Annex 1 form could be issued by that notary in connection to any application to the notary for an attesting certificate even if the application concerned an inter vivos authentic instrument which had clearly been drawn-up before any Article 3(2) competence could ever have been assumed.65 Though the need for an Annex 2 form in the context of inter vivos authentic instruments was readily conceded by all notaries contacted concerning this issue, the question of whether a decision or an authentic instrument was at issue was much more difficult to resolve, differences in domestic succession practice meant that the matter came down to the manner in which the issue was conceptualised in the Member State subject to the final clarification offered by the last sentence of Article 3(2), ‘The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79’. It would seem to follow that if the relevant Member State had not so notified the Commission there should be no Article 3(2) transcendental judicial competence within its legal system(s) despite any claims to the contrary by either the domestic notarial profession or by an applicant. Such certainty was however removed by Case C-658/17 WB66 in which the CJEU (following the advice of its

65 2016 EP Study (n 20) 44. 66 Case C-658/17 WB ECLI:EU:C:2019:444 at para 68 (following the earlier advice of AG Bot who also did not discuss the issue of the meaning of the autonomous nature of authenticity ECLI:EU:C:2019:166 at para 101).

Authentic Instruments in the Succession Regulation  405 Advocate General) held that the lack of an Article 79 notification does not determine the applicability of Article 3(2). The CJEU held that if the requirements of Article 3(2) can otherwise be made out within the relevant Member State of origin, the lack of an Article 79 notification is irrelevant. This conclusion seems unwise, it throws into doubt the already unclear status of different examples of notarial judicial assistance found in the legal systems of the non-notifying Member States67 and, considered logically, also renders contestable any general Article 3(2) status claimed to result from such a prior Article 79 notification. In WB, the son of the deceased was one of the persons mentioned under a Polish notarial deed of certification of succession issued by a Polish notary. WB wished to establish if his late father had assets in banks in neighbouring Germany and hence requested an authentic copy of the certification of succession from the office of the Polish notary plus what he was advised was the appropriate Annex 1 form68 for what was represented to him to have been an Article 3(1)(g) decision. This request was refused by the notary’s office,69 which regarded the notarial succession certificate as an Article 3(1)(g) decision requiring an Annex 1 form, because that form was not available to the Polish notary because Poland had not filed an Article 79 notification for its notarial profession. A later request to issue instead an official copy of the deed of certification plus an Annex 2 form for an Article 3(1)(i) authentic instrument was also refused by the notary’s office as it maintained that what it took to be the domestic classification of the notarial deed of certification of succession as an Article 3(1)(g) decision meant that it could not then be treated for the purposes of the Regulation as an Article 3(1)(i) authentic instrument via the Annex 2 form. This self-inflicted, but far from isolated,70 conundrum was resolved by the CJEU examining whether the requirements of Article 3(2) were made out in a non-notifying State in relation to the specific circumstances of the notarial assistance provided to the Polish court. This entailed determining whether the Polish Notary had carried out judicial functions in connection with the issue of the deed in question. After clarifying the requirements for such functions to be deemed ‘judicial’71 the CJEU concluded that Article 3(2)(a) was not made out and 67 Exactly this point arose in relation to Austria in the 2016 EP Study (n 20) 45. The Austrian notarial profession maintained, assuredly in good faith, that its members could act within Art 3(2) as courts to render Art 3(1)(g) decisions capable of recognition and enforcement under the Regulation and that they should accordingly be accompanied with a Regulation 1329/2014 Annex 1 form. There had however been no Art 79 notification by Austria. As neither Austrian legal commentaries nor the informal assistance on this point provided to our very distinguished expert national reporter by an Austrian lawyer and notary could establish that Austrian notaries did indeed possess any such Art 3(2) competence, it was concluded that the absence of the Art 79 notification by Austria indicated that there was no domestic relevance under Art 3(2) in Austria. At the least WB renders this conclusion debateable. 68 In the present case the issue was which official form should accompany the notarial deed: if it was a decision then Annex 1 of Regulation 1329/2014, but if it was an authentic instrument, Annex 2 of Regulation 1329/2014. 69 Apparently following the trend of academic and practitioner opinion on this matter in Poland. 70 See 2016 EP Study (n 20) 44. 71 Case C-658/17 WB (n 66) paras 53–62 inclusive: a decisive factor was that the Polish notarial deed could only be issued by the notary if all parties agreed, there was no independent ‘jurisdiction’ for the notary to act absent this consent.

406  Succession, and Property Regulations hence Article 3(2) did not apply.72 The notarial deed did however comply with the Article 3(1)(i) authentic instrument requirements and therefore should be regarded as such in Poland and supported with the Annex 2 standard form that the office of the Polish notary was therefore required to issue despite the prevailing professional view in Poland of the nature of the notarial actions at issue.73 Though this was undoubtedly the correct outcome, it seems unfortunate that it was expressed to undermine the Article 79 notification process and to destabilise the Annex 1 and 2 forms of Regulation 1329/2014 by permitting a case by case disputation of whether a given notarial practice in a particular Member State (notifying or non-notifying) involved the notary in carrying out an Article 3(2) judicial function, this is the more concerning as the effects of such a dispute will not be confined to the Member State of origin.74 As WB demonstrates, in the context of a non-notifying State, a given notarial office may, in good faith, adopt a position that claims wrongly that a given notarial act is an Article 3(1)(g) decision which (had it been so permitted in Poland) would have led to the issue of the wrong form thereby promoting the authentic instrument to a decision, with a selffulfilling jurisdiction and associated potential to affect other proceedings due to its judgment derived cross-border recognition and enforcement potential. A further case on this issue arose from the preliminary reference made by the Lithuanian Supreme Court now reported in the recently published Opinion of Advocate General M Campos Sánchez-Bordona in Case C-80/19, EE.75 This reference concerned, inter alia, the notarial or judicial status of a Lithuanian notary in a succession matter in which she had refused to act (because she believed that the deceased’s habitual residence was in German rather than Lithuanian) and also whether her Lithuanian notarial certificate of succession would be an authentic

72 ibid, para 63. It should be noted that the office of the Polish notary reached its conclusions via prevailing domestic ideas in Polish legal science. See earlier criticism of the 2016 EP Study (n 20) – which had concluded that the Polish inheritance certificate issued by a notary was an Art 3(1)(i) authentic instrument rather than an Art 3(1)(g) decision – in a comment arguing the contrary posted at http:// conflictoflaws.net/2016/new-study-on-the-evidentiary-effects-of-authentic-instruments-succession/. 73 ibid, para 72. 74 The dispute must be resolved in the Member State of origin, but this could disrupt cross-border aspects of the succession in the Member State(s) of enforcement. 75 See ECLI:EU:C:2020:230 for the AG’s Opinion in Case C-80/19 EE and for the request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 4 February 2019 – EE (2019) OJ C 148, 29.4.2019 18–19. In the contexts of the Brussels Ia Regulation in Pula Parking and the EEO Regulation in Zulfikarpašić (each of which lack an equivalent of Art 59 of the Succession Regulation by which the so-called acceptance of the evidentiary effect of the incoming authentic instrument is required) the CJEU has also recently had to differentiate between judge issued judgments, that clearly can circulate across borders via each provision of EU private international law, and notarial activities concerning competencies transferred by a given Member State from its courts to its notaries to relieve pressure on its courts: in these two cases the CJEU resisted attempts to suggest that the notaries are generating judgments or authentic instruments capable of circulation via existing EU private international law. C–551/15 Pula Parking [2017] EU:C:2017:193 and C-484/15 Zulfikarpašić [2017] EU:C:2017:199 are discussed by Martina Mantovani, ‘Notaries and their Debt-Collection Writs under the Brussels Ia Regulation. A Difficult Characterisation’ (2019) 15(2) Journal of Private International Law 393–417.

Authentic Instruments in the Succession Regulation  407 instrument capable of having cross-border evidentiary effect via Article 59 of the Regulation. The AG opined, in paragraphs 81–84, that Lithuanian notaries, concerning which there had been no Article 79 notification of judicial function, were not on the apparent facts capable of being regarded as possessing a judicial function under Article 3(2) of the Regulation. The AG considered further that the inheritance certificate issued by a Lithuanian notary could be an authentic instrument under the Succession Regulation and thereby produce cross-border evidentiary effects via Article 59 of the Regulation, see paragraphs 85–88. It seems unlikely that EE will be the last case that the CJEU will have to decide on this point.

ii.  Authenticity of the Authentic Instrument and the Nature of this Autonomous Concept Aside from the formal requirements imposed by the Article 3(1)(i) definition itself, ie that the authenticity conferred in the Member State shall have been established by a public (or other authority) empowered for that purpose by the Member State of origin, and that this conferral must relate to the content of the authentic instrument as well as to ‘the signature’ (if such a signature should be a constitutive requirement to draw-up or register the authentic instrument) all the other formal requirements appear, very properly, to be left to the law of the Member State of origin. As the laws of the relevant Member States are far from uniform on basic issues such as who can create authentic instruments, how they are created and what their legal effects will be in the context of a domestic succession, the May/June 2011 Political Compromise and compromise package indicated that a clarifying Recital would be provided to set out the meaning of the ‘authenticity’ that the public authority should be understood to have potentially conferred on the signature and ‘contents’ of the succession authentic instrument.76 This clarification is present in Recital 62 which while clarifying ‘authenticity’ also seeks to delimit the intended operation of Article 59’s potential extension of evidential effects among the participating Member States. ‘Authenticity’ is important as it sets the nature, content and extent of the Regulation’s cross-border effects for its Article 3(1)(i) authentic instruments via Articles 59 and 60. For an Article 3(1)(i) authentic instrument the cross-border legal effect of Article 59 must (assuming no public policy issues) be to allow the procedural evidential effects of the instrumentum of the instant authentic instrument from the Member State of origin to extend, if needs be by a form of adaptation, to the procedural law of the Member State of enforcement. The extent of this extension and any consequential adaptation is set initially by the domestic authenticity that was conferred upon the authentic instrument in its Member State of origin. It follows that if the legal system in which the foreign authentic instrument is presented knows no authentic instruments or knows only a drastically attenuated form of authentic

76 Document

11870/11 of 29 June 2011 p 44 at fn 1.

408  Succession, and Property Regulations instrument compared to the incoming authentic instrument, it must nevertheless allow Article 59 to operate by conferring foreign procedural evidential effects on its instrumentum. Conversely, if compared to the legal system in the Member State of origin, the legal system in which the foreign authentic instrument is presented allows additional possibilities to its own domestic authentic instruments, these additional possibilities are not to also be conferred on the foreign authentic instrument by the operation of Article 59 which continues to be informed in an initial sense by the extension of the evidential effects actually conferred in the Member State of origin. What became Recital 62 was originally to explain ‘authenticity’ in terms of the matters that fell within the formal validity and probative force conferred by the notary or other public officer on the authentic instrument in the Member State of origin and to clarify that such matters could only be challenged in the Member State of origin via its domestic law. Thus, Recital 62 sets out that ‘authenticity’ includes the ‘genuineness of the instrument’, its formal prerequisites, the powers of the authority that drew it up, and the procedures applicable to this drawingup process. Authenticity also includes the officially verified facts77 recorded in the authentic instrument, hence it refers to the instrumentum of the authentic instrument. Although the point is obvious, it should be understood that if a fact is not officially verified it does not benefit from the privileges associated with the authenticity by which Article 59 operates: it follows that the cross-border legal effects of the instrumentum of an incoming succession authentic instrument must be assessed, as per the process envisaged by Recital 61,78 on an individual basis with reference to both the general possibilities in the Member State of origin and with reference to the verifications found in the individual authentic instrument from that Member State. This examination process may be eased if the authority that drew-up or issued the authentic instrument has completes an Annex 2 Form II (from Regulation 1329/2014) which is supplied to indicate the matters on which authenticity was conferred. An examination of the authentic instrument is however always required in the Member State of enforcement to establish the actual and particular legal effects to be conferred on the incoming ­authentic instrument and to prevent additional local legal effects being conferred by accident within the Member State of enforcement. Recital 62 prefaces these unobjectionable clarifications with the statement that the authenticity of a Succession Regulation authentic instrument should be regarded as ‘an autonomous concept’.79 Presumably this autonomous 77 Recital 62 specifies that the authenticity ‘should also cover the factual elements recorded in the authentic instrument by the authority concerned, such as the fact that the parties indicated appeared before that authority on the date indicated and that they made the declarations indicated.’ Such verifications are naturally limited by what the notary can properly verify, see discussion in ch 1 s IV. 78 Recital 61 second and third sentences. 79 The autonomous concept notion was apparently inserted into the draft text between June and October 2011 it is not present in the Compromise Package or the June 2011 draft text footnote but is present in Document 15728/11 of 27 October 2011, 3 fn 1.

Authentic Instruments in the Succession Regulation  409 characterisation was intended to try to detach the meaning of cross-border concepts from divergent domestic concepts. If so, Recital 62’s autonomous concept of ‘authenticity’ is somewhat odd as it is constructed from matters that are utterly dependent on heterogenous domestic laws and practices only challengeable via heterogenous challenge procedures found in the Member State of origin. How can the genuineness of the instrument, the powers of the authority that drew it up and the procedures under which it was drawn-up etc, which all depend upon following the domestic formal and procedural requirements in each Member State legal system, be regarded as part of an autonomous European concept of ‘authenticity’ concerning a succession authentic instrument? There is no single European authentic instrument, no single European office of notary and no single European succession proceeding: hence a notary or other public official can only draw-up an authentic instrument in accordance with his own domestic legal procedures and possibilities. In what sense can these procedures and possibilities be regarded as autonomous? The answer is that they are not autonomous in this sense inside the Member State of origin, here the autonomy consists solely of the enumeration of the potential constituents of authenticity which are promised to take effect outside the Member State of origin: the autonomy attaches outside the Member State of origin to ensure that the cross-border potential of an authentic instrument endures for as long as it remains unchallenged in the Member State of origin. This answer seems forced as the CJEU has accepted, albeit without any discussion on the point, that Recital 62 correctly describes ‘authenticity’ as an autonomous European legal concept.80 For Recital 62 to correspond with the CJEU’s approval of autonomy, and to accord with reality, it is necessary to treat the autonomous authenticity requirement as merely constitutive inside the Member State of origin and effective outside the Member State of origin once the notary or other public official has conferred the authenticity on the content and required signatures in compliance with the Regulation’s requirements to allow the ‘export’ of the authentic instrument from the Member State of origin. This autonomy for the authenticity requirements must be intended to prevent the matters reserved to the law of the Member State of origin from being differently enumerated or classified/characterised in the enforcement venue according to its own domestic concepts. Thus, an enforcement venue may not add nor (normally) subtract from the constitutive parts of the authenticity conferred in the Member State of origin and nor should it, assuming no manifest violation of operative public policy via Articles 59 or 60, seek to test these constitutive parts of a foreign succession authentic instrument for compliance with purely local authentication norms. The price for this cross-border protection from local norms is however that the authentic instrument itself remains vulnerable to a Member State of origin



80 Case

C-658/17 WB (n 66) at para 68.

410  Succession, and Property Regulations challenge to its formal validity/instrumentum or probative force – all of which are purposely81 subsumed within Recital 62’s ‘authenticity’ concept – or to challenges relating to its assumed negotium which, as indicated by Recital 63, proceed via the relevant jurisdictional and applicable law provisions of the Succession Regulation. Recital 65 directs that challenges to an authentic instrument will suspend its ability to produce external cross-border evidentiary or enforcement effects either in toto or concerning a specific point (if only that point is challenged).82

E.  Cross-Border Acceptance of Authentic Instruments under the Succession Regulation: Article 59 Recital 60 states that the Regulation should guarantee the acceptance and enforceability of authentic instruments in matters of succession in all (participating) Member States: Article 59 represents an attempt to provide this guarantee via a new concept and procedure titled ‘acceptance’ and described in the four numbered paragraphs of Article 59. These provisions follow the outlines proposed by the June 2011 compromise package and are supported by various Recitals. In the coverage that follows Article 59 is presented and the particular effects of its four paragraphs are explained in outline. Then issues specific to the operation of Article 59 are explored in greater depth. These issues are: the meaning and nature of acceptance; how is Article 59 intended to be applied; the Annex 2 form and the scope and meaning of evidential effects; some practical problems with the suspensive effect of a Member State of origin challenge; Article 59 adaptation; and public policy under Article 59. Article 59 Acceptance of authentic instruments 1. An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned. A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 81(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin. 2. Any challenge relating to the authenticity of an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce

81 Rauscher has criticised the ‘authenticity’ at issue in Recital 62 as a typically inexact translation of the relevant legal concept (Beweiskraft/probative force) into authenticity (Authentizität): Rauscher (n 62) para 5. It is unclear if Rauscher also means to suggest that this inexactitude was accidental, the French and English texts do not however make it obvious that any such an accident occurred. 82 Recital 65 but see Art 59(2) and Art 60(1) for specifics.

Authentic Instruments in the Succession Regulation  411 any evidentiary effect in another Member State as long as the challenge is pending before the competent court. 3. Any challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged as long as the challenge is pending before the competent court. 4. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument in matters of succession, that court shall have jurisdiction over that question.

Article 59(1) sets out the intended effect of the provision as per Recital 60’s guarantee and Recital 61’s exhortation that a succession authentic instrument ‘established’, ie drawn-up or registered, in one (participating) Member State shall be accorded the same evidentiary effects (or most comparable effects) it has in its Member State of origin in another (participating) Member State unless providing such cross-border evidentiary effects would be manifestly contrary to that Member State’s public policy. In effect Article 59 establishes a procedural conflict of law rule83 that will, subject to adaptation and public policy requirements, direct the Member State of enforcement to displace aspects of its own civil procedure law for the narrow purpose of applying instead a simulacrum of the foreign procedural rules associated with the evidential effects that the incoming authentic instrument would enjoy in the Member State of origin. Article 59(1) also records that the applicant who wishes to use such an authentic instrument may opt to request a standard form describing the domestic evidential effects of the authentic instrument from the authority who established it in the Member State of origin: the standard form is Annex 2 Form II from Regulation 1329/2014 (as amended).84 Recitals 67 and 69 clarify that if this accords with practice in the Member State of origin, the applicant has the option of using an authentic instrument directly as a certificate of succession rather than having to use the European Certificate of Succession; and further that when there is a choice on how to proceed on this issue it belongs to the applicant and should not be determined or influenced by the enforcement venue nor by the enforcement target neither of whom may, in such circumstances, insist on the production of a

83 Mansel (n 60) Art 59, 627; A Dutta in J von Hein (ed), Münchener Kommentar zum BGB vol X, 6th edn (Munich, CH Beck, 2015) Art 59 EuErbVO; Wautelet (n 60) Art 59, 666; A Dutta, ‘Das neue internationale Erbrecht der Europäischen Union – Eine erste Lektüre der Erbrechtsverordnung’ (2013) FamRZ 13 ff; J Foyer, ‘Reconnaissance, acceptation et exécution des jugements étrangers, des actes authentiques et des transaction judiciaires’ in G Khairallah and M Revillard (eds), Droit européen des successions internationales (Paris, Defrenois, 2013) 141 at 161; J Fitchen, ‘Recognition, Acceptance and Enforcement of Authentic Instruments in the Succession Regulation’ (2012) 8 J Priv Int L 8 323 at 356. 84 The Annex 2 form on this point is discussed below.

412  Succession, and Property Regulations European Certificate of Succession when the applicant wishes instead to present an authentic instrument. Article 59(2) sets out two fundamental principles for any instrumentum challenge: first, that (as indicated by Recital 62) all challenges to the ‘­authenticity’ of an authentic instrument must be brought before the courts of the Member State of origin and according to its law; second, that such a challenge deprives the authentic instrument of any evidentiary effect in other Member States while it is pending before a competent court.85 Though authenticity has already been discussed, it is useful to notice something of the consequences of challenging authenticity via Article 59(2). For the challenge to deprive the authentic instrument of its crossborder evidentiary effects it must be ‘pending’ before the courts of the Member State of origin; thus, if the challenge is unsuccessful and dismissed, or is dropped by the applicant before the court can rule, this means that the evidentiary effects associated with the authenticity of the authentic instrument are no longer suspended and will presumably revive and resume. Equally, though the challenge contemplated by Article 59(2) will deprive the authentic instrument of evidentiary effect in other Member States it does not do this in the Member State of origin; this delicacy is not due to a belief that a domestic challenge would have to leave the authentic instrument operative until the court’s ruling, but rather reflects the lack of EU competence on such matters of domestic law in the Member State of origin.86 Concerning the effect of a successful challenge, though the point can be inferred, Recital 65 in its third sentence explains that if the outcome of the legal challenge is that the authentic instrument is declared to be ‘invalid’ it ‘should cease to produce any evidentiary effects’.87 Again for reasons of competence this statement applies to Member States other than the Member State of origin. A further elementary point is that though the word ‘any’ is used in the last sentence of Recital 65, it does not appear to be intended to prevent the invalidated authentic instrument from being admitted or used itself as evidence of the fact of its invalidity (or the circumstances relating to this invalidity) if this is significant in proceedings in a Member State of enforcement. Article 59(3) clarifies that a negotium challenge to the substance of the legal acts88 or legal relationships89 recorded90 in the authentic instrument must, in 85 Recital 65 first sentence. 86 See Art 2. 87 Recital 65 third sentence. 88 Recital 63 second sentence provides the following non-exhaustive examples: the will; an agreement as to succession; a declaration of intent as to succession; and, a partition agreement by the parties to share-out or distribute the estate. 89 Recital 63 sentence three gives the following examples: a determination of the heirs/beneficiaries as per the applicable law of the succession, a determination of the respective shares of such persons and the existence of any reserved share, plus, ‘any other element established under the law applicable to the succession’. 90 If the challenge was to the fact of recording, ie arguing that the notary had wrongly recorded such a matter as a fact, the challenge is not to the negotium but to the instrumentum and hence fits under Art 59(2).

Authentic Instruments in the Succession Regulation  413 accordance with necessary orthodoxy, proceed according to the rules of jurisdiction and applicable law as laid down by the Succession Regulation.91 The effect of a pending Article 59(3) negotium challenge is to deprive the authentic instrument of any cross-border evidentiary effects in other Member States, but this deprivation is more specific than the general effect of an Article 59(2) challenge as it only relates to the matter being challenged.92 As in the Article 59(2) challenge, the deprivation of effect is conditional on a challenge being, and remaining, pending before a competent court. An Article 59(3) challenge does not deprive the challenged parts of the negotium of the authentic instrument of evidentiary effect inside the Member State of origin.93 If the Member State of origin is also the location for the negotium challenge this can be justified both in terms of a lack of EU competence over the substantive domestic law issue of the material validity of the disputed juridical act, and with reference to practical reasons associated with the post mortem ‘management’ of the succession. If however the Article 59(3) challenge is conducted in a Member State other than the Member State of origin, the Regulation still does not apply to this domestic matter in the Member State of origin, again due to Article 2: hence the Succession Regulation should in this context be understood to make this point via Article 59(3) rather than to suggest that the evidential effects must continue in the Member State of origin. The Member State of origin is thus free to regulate its domestic legal provisions in succession matters despite an ongoing negotium challenge in a different Member State. Article 59(4) also concerns the negotium of an authentic instrument and, together with Recital 63, reassures that in the circumstance that a Member State court should find that the outcome of its proceedings will turn upon the determination of an incidental question arising in relation to a legal act or legal relationship recorded in an authentic instrument relating to a matter of succession, it has the jurisdiction necessary to rule on the relevant legal act or legal relationship to resolve the incidental question that is determinative of the other questions in its main proceedings.

i.  The Meaning and Nature of Acceptance As indicated earlier, what eventually became Article 59 had been controversial. To attempt to avoid the controversies and to facilitate agreement on that which would (and would not) be allowed by Article 59 of the Regulation, the June 2011 Compromise Package94 provided seven numbered paragraphs concerning authentic instruments, mostly to explain what was and was not expected to be entailed by a new concept described by the title as ‘acceptance’ that would 91 Recital 63 fourth sentence. 92 Recital 65 second sentence however apparently relates to an Art 59(3) negotium challenge but not to an Art 59(2) instrumentum challenge. 93 Art 59(3) second sentence. 94 Document 11067/11 of 6 June 2011.

414  Succession, and Property Regulations replace the troublesome term ‘recognition’. The drafting of the amended Article, and its supporting Recitals, proceeded from this point: the contents of the seven paragraphs (25–31) of the June 2011 Compromise Package can be correlated with various provisions in Articles 59 and 60 and with aspects of the seven final Recitals (60–66) of which five attempt to clarify/reassure over Article 59’s intended operation. It is best to begin by emphasising that though Article 59 acceptance undoubtedly represents a novel95 amendment of the also novel provision that draft Article 34 had sought to introduce, the extent and nature of the novelty of its ‘acceptance’ concept, whether considered in terms of legislative intent or legislative outcome is debatable. In terms of legislative intent it is important not to ignore the context of the introduction of ‘acceptance’: the June 2011 compromise agreement did not seek to introduce radical changes for authentic instruments, indeed much of its authentic instrument content sought to reassure that orthodoxy was not to be abandoned.96 The compromise proposals sought to permit agreement on a way forward concerning provisions that had stalled for lack of a consensus because of the disputes over the nature and meaning of the Article 34 recognition concept: hence ‘recognition’ was deleted and the seemingly more neutral term ‘acceptance’97 was instead to be used as a title to describe a process that was also to be supported by conciliatory Recitals aiming to ensure that ‘acceptance’ would not disrupt unduly existing legal orders by its exhortation to extend certain evidentiary effects across borders. In terms of legislative outcome, Article 59 attempts to ensure that the authenticity/domestic evidentiary force etc of an Article 3(1) (i) authentic instrument concerning a matter of succession (and originating from one participating Member State) should prima facie be effective on presentation of the authentic instrument in another participating Member State once it has ‘accepted’ that presentation by applying Article 59 to allow the incoming authentic

95 The present author was surprised to learn that he had not made the point with sufficient lucidity when writing in 2012, see Mansel (n 83) para 6, fn 59, 632. 96 Document 11067/11 of 6 June 2011. 97 It is sometimes suggested that the idea for Art 59 acceptance is derived from Case C-336/94 Eftalia Dafeki v Landesversicherungsanstalt Württemberg EU:C:1997:579. The operative part of Dafeki records, ‘In proceedings for determining the entitlements to social security benefits of a migrant worker who is a Community national, the competent social security institutions and the courts of a Member State must accept (my emphasis) certificates and analogous documents relative to personal status issued by the competent authorities of the other Member States, unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question’. With respect to those who take a different view of the influence of this case on Art 59, it is noted that the Commission’s 2009 proposal does not refer to the 1997 case or the principle it established at any point and nor, so far as the present author has been able to discern, are there subsequent references to the Dafeki case or principle in the documents that followed concerning authentic instruments or even in the context of the compromise title proposed in mid-2011 of ‘acceptance’. It is hence suggested that if Dafeki had an influence on authentic instruments it was a subtle one; by the time of Dafeki the principle that authentic instruments could circulate was long-established by EU legislation and its progressive abolition of intra EU legalisation requirements among the relevant Member States. Dafeki extended the orthodoxy, it did not establish the procedural conflict of laws rule found in Art 59.

Authentic Instruments in the Succession Regulation  415 instrument to produce the same or most equivalent evidential effects concerning instrumentum in the Member State of enforcement as it would produce in its own originating legal system98 (assuming that this is not manifestly contrary to public policy). Though pursuing this policy has led to Article 59 operating as a procedural conflict of law rule, it is not clear from the drafting documents that the legislators fully appreciated any radical significance connected with this development as they sought to find the words to effect the desired Article 59 evidence transfer function. Instead, Article 59 (and its forerunner draft Article 34) appear to have arisen from the somewhat odd wish that the authenticity and domestic evidential effects of an Article 3(1)(i) authentic instrument that need not be ‘enforced’ via Article 60 should be capable of transmission across the borders of participating Member States not by a compulsory standardised EU certificate or Annex form, but via a procedural conflict of laws rule that is applied to individual incoming authentic instruments by the legal system in the Member State of enforcement to attempt to transfer and replicate individual foreign evidentiary effects concerning the instrumentum of each incoming authentic instrument (subject to adaptation and public policy requirements) in the Member State of enforcement. The Article 59 crossborder ‘acceptance’ concept is additional to and distinct from the more familiar cross-border evidence transmission mechanism that has traditionally led to crossborder enforcement understood in terms of paying or doing as per Article 60.99 As many relevant succession authentic instruments are not ‘enforceable’ in the sense that they require immediate ‘paying or doing’, this could justify the development of Article 59 acceptance to allow the transmission of the evidence of those authentic instruments across borders. The difficulty with this suggestion is that the limited evidence transmission function of an authentic instrument via Article 60 is restricted to the enforcement of enforceable authentic instruments due to its drafting rather than due to any other intrinsic issue: both Article 60 and Article 59 involve cross-border transmission of evidence albeit via different methods. In this abstract sense Article 59 represents an alternative to Article 60. Within the scheme of the Regulation however, it is via Article 59’s methodology that the range of specified cross-border evidential effects are seemingly intended to be effected. This seems to echo the Brussels I Regulation concepts concerning the cross-border recognition and enforcement of judgments which inspired draft Articles 34 and 35 of the 2009 proposal. In structural terms the drafting of Articles 59 and 60 still reflect aspects of the two-stage recognition and enforcement procedure appropriate for judgments but inappropriate for authentic instruments. It is suggested that this muddle of concepts has led to an unnecessary partial duplication of legal function concerning evidence transmission by the Article 59 method and by the Article 60 method. 98 Recital 61. 99 Plainly an Art 59 application need have no connection with an Art 60 application (and vice versa) according to the drafting of the Succession Regulation and also the Annex II form, see questions 4.1.1–4.1.2 and 6.1.1–6.1.2.

416  Succession, and Property Regulations As already noted, Article 59 is a procedural conflict of laws rule, but one that deficiencies in the structures and procedures provided by the Succession Regulation and Member State heterogeneity concerning authentic instruments, procedural laws and succession laws may each render difficult to apply in the Member State of enforcement via the cumbrous case by case method that, in the absence of any dedicated Regulation procedures, appears to be required of the succession authorities in the Member State of enforcement. Though the point is not free of controversy, it is suggested that the Article 59 acceptance concept is unnecessary and could still usefully be deleted from the Regulation. It is suggested that its inclusion was an error attributable to an ingrained but erroneous assumption that the cross-border enforcement of an authentic instrument that evidences an enforceable obligation to pay or do is and must be the same as the cross-border enforcement of a judgment that establishes as a legal fact an obligation to pay or do. It is unclear whether this error suggested the idea that there must be an ‘equivalent’ preliminary stage for authentic instruments prior to enforcement (to mirror the provisions for judgments), or whether the error arose in response to the comparative rarity of cross-border authentic instrument ‘enforcement’ in successions (conceptualised in terms of orders to pay or do) which could be understood to suggest a need for a new stage of process to allow unenforceable succession authentic instruments to produce cross-border effects when no enforcement was at issue. In either case however it was and is an error to equate enforcing an authentic instrument with enforcing a judgment. This error prevented an appreciation that all cross-border effects associated with authentic instruments are a consequence of the transmission of a document relieved of intra-EU legalisation requirements which takes the form of an ‘authentic instrument’ under a given EU Regulation of Convention and therefore is treated as presenting (presumed) evidence and (presumed) evidential effects from the Member State of origin within the borders of the other participating Member States which receive them in this sense and proceed as instructed by the relevant Regulation or Convention. It is in this respect that the enforcement of an authentic instrument differs from the enforcement of a judgment: although it is said of authentic instruments and judgments that they are both enforceable, the legal basis of enforcement is quite different; authentic instruments lack the finality of a judgment and thus they can, as a matter of logic, only be regarded as presenting unrebutted evidence of a duty to pay, or to perform in another way. Had this point about existing evidence transmission via authentic instrument enforcement been developed in the course of the drafting process, much time wasted on Article 34 recognition could have been saved; what is now Article 59 could have been deleted, and Article 60 could have been developed and clarified concerning the transmission of evidence in an orthodox and more sensible manner. Instead we have what is suggested to be the unnecessary establishment of acceptance via Article 59’s procedural conflict of laws rule across the EU25 as well as Article 60’s enforcement provisions for Article 3(1)(i) authentic instruments: this doubling of provisions threatens to obstruct the further development of the cross-border enforcement of authentic instruments

Authentic Instruments in the Succession Regulation  417 by restricting its scope and concentrating attention instead upon the novel acceptance concept now found in the Succession Regulation, the Matrimonial Property Regulation and the Registered Partnership Regulation.

F.  How is Article 59 Intended to be Applied? Article 59 is only applied in the Member State of enforcement: it is intended to operate on the presentation of an Article 3(1)(i) authentic instrument to the authorities of that Member State. Unlike Article 60, Article 59 is not equipped with directions to other Regulation provisions that indicate a specific procedure for its application in the Member State of enforcement: this is consistent with Article 59 being a procedural conflict of laws rule that must be applied on that basis by the authorities of the Member State of enforcement when the holder of a relevant and Regulation compliant authentic instrument presents it. This simple statement concerning application however conceals various practical and legal difficulties, the most obvious of which is that as the Succession Regulation does not generally regulate domestic succession law or procedure, an incoming authentic instrument to which Article 59 is deemed to apply can involve the application of Article 59’s procedural conflict rule concerning the authenticity and the verified facts of the instrumentum of the foreign authentic instrument being ‘parachuted’ into the domestic procedural law of the legal system of the Member State enforcement to concern a succession proceeding that would otherwise have proceeded entirely in accordance with domestic civil procedure rules and the provisions of the Regulation concerning the private international law issues. The Member State authority to which the incoming authentic instrument is presented, which may but need not be a court, must first understand that what has been presented is an authentic instrument; then it must appreciate that it, as an authority in the Member State of enforcement, is intended to apply the Article 59 conflict rule at a procedural level to allow the foreign procedural law relevant to the instrumentum and verified facts associated with the incoming authentic instrument in the Member State of origin to potentially override the domestic procedural law of its own legal system on these points to allow the authenticity and verified facts comprising the instrumentum of the specific incoming Article 3(1)(i) authentic instrument to produce the evidentiary effects that it would produce in its Member State of origin. This appreciation of the Article 59 procedural conflict of laws rule in the Member State of enforcement must also encompass the following three possibilities: a) that the Member State of enforcement legal system may be required to undertake a form of ‘adaptation’ of its own procedural law to allow the incoming authentic instrument to have the same or most comparable procedural evidentiary effects in its legal system as it would enjoy in the Member State of origin; b) that such acceptance must not proceed if the Article 59 public policy exception is triggered; and c) that challenges to the authentic instrument in the Member State of origin, or in another venue dictated by the operation of the

418  Succession, and Property Regulations Succession Regulation, may suspend or terminate the cross-border legal effects of the foreign authentic instrument qua authentic instrument with consequential implications for the evidential effects produced by the incoming authentic instrument and the evidence it is said to contain over the short, medium and long terms. Clearly the Article 59 conflict rule must be applied on a case by case basis in the Member State of enforcement, its processes set out above (and hinted at elsewhere in the Regulation)100 should not be carried out ‘automatically’ even if the authority in receipt in the Member State of enforcement is content to assume that it understands the potential evidential import of all such authentic instruments from all participating Member States.101 Matters escalate in complexity if multiple authentic instruments from different Member States are presented in the same Member State of enforcement (a possibility acknowledged by Recital 66) because the testator possessed an inconvenient superfluity of both means and family members distributed throughout the EU. In such a situation Article 59 still requires that its procedural conflict of laws rule shall be applied separately to each incoming authentic instrument, potentially leading to different outcomes and different evidential effects for each incoming authentic instrument varying with place of origin, official verifications and intended legal effect.102 Even in the context of accommodating only one incoming authentic instrument, the application of Article 59 appears to warrant a judicial procedure in the Member State of enforcement. Whether it will receive such treatment is however another matter, it is likely that non-judicial authorities will be entrusted with such matters even if in a de facto rather than a de jure manner. With respect, entrusting such matters to authorities in the Member State of enforcement who are unlikely to be familiar with the current application of foreign procedural law via an EU procedural conflict of laws rule is inadvisable; expert though such authorities undoubtedly are in the application of their own domestic procedural law it is unlikely that they are equally familiar with current foreign procedural law, even if there are no other complications arising from adaptation or public policy.103 It is for this reason that it is decidedly odd not to support Article 59 by allowing the authority in the Member State of enforcement the possibility of requiring the completion and production of an Annex 2 attestation form from the ‘author’ of the authentic instrument in question: who is there who is better placed to

100 Recital 61 speaks of the process of determining the evidentiary effects a given authentic instrument and relates this to a reference to the law of the Member State of origin. Recital 66 concerns incompatible authentic instruments and refers to their presentation to an authority. 101 The fact that a notary from State ‘A’ could have conferred an evidential effect does not mean that he must have done so; the actual authentic instrument must be considered. 102 Recital 66 is discussed at the end of the section of this chapter concerning the Succession Regulation. 103 It may be suspected that what may in practice occur is that a notary or other official in receipt of the incoming authentic instrument from a familiar venue will assume that the procedural law the Member State from which the authentic instrument originates is essentially the same as that in his home legal system and apply it accordingly.

Authentic Instruments in the Succession Regulation  419 clarify the procedural law – then and now104 – and the matters to which it applies currently? As however a judicial procedure directed by the Regulation is missing from Article 59105 this matter and other aspects of its operation are presumable left to the law of the Member State of enforcement and whomsoever it has decided to entrust with such matters. Some reassurance for authorities in the Member State may however be provided by the Annex 2 form that may but need not accompany the authentic instrument. The Annex 2 form was promised by the second paragraph of Article 59(1) and is provided by Regulation 1329/20014 as Attestation Form II: it aims to clarify, inter alia, the identity and nature of the evidential effects at issue and thereby to reduce the potential technical difficulties that might arise in the course of applying Article 59.106 This attestation form is provided for both Article 59 and Article 60 but is organised such that it is clear that some sections belong to Article 59 and not to Article 60 and vice versa. As far as Article 59 of the Succession Regulation is concerned, the use of this form is wholly optional;107 there is no specific Regulation procedure which mandates use of the form if merely the ‘acceptance’ of a foreign authentic instrument is requested. It thus may be that in the abovementioned circumstances authentic instruments may be presented without an attestation form either because this will save the presenter the difficulty and expense of requesting that the authority who drew-up or issued the original authentic instrument shall produce a completed Annex 2 form, or because the Annex 2 form that was requested does not support the claim in the manner that the claimant desires.108 As noted above, the authority charged with the succession in the Member State of enforcement has no power to require production of an Annex 2 form, even if that authority is a court. As it seems unlikely that a domestic provision seeking to fill the alleged gap would, given the costs it would involve, be a permissible form of implementation for the Succession Regulation, there is no obvious remedy in the Regulation for this issue.109 A further point is that the Form itself is not an 104 As the Regulation does not provide a contrary indication, the temporal consequences of a change in the domestic procedural law of the Member State of origin on an authentic instrument that was originally associated with one level of proof but is now associated with a different one will presumably depend on the Member State of origin’s legislation. It may also be noted that though authentic instruments such as an acte de notoriété will typically be produced quite soon after relevant death of the testator, it does not follow that all authentic instruments relevant to Art 59 will be so timeously produced. The international law of succession can provide surprise late appearances not only of an heir but also of an inter vivos authentic instrument. 105 An exequatur stage is present for Art 60, see Art 60(1). 106 Standardised attestation forms are mentioned by Recitals 76 and 78–79. Art 80 refers to the forms/ attestations mentioned by Arts 46, 59, 60, 61, 65 and 67, however Art 59 is not tied into the same procedures that apply to Art 60 via Art 46. 107 For Art 60 the form can be required by the court in the Member State of enforcement but need not be so required if it is content to dispense with this requirement, see Art 47(1) discussed below in relation to Art 60. 108 There is no obligation to present a form merely because one has been requested and produced. 109 Approaching the author notary is complicated by issues of client confidentiality; if however he learned of a misrepresentation of his authentication or its domestic legal effect it is possible that he might attempt to intervene to correct any misrepresentation.

420  Succession, and Property Regulations authentic instrument and will be considered and construed by the authorities in the Member State of enforcement alongside the authentic instrument itself in the course of complying with Article 59’s requirements.

G.  Article 59, the Annex 2 Form and Language Problems A further difficulty associated with the lack of procedural underpinning concerning Article 59 in the Regulation concerns the language in which the presented authentic instrument has been drawn-up and how this is to be understood by the authorities in the Member State of enforcement. Notaries and other public officials are (usually) required to draw-up documents in the official language of the legal system in which they practise, if this is the case in the Member State of origin, the Annex 2 form will be completed in that official language. How is this to be read and understood in another Member State? Though it would be perverse to present a Greek authentic instrument in Finland without a Finnish translation and without an attestation form (quite possibly also requiring partial translation to Finnish) the Regulation does not allow any authority in the Member State of enforcement the express power to require a translation of either the ­incoming authentic i­ nstrument or, somewhat incredibly, of any accompanying and ­untranslated Annex 2 a­ ttestation form. Even if a notary is allowed by the law governing this aspect of his practice to complete the Annex 2 form in a foreign language, it is not necessarily the case that he will wish to attempt to communicate the nuances of his domestic evidence law in this manner. It is thus possible that a translation of both the authentic instrument and the Annex 2 form may be necessary for Article 59 to operate properly, there is however no power in the Regulation to require this of the presenter of the authentic instrument.110 A further point is that it seems to be assumed that the presenter of the authentic instrument who has sought an Annex 2 form must thereafter present it in the Member State of enforcement. There is in fact no such obligation upon the presenter under the Regulation. An unscrupulous presenter may prefer to ‘chancehis-arm’ by trying to secure a given evidential effect via the authentic instrument by not presenting an Annex 2 form that he had requested but now finds to be obstructive of his intention to secure that evidential effect in the Member State of enforcement.

110 Though an authority in the Member State of enforcement may extract some clarity from a comparison of a completed untranslated foreign Annex 2 form with a blank Annex 2 form in the language of the Member State of enforcement, it can hardly be advisable to seek to deduce the meaning of precisely expressed verifications going to evidential effects in this manner.

Authentic Instruments in the Succession Regulation  421

i.  The Annex 2 Form and the Scope and Nature of the Evidentiary Effects The function of the Annex 2 form for Article 59 is to provide the authorities in the Member State of enforcement with information concerning the evidential effects of the authentic instrument in the Member State of origin. As the cross-border evidential effects of authentic instruments relevant to Article 59 are restricted to the evidential effects pertaining to the facts that the notary (or other public authority) can properly verify according to his (its) domestic legal system and are then restricted further to those have been so verified in the specific authentic instrument, it follows that each incoming Article 3(1)(i) authentic instrument must be examined to determine which evidentiary effects are claimed in connection with the actual verifications it contains and to establish how such evidential effects may be conferred or accommodated via Article 59 in the Member State of enforcement. In truth the individual authentic instrument must always be examined, even if an Annex 2 Form II is provided, to understand the evidential effects and evidence particular to that authentic instrument. To assist this process of understanding in the Member State of enforcement the evidentiary effect of the evidence in Member State of origin, question 4 of the Annex 2 form first asks for an indication that Article 59 acceptance is sought and then, assuming ‘yes’ is indicated by ticking 4.1.1, proceeds via question 4.2 to set out the most common matters concerned by the potential evidentiary effects associated with an authentic instrument concerning a matter of succession in the Member State of origin and requires111 the completing authority (eg a notary) to indicate that such an evidentiary effect exists in connection with the presented authentic instruments from his legal system. For the first six boxes this is indicated by ticking those boxes that correspond with the verified facts benefitting from the enhanced evidentiary effect(s) associated with the authentic instrument that the Annex 2 form will accompany. A final box at 4.2.1.1.7 is labelled ‘other’ and requires the completing authority shall indicate any unusual fact also benefitting from an enhanced evidentiary effect that was not already listed above (or possibly it may be used to provide brief additional information concerning one of the previous ‘tick-boxes’ concerning evidentiary effects). Question 4.2.2 allows the authority to indicate when and how the authenticity concerning the matters in 4.2.1.1.1–4.2.1.1.7 will be lost; question 4.2.3 requires the authority to indicate whether to his knowledge the authenticity of the matters listed in 4.2.1.1.1–4.2.1.1.7 is being (or has been) challenged in the Member State of origin. Question 4.3 concerns the legal acts or relationships set out in the authentic instrument in so

111 The use of the asterisk on the form indicates that the duty to provide the information is mandatory. Hence the information is notionally required; the consequences of not providing such information are however unclear.

422  Succession, and Property Regulations far as they relate to its instrumentum, while question 5 concerns other information and is directed to the question of whether that authentic instrument is a valid document to record matters in domestic property registers. Before discussing the constituents of question 4.2 it seems sensible to recap that the nature of the domestic evidential effect that most commonly applies to an authentic instrument is that any fact that the notary can properly verify and has so verified is, from the point at which the authentic instrument was drawn-up or registered, presumed by the legal system in the Member State of origin to be a proven fact and hence may be relied upon by being adduced in that legal system without requiring any further proof of the truth of the verified fact(s). This does not of course mean that a foreign public official who drew-up a foreign authentic instrument that now concerns a matter of succession in a different Member State has already determined the outcome of the dispute before it even occurred; what it means is that in such a situation the foreign authentic instrument can be adduced as evidence as it stands and without having to prove the truth of everything that the public official certified to have been true as at the date on which it was registered or drawn-up. Such an evidential presumption of assumed prior proof concerning the given fact is necessarily capable of rebuttal and or challenge via whatever possibilities are offered in the Member State of origin, the burden of undertaking such a rebuttal or challenge usually rests upon he who would dispute the verified fact(s)112 and questions 4.2.2–4.2.2.2 allow basic details relating this to be communicated to the authorities in the Member State of enforcement. Article 59 of the Succession Regulation seeks to extend the evidential effect of assumed prior proof of such officially verified facts contained in Article 3(1)(i) authentic instruments across Member State borders via its procedural conflict of laws rule titled as ‘acceptance’. Question 4.2 of the Annex 2 form lists different categories of facts that a notary or other authority in the Member State of origin may commonly verify to potentially allow those authenticated facts to benefit from the abovementioned evidential advantage of assumed prior proof to the extent that the notary or official has actually verified such facts to imbue them with authenticity once the authentic instrument in question has been drawn-up or registered: 4.2.1.1.1. the date the authentic instrument was drawn-up; 4.2.1.1.2. the place where the authentic instrument was drawn-up; 4.2.1.1.3. the origin of the signatures from the parties to the authentic instrument; 4.2.1.1.4. the content of the declarations of the parties; 4.2.1.1.5. the facts that the authority declares as having been verified in its presence; 4.2.1.1.6. the actions which the authority declares to have carried out and 4.2.1.1.7. ‘other’ 112 Unless in the unusual circumstance that the author notary intervenes to withdraw or qualify the evidential effect of the authentic instrument, eg on discovering impersonation has occurred.

Authentic Instruments in the Succession Regulation  423 The verified authenticated facts concerning date, place of drawing-up and signature origin mentioned by the first three paragraphs of question 4.2 are important but also conceptually clear: the same may be said of the facts verified via questions 4.2.1.1.5 and 4.2.1.1.6 which respectively establish which facts were declared to have been verified in the presence of the authority and that the actions which it declares to have carried out are presumed to have been so carried out. The reference to ‘the content of the declarations of the parties’ in the fourth indent is however worth brief comment. Question 4.2.1.1.4 refers only to the factual evidential point that the parties made the declarations and did so in the terms recorded by the notary: the authenticated evidence is thus always restricted to the instrumentum issue that the declarations were made and made in the recorded terms: question 4.2.1.1.4 does not authenticate the truth of the declarations either when made or subsequently, nor does it authenticate that the parties complied with the terms recorded. Still less does 4.2.1.1.4 prove, or seek to prove, the material validity of the relevant juridical act involved in the presented authentic instrument.113 When considered alongside the Annex 2 form and with regard to the drafting history of the Succession Regulation, Article 59’s extension of evidentiary effect via ‘acceptance’ is plainly not unlimited and was not intended to be unlimited. Despite 4.2.1.1.7 being described as ‘other’ on the Annex 2 Form, the facts upon which the authority may confer enhanced evidentiary effects upon in the Member State of origin are limited to those instrumentum related factual issues that the Member State of origin allows to be so verified: a notary cannot extend unilaterally the facts he may verify, nor by attempting to do so can he equip novel matters of fact with enhanced evidential status and effects. As a general rule the notary remains only able to verify the truth of that which he has personally witnessed; he will not wish to attempt to do more than this as not only would this be contrary to his professional standards, but it would also expose him to additional liabilities for which he is unlikely to be insured. Though a Member State may technically add a new matter of fact to those that its notaries may domestically verify in a given context,114 or may generally change the domestic evidentiary effects of its authentic instruments, these outcomes are most likely to be motivated by a wish to avoid or remove a notarial competence115 or to bring the verifiable facts (or possibly the challenge possibilities) of its

113 This being a matter of the negotium of the authentic instrument it is to be determined by the court with Succession Regulation jurisdiction via Succession Regulation applicable law provisions etc. 114 eg in 2016 it was reported that the Slovenian legal system, which to protect the court’s jurisdiction over matters of succession restricted the evidential effects of a notarially created will to the notary’s identification of the parties involved and the certification of their signatures, had previously sought (without at that time success) to extend further domestic evidential effects to its notarially created wills, 2016 EP Study (n 20) 30, fn16. 115 eg the recent decision in France not to allow a notary to act for both parties in a consensual divorce case and to shift notarial involvement to the end of the process at all times avoiding the creation of a notarial authentic instrument and instead preferring the issue of a notarial minute. See ch 7 on Brussels IIa bis above.

424  Succession, and Property Regulations authentic instruments more closely into line with those of comparable authentic instruments from other Member States: it is hence unlikely that truly new domestic evidentiary effects will be invented without good reason. The suggestions in the previous sentence result from a consideration of the answers received in the course of a 2016 Study for the European Parliament of cross-border evidentiary effects in the context of successions across the EU 25 (which benefitted from additional voluntary intervention and assistance from the CNUE and 15 notaries from different Member States who also completed the project questionnaire). The 2016 Study did not at that point reveal any unduly troublesome candidates for the 4.2.1.1.7 ‘other’ category and indeed the most common suggestion concerning the likely use of this box concerned its potential to provide additional information to clarify the meaning of the previous ticks applied by the notary or other authority in response to 4.2.1.1.1– 4.2.1.1.6 to prevent misunderstandings by the receiving authorities.116 Thus, the evidentiary effects that should be understood to be exported via Article 59 from the Member State of origin to the Member State of enforcement are those concerning the instrumentum and facts that the Member State of origin allows its authorities to verify via a domestic authentic instrument, classified as such by Article 3(1)(i), that have been so verified by the authority which drew-up or registered the authentic instrument in the Member State of origin. The mere fact of exporting this authentic instrument from the Member State of origin cannot however be assumed to guarantee that these evidentiary effects will then be applied in the proceedings in Member State of enforcement in precisely the same way as in the Member State of origin. The operation of the Article 59 procedural conflict of laws rule in the Member State of enforcement is not merely to give priority to the inherent evidentiary effects of the incoming Article 3(1)(i) authentic instrument because the actual cross-border effect are subject to: a) challenges in the Member State of origin; b) any necessary adaptation; and c) the potential application of the Article 59 public policy rule within the Member State of enforcement. The final factor affecting the actual cross-border relevance of Article 59 and the evidence in the presented authentic instrument concerns its interaction with the unamended procedural law of the Member State of enforcement untouched by Article 59’s procedural conflict of laws rule. In this context it should be remembered that despite the assumed prior proof of an incoming foreign authentic instrument, the relevant civil procedure law of the legal system of the Member State of enforcement must still evaluate that evidence according to its own civil procedure and evidence law. At a very basic level therefore a foreign authentic instrument cannot be expected to simply override conflicting and compelling evidence: it is obvious that a newer will potentially ‘trumps’ an older will with which it conflicts (despite the older will also being a foreign notarial will deemed an authentic instrument for the purposes of Article 59 and having been presented as such to the authorities in the Member State of enforcement).

116 2016

EP Study (n 20).

Authentic Instruments in the Succession Regulation  425

H.  Some Practical Problems with the Suspensive Effect of Member State of Origin The effect of a Member State of origin challenge to the authenticity/evidential effects of an authentic instrument as per Article 59(2) and recital 65 have already been set out. Such a challenge is intended to deprive the authentic instrument of its cross-border evidential effects for as long as the challenge is ‘pending’ in the Member State of origin: if the challenge succeeds the authentic instrument should be understood to lose its cross-border evidentiary effects granted to it by the Succession Regulation via Article 59. As the means by which Article 59 grants cross-border evidentiary effects to authentic instruments is via a procedural conflict of laws rule that operates in the Member State of enforcement, it follows that the suspension of these effects due to a Member State of origin challenge also suspends the operation of that conflict of laws rule. As noted above, it appears to follow that if the challenge ceases to be ‘pending’ in the Member State of origin, without having resulted in any determination of (in)validity, the evidential effect and the conflict of law rule will revive in the Member State of enforcement. This assumes that the authorities in the Member State of enforcement will know that there is, or has been, such a challenge to the authentic instrument in the Member State of origin and hence will know not to apply the Article 59 conflict of law rule to extend, or to continue to extend, the evidential effect of the authentic instrument while such a challenge is pending. How though are the authorities in the Member State of enforcement to know any such thing? The Annex 2 form provides a means by which a notary or other authority asked to complete the form can say at the time of completion of that form if there has already been a challenge or that one is ongoing. Even if the Annex 2 form were compulsory, which for Article 59 it is not, or could be required, which for Article 59 it cannot, this form will be of no utility on this point if the challenge occurs subsequent to the completion of the Annex 2 form. Indeed an out-of-date form may still be presented, whether in ignorance or with intent, but will then have the unfortunate effect on the out-of-date challenge status point of misrepresenting to the authorities in the Member State of enforcement a matter that, though correctly asserted at the date of the form, is no longer true: should this occur, the Article 59 conflict of law rule will operate when it should not do so and the evidential effects of the foreign authentic instrument will be extended when they should be suspended. The suspensive effect of the Member State of origin challenge envisaged in Article 59 appears to be vulnerable to such eventualities and to trust that either the presenter will keep the authorities in the Member State of enforcement up-todate, or that there will be another active party to the authentic instrument who by reason of an awareness of the proceedings in the Member State of origin will also do this. With respect, this ‘trusting’ approach allows a considerable potential for mistakes and misuse, particularly if the authentic instrument is presented in

426  Succession, and Property Regulations circumstances where only the presenter is involved. An unscrupulous presenter (or one who is unaware of the significance of the Member State of origin challenge) could present an out-of-date Annex 2 form to try to secure a given evidential effect in the Member State of enforcement to shift assets that he believes will assist his claim in contemplated succession proceedings. It equally seems to be assumed that if the presenter of the authentic instrument has sought an Annex 2 form, he must thereafter present it in the Member State of enforcement; there is however no reason for the party presenting the authentic instrument to do any such thing should if he finds the Annex 2 form is inconvenient in terms of its content.

I.  Article 59 Adaptation to Ensure Effectiveness Article 59(1) suggests that its procedural conflict of law rule may extend to require not merely the displacement of aspects of domestic procedural law in the legal system of the Member State of enforcement, but may also involve the legal system in the Member State of enforcement adapting its procedural law, if this is necessary, to allow the evidential effects the incoming authentic instrument derives from its Member State of origin to operate in the Member State of enforcement to allow that authentic instrument to produce ‘the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects’.117 The form of adaptation inferred from Article 59(1) is required to ensure that, absent a public policy infringement, the incoming authentic instrument shall replicate the ‘same’ or ‘most comparable’ evidentiary effects from the Member State of origin within the procedural law of the Member State of enforcement. As this form of adaptation is one that is connected with the general principle that the domestic procedural law in the Member State of enforcement must confer effectiveness to avoid its domestic procedural rules from rendering the rights conferred by primary or secondary EU law (such as Article 59 of the Succession Regulation) nugatory by reason of their unresponsiveness to foreign requirements, it follows that the adaptation will only be required when the legal systems in the Member State of origin and the Member State of enforcement are not aligned on the essential point of the evidential effects of the incoming authentic instrument. The most obvious reason for such a lack of alignment will arise if the authentic instrument is sent by one of the 22 Member States that feature authentic instruments as a domestic legal institution but is received by one of the three participating Member States (Cyprus, Finland and Sweden) that lack domestic (succession) authentic instruments: these recipients must be willing to adapt their domestic procedural rules to potentially allow the evidential effect of the incoming authentic instrument to operate as best it can in the legal system of presentation. 117 Art 59(1) para 1, my emphasis. Art 31 and recitals 16–17 recognise the possibilities of adaptation in the Regulation and clarify that this possibility is additional to, rather than in replacement of, domestic adaptive possibilities which are consonant with European laws and principles.

Authentic Instruments in the Succession Regulation  427 The most probable foreign evidential effect in such a circumstance will be what was referred to above as the assumption of prior proof of officially verified facts; though all EU legal systems could accommodate an aspect of the matter by treating given verified matters as already proven, it is a more complicated proposition to achieve an accommodation that reflects the points that the evidentiary effect is most likely to be a presumption of prior proof going only to matters of instrumentum that therefore should not be understood as a series of unchallengeable facts applying also to matters outside the scope of the instrumentum. With respect, the Annex 2 form could be more clearly drafted to distinguish between matters of instrumentum and negotium; it being preferable to point out the obvious rather than to assume that those unfamiliar with the distinction will understand it. Though it will probably occur less frequently, it is also possible for the respective legal systems to lack alignment because the Member State of origin’s legal system adopts a position concerning one or more of the evidential effects of its Article 3(1)(i) authentic instruments that is at variance with the laws of procedure and evidence of a Member State of enforcement that does domestically feature authentic instruments but does so in a different manner. The adaptive procedure is theoretically the same as sketched in the paragraph above, it will however not just involve gap-filling but rather something closer to true adaptation of the existing procedural and evidential rules in the Member State of enforcement.

J.  Article 59 Public Policy Exception The operation of the procedural conflict of laws rule contained in Article 59 is subject to a public policy exception that if triggered must – the Regulation discloses no discretion on the matter – prevent the Member State of enforcement from operating Article 59 to extend the infringing evidential effect or infringing effects from the presented authentic instrument into its legal system via this provision of the Regulation. This public policy exception is drafted in terms similar to the public policy exception contained in Article 34(1) of the Brussels I Regulation118 and thus the conferral of the evidentiary effects via a process that it describes as ‘acceptance’ in the title to Article 59 is not to proceed if this would be ‘manifestly contrary to public policy (ordre public) in the Member State concerned’. Given the textual similarities of this public policy exception with other public policy exceptions concerning cross-border procedures in other EU Regulations, it seems reasonable to presume that the guiding principles that govern the operation of those other public policy exceptions will also guide the operation of Article 59 118 See Case 145/86 Hoffmann v Krieg [1988] ECR 645 especially para 21, the Jenard Report at 44 indicating that the public policy exception is to be narrowly construed and applied, and Case C78/95 Hendrikman v Magenta Druck & Verlag GmbH [1996] ECR I-4943J at para 23. For a discussion of subsequent Brussels I Regime case law see J Fitchen, ‘Art 45(1)(a)’ in A Dickinson and E Lein (eds), The Brussels I Regulation Recast (Oxford, Oxford University Press, 2015) paras 13.268–13.296, 440–50.

428  Succession, and Property Regulations of the Succession Regulation. This presumption is however subject to certain differences between the public policy exceptions concerning the cross-border recognition or enforcement of a judgment or even the cross-border enforcement of an authentic instrument under a different EU Regulation. One such difference is that unlike most comparable EU Regulations, the Succession Regulation does not, in the context of allowing a cross-border effect to occur, forbid a révision au fond or review as to the substance for an incoming authentic instrument. Were there such a prohibition it would be impossible to apply Article 59 and hence Article 41 of the Succession Regulation is not applied to this provision.119 The lack of such a familiar prohibition means that the authentic instrument presented for Article 59 ‘acceptance’ may be examined somewhat more thoroughly in the Member State of enforcement than an Article 3(1)(g) decision to establish, inter alia, whether ‘granting’ a given foreign evidential effect is possible without infringing domestic public policy.120 If a public policy issue of sufficient gravity would arise from the granting of a given foreign evidential effect, the consequence is that the incoming authentic instrument cannot benefit from the assistance of Article 59 on the issue(s) causing the public policy infringement(s). As however the Article 59 public policy exception is an exception, it requires a narrow construction: hence the presenter may still rely on Article 59 for any acceptance sought concerning non-infringing evidential effects associated with the presented authentic instrument and equally can rely on any other operative provisions of the Succession Regulation (eg Article 74’s abolition of inter se legalisation requirements among the participating Member States, the operation of which is not subject to a public policy exception) in the course of presenting his authentic instrument (and any Annex 2 form). Thus, though it may be that the Article 59 public policy exception prevents the transmission of a foreign evidentiary effect it is not inevitable that the foreign evidence considered as just evidence is therefore also inadmissible under the Regulation. Apart from the parts of the Succession Regulation that remain in operation because they are either not infringed, or like Article 74 are not infringeable, via public policy, the presenter who wishes to persist with attempting to communicate the evidentiary effect despite Article 59 having infringed the public policy of the Member State of enforcement may, at least in theory, proceed to attempt to produce a similar evidential effect via an attempted engagement of the foreign authentic instrument with whatever may be the domestic procedural/evidence 119 Art 41 is confined to ‘decisions’ and not applied to authentic instruments at all: its non-application to Art 60 being intentional and unambiguous (see discussion under Art 60 below). 120 Such an examination must not however itself involve the trespassing into the issues dealt with in Art 21 of the Charter, see Recital 58 of the Regulation, which includes the acceptance and enforcement of authentic instruments, explains that though courts and competent authorities dealing with a succession are allowed in exceptional circumstances to disregard certain provisions of foreign law if the application of those foreign provisions would be manifestly incompatible with their own public policy, such an application of the public policy exception cannot be invoked if it is based on discrimination contrary to Art 21 of the EU’s Charter of Fundamental Rights.

Authentic Instruments in the Succession Regulation  429 law of the Member State of enforcement. Whether such a course of action promises more than a chance for the earlier public policy issue to reoccur with similar effect, albeit potentially with a possibility of appeal not available under Article 59, must be open to doubt, but such a course of action will depend on the applicant’s motives and the domestic procedural law in the Member State of enforcement. The question of what in the context of an Article 59 application for ‘acceptance’ might be likely to infringe the public policy of a participating Member State is a matter that was central to the investigations carried out for the abovementioned Study into the cross-border evidentiary effects of authentic instruments in matters of succession carried out by the Law School of the University of Aberdeen over 2015–16 across the 25 participating Member States and with the kind assistance of the CNUE and 15 practising notaries.121 The questionnaire for this project sought to elicit information concerning both the current law (post-Succession Regulation) and the earlier law (pre-Succession Regulation) for any instances of refusal by a participating Member State legal system to receive a foreign succession relevant authentic instrument (or judgment) on the basis that the authentic instrument (or judgment) either was itself deemed to be contrary to domestic public policy, or contained a particular matter that was deemed contrary to public policy and therefore was not permitted exequatur. What had been expected was a small number of cases from those legal systems that featured strongly defended reserved shares in which the receipt of evidentiary effects from a foreign authentic instrument that by design or default would circumvent the domestic provisions concerning the reserved share would be refused by the venue in receipt of the foreign authentic instrument on the basis of a public policy infringement. In fact the responses indicated neither the existence of such a cache of case law nor even any practical experience of unreported examples of such issues arising. What was revealed was an absence of case law prior to the Succession Regulation and a range of speculative possibilities – mostly involving impermissible discrimination based on race, sex or religion – which the survey respondents thought might potentially infringe public policy and trigger Article 59’s public policy exception. Though it is always important not to confuse an absence of evidence with evidence of absence,122 the results and advice received suggested that the circumstances in which Article 59 public policy is most likely to be infringed will arise in unusual circumstances involving impermissible discrimination based on race, sex or religion. As the circumstances in which such matters can arise in connection with the conferral of a cross-border evidentiary effect by an incoming Article 3(1)(i)

121 2016 EP Study (n 20). 122 Factors that could not be eliminated in the course of the research may also have been involved, eg domestic provisions simply being applied to override the foreign authentic instrument; construing the foreign authentic instrument to only apply to foreign property; selective ‘pleading’ of the foreign documents; issues being concealed by agreements between parties or by the operation of non-contentious procedures.

430  Succession, and Property Regulations authentic instrument are likely to be very rare and unusual, even judged by the standard set by other forms of public policy infringement under other EU Regulations, it seems that the Article 59 public policy exception will, as is proper, rarely be able to be invoked with success in the Member State of enforcement. A final point concerns the possibility that a potential Article 59 infringement might be corrected by Article 59 adaptation. Though it is orthodox to proceed on the basis that the occurrence of a public policy infringement in the context of an EU Regulation that would otherwise confer a cross-border possibility or effect is, upon detection, fatal to that effect, it may be wondered whether this outcome must always follow for an Article 59 acceptance that proceeds via the operation of the procedural conflict of laws rule discussed thus far? The point is that an application of the Article 59 rule involves the authority in the Member State of enforcement considering the represented evidential effects of the authentic instrument and potentially how best to give effect to these evidential effects within its legal system: it may be that some authorities engaged in this process may be able to adapt an otherwise offending evidential effect to avoid the threatened breach of its domestic public policy.

K.  Cross-Border Enforceability of Authentic Instruments under the Succession Regulation: Article 60 Article 60 of the Succession Regulation allows the cross-border enforcement of an Article 3(1)(i) authentic instrument if it is enforceable in its Member State of origin at the point of application. For this potential enforceability to have crossborder effect, an interested party must apply to a court in a participating Member State of enforcement for an exequatur declaration that the authentic instrument is enforceable in that Member State of enforcement. This exequatur application by the interested party uses the procedures laid down in Articles 60 and 45–58. Because the Brussels I Regulation procedures were used as the basic model for the enforcement provisions of the Succession Regulation during its proposal and drafting phases, the enforcement procedures in Articles 45–58 are reminiscent of enforcement via the Brussels I Regulation. The cross-border enforcement of a succession authentic instrument works via an exequatur application process geared towards an expeditious decision to grant (or withhold) the exequatur that allows no public policy enquiry unless and until a contradictory appeal process is begun in the Member State of enforcement.123 As already mentioned, applications for cross-border enforcement via Article 60 of the Succession Regulation are unlikely to be as common as the number of instances in which Article 59 may be employed, because Article 60 applications are predicated on a narrowly-drawn view of enforcement that extends a domestic

123 See

discussion of Art 57 of the Brussels I Regulation above in ch 4.

Authentic Instruments in the Succession Regulation  431 quality of enforceability considered in terms of an obligation to pay or do that is somewhat atypical for authentic instruments as used in succession proceedings in most national contexts. Most such succession authentic instruments lack inherent domestic enforceability as this concept is understood in the Regulation to refer to an obligation or duty to pay or do: such enforceability is not usually domestically required for most of the authentic instruments that interact with the domestic operation of succession law which instead usually determine the destination of the deceased’s estate via its testate and or intestate succession laws. The atypical nature of such domestically enforceable succession authentic instruments emerged during the Regulation’s drafting process. It was noted that ‘of all the possible types of instrument which may be the subject of an authentic instrument in matters relating to succession, only those dividing a succession seem to be genuinely enforceable in nature, the other instruments being merely declaratory’.124 This limited sphere of application plus its comparatively uncontroversial cross-border enforcement potential undoubtedly contributed to draft Article 35’s stability during the drafting process. It is not however the case that what is now Article 60 is always simple to apply. Draft Articles 34 and 35, for all the heresies of the former, attempted to follow a pattern of recognition and enforcement that is familiar to private international law in the contentious context of judgments; it seems fair to infer that aspects of draft Article 34 were therefore originally intended to inform aspects of draft Article 35. The deletion of ‘recognition’ via draft Article 34 and the introduction of a new method of evidence transmission via Article 59’s procedural conflict of laws rule has however left the virtually unamended Article 35, now Article 60, bereft of any such assistance when a request is received for an exequatur declaration to permit the cross-border enforcement of a succession authentic instrument via Article 60 alone.

i.  Article 60 and Cross-Border Enforcement Though authentic instruments may be very important in the operation of certain succession procedures, this importance normally takes the form of providing evidence germane to the succession and reflecting competent declarations and agreements that the succession law allows to influence its operation. Within the Succession Regulation such cross-border evidence provision by authentic instrument will now tend to occur via the operation of Article 59’s procedural conflict of law rule (above). The more orthodox Article 60 route to enforcement is instead required if it is cross-border enforcement of an enforceable authentic instrument that is sought. Though it is conceivable that one authentic instrument could be presented that would involve both Article 59 acceptance and Article 60 enforcement, the two articles need not overlap at all on a procedural level as each gives effect to the evidence at hand independently and by a different method: the reader

124 Document

13510/10 of 1 October 2010 para 10, 3, my italics.

432  Succession, and Property Regulations must not assume that there is a relationship between Article 59 and Article 60 equivalent in even abstract terms to orthodox recognition and enforcement of decisions. This is confirmed by the organisation and drafting of the Annex 2 form found in Regulation 1329/2014. As Article 60 only concerns the cross-border enforcement of the smaller class of Article 3(1)(i) authentic instruments that have domestic enforceability, eg concerning the division of a succession (though possibly also concerning a testamentary contract),125 and only allows a fairly conventional cross-border enforcement potential conditional on an exequatur application, via a specified series of Regulation procedural articles, that withstands any public policy challenge raised later during Article 50 or Article 51 appeal proceedings, it follows a more orthodox route than Article 59 and hence can be summed up more succinctly. Article 60 1. 2.

3.

An authentic instrument which is enforceable in the Member State of origin shall be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58. For the purposes of point (b) of Article 46(3), the authority which established the authentic instrument shall, on the application of any interested party, issue an attestation using the form established in accordance with the advisory procedure referred to in Article 81(2). The court with which an appeal is lodged under Article 50 or Article 51 shall refuse or revoke a declaration of enforceability only if enforcement of the authentic instrument is manifestly contrary to public policy (ordre public) in the Member State of enforcement.

Article 60(1) refers the applicant to the procedures set out from Articles 45–58. Article 45(1) tells the applicant to submit his enforcement application to the court or other competent authority nominated earlier by the Member State of enforcement to the Commission under Article 78. Article 45(2) then presents the applicant with a free choice between two alternatives, either apply to the nominated court/other authority where the defendant is domiciled, or apply to any other ‘place of enforcement’, ie where the target assets are located. The domicile of the ‘defendant’ is, according to Article 44, established by considering the internal law of the legal system in the given Member State of enforcement.126 Articles 44 and 45 give the impression of having been designed for decisions rather than for authentic instruments. In practice it may be that the location of the target assets will more often be determinative for authentic instrument enforcement: a contentious legal procedure fixes a point in time from which to assess domicile (ie when the court became seised of the claim). If an authentic instrument is presented for 125 See H Mansel, ‘Art 60’ in Calvo Caravaca, Davi and Mansel (eds) (n 60), para 1, 664 attributing this suggestion via fn 2 to J Schmidt. 126 Such ‘domicile’ is expressly stated to be derived from the internal law, not the private international law, of the Member State legal system in question, A Metallinos, ‘Art 44’ in H Pamboukis, EU Succession Regulation 650/2012: A Commentary 1st edn (Oxford, Hart, 2017) 481, fn 4.

Authentic Instruments in the Succession Regulation  433 enforcement when is the domicile of the enforcement target relevant? The time of drawing-up is open to the objection that years may have gone by and the target may now genuinely have no other connection with that venue. Assuming there are no contentious proceedings, it is suggested that if the domicile route to jurisdiction via Article 45(2) is taken, the time of the presentation of the enforcement application offers the best temporal point of reference to establish domicile. Unlike Article 59, Article 60 requires that the authentic instrument must be and remain ‘enforceable’ in the Member State of origin from the time of the application to the Member State of enforcement. It need not have been enforced in the Member State of origin, but it must at least be enforceable in a technical sense in that original venue. Rauscher suggests that the enforceability in question refers to the ‘abstract formal enforceability’ conferred by the law of the Member State of origin on such a succession authentic instrument.127 The abstract and formal enforceability of the authentic instrument within its Member State of origin, as may be attested on any provided Annex 2 form, will normally suffice for the purpose of securing the Article 60 declaration of enforceability.128 In this sense there is no additional need for a domestic enforcement formula to be included in the authentic instrument if this is not a domestic requirement for its enforceability. If however the law of the Member State of origin does impose a requirement that such an additional clause or formula must be present to establish domestic enforceability, eg for a given type of property, this requirement must be demonstrated to have been complied with if the presented authentic instrument is to be deemed by the court in the Member State of enforcement to have surmounted the requirement in Article 60(1) that it be enforceable in the Member State of origin.129 If an Annex 2 form is produced this matter should be dealt with via answers to question 6.2–6.2.3.3. Normally the abstract formal quality of domestic enforceability should be demonstrated for the benefit of the authorities in the enforcement venue by the applicant producing not only an authentic copy of the relevant parts of the authentic instrument but also a suitably completed Annex 2 form (from Regulation 1329/2014) specifying the existence of domestic enforceability via question 6 and its subquestions. Securing a completed the Annex 2 form also assists the applicant in complying with Article 46(3) which requires that he produces an authentic copy of the relevant parts of the authentic instrument plus what Article 60(2) clarifies should be a completed Annex 2 attestation form issued by the authority that ‘established’ the authentic instrument, ie the notary who drew it up or the office that issued/registered it. Though an authentic copy of the enforceable authentic instrument must always be produced, the Annex 2 attestation form is not necessarily subject to such an 127 Rauscher (n 58) para 4. Wautelet takes a similar view, P Wautelet ‘Art 60’ in Bonomi and Wautelet (n 60) 751, para 5. 128 Wautelet (n 127) para 5. 129 ibid.

434  Succession, and Property Regulations absolute requirement: if no Annex 2 form is provided, Article 47(1) expressly allows the exequatur court three alternative options: a) to set a time for its production; b) to accept such equivalent evidence as satisfies it (the court) on this point; or c) to dispense with production. If options (b) or (c) do not suffice, the exequatur court may, by setting a time under option (a), insist on production of a suitably completed Annex 2 form prior to entertaining the application.130 Though the exequatur court may also via Article 47(2) require a translation of the Article 46(3) documents, it is otherwise required by Article 48, on the assumption that the applicant will have already complied with Article 46(3)’s requirements, to immediately render an exequatur decision once Article 46’s formalities have been complied with: it must then communicate its decision to the applicant via Article 49(1) and serve it on the enforcement target as per Article 49(2).131 If no Annex 2 form is produced by the applicant, the Article 60(2)/Article 46(3) (b) formality must still be resolved via Article 47(1). It is hence conceivable that the exequatur court may be persuaded to either apply Article 47(1)(b) and accept ‘equivalent evidence’ in place of the Annex 2 form or to instead apply Article 47(1) (c), whether immediately or subsequently, to allow the application to proceed merely on the basis of the presented authentic instrument and without any Annex 2 form or equivalent evidence. As was suggested above in connection to the discussion of the Annex 2 form in the context of Article 59, it is inadvisable to allow the possibility of an Article 60 application proceeding without requiring the applicant to produce a duly completed and up-to-date Annex 2 form that can assist proceedings in the Member State of enforcement. Complying with Article 46(3)(b) via Article 47(1), together with the expenditure of time necessary to produce any required Article 47(2) translation, may, as noted above, delay the point at which the exequatur court can entertain the application that must precede any Article 48 declaration. In the circumstance that an authentic instrument presented to the exequatur court under Article 60 contains several matters for such enforcement and the exequatur court cannot make a declaration for the entire authentic instrument, Article 55(1) requires that it shall grant a partial declaration for the parts that can receive one. Article 55(2) also allows the applicant to request exequatur only for specific parts of the authentic instrument. Appeals against the exequatur decision are possible via Articles 50–51 and serve the important purposes of allowing the enforcement target to become involved in the proceedings as well as allowing Article 60(3) public policy to become a competent issue for the first time in the exequatur application. According to Article 53 a court in the enforcement venue that is seised with an appeal under Articles 50–51 must, if the enforcement target so applies, stay its proceedings if the enforceability

130 If an authentic instrument is presented for an Art 60 declaration without an Annex 2 form it would be advantageous for it to feature express indications that it is domestically enforceable. 131 There can be no challenge brought to the exequatur declaration at this stage of the proceedings – any such matters must be brought during an Art 50 or 51 appeal.

Authentic Instruments in the Succession Regulation  435 of the ‘authentic instrument’132 is suspended in the Member State of origin by reason of an appeal proceeding in that venue which produces this domestic effect. There is however no ex officio ability for a court in the enforcement venue to stay exequatur proceedings without the prior application of the enforcement target: nor may a stay of such proceedings be granted on the basis of other factors, eg the commencement of a Member State of origin appeal that does not suspend domestic enforceability. The point is that though domestic challenges in the Member State of origin may deprive the authentic instrument of cross-border effects not every Member State of origin challenge can also justify suspending the Article 60 exequatur proceedings. Though the second sentence of Article 52 applies to authentic instruments as well as to decisions by requiring that the appeal decision be given without delay, the first sentence of Article 52 is textually problematic as it requires that the court hearing an Article 50 or Article 51 appeal shall only refuse or revoke a declaration of enforceability if an exception from the Article 40 list is present. This instruction conflicts with Article 60(3) and directs the court in the Member State of enforcement to the four decision appropriate exceptions to refuse recognition via Article 40(a–d) instead of the one base to refuse enforcement only allowed by Article 60(3). It is suggested that for authentic instruments Article 60(3) must be read to disapply133 the instruction in the first sentence of Article 52 to refer to Article 40, and that only the Article 60(3) exception to refuse or revoke the declaration of enforceability as manifestly contrary to public policy (l’ordre public) should be available in the Member State of enforcement.134 In support of this it may be noted that a narrower rather than a broader interpretation of exceptions is usual in such EU private international law contexts and further that Article 40 is not concerned with proceedings involving a declaration of enforceability (it concerns the grounds to resist the automatic recognition of decisions via Article 39). It is suggested that though reference to comment on the operation of the public policy exception in Article 40 may be illustrative, there is no basis to conclude from the instruction in Article 60(1) to refer to Articles 45–58 should via a reference to Article 40 in Article 52 sentence 1 override the Article 60(3) instruction that only a public policy exception shall be examined for enforceable authentic instruments presented via Article 60. Article 60(3) provides a precise indication of the relevant

132 The text of Art 53 refers to a ‘decision’ but it is submitted that in the context of Art 60 this use of decision must be interchangeable with an Art 60 authentic instrument. 133 Rauscher (n 58) para 8 appears to argue that Art 40 (Grounds for Non-Recognition) is of relevance as an indicator of the scope of the Art 60(3) public policy enquiry. It is difficult however to see that Art 40 can or should have any relevance in the present context given Art 60(3)’s explicit provision of only one exception (in similar manner to Art 59(1) in the context of public policy concerning acceptance) other than in so far as envisaged by Recital 66 to allow the resolution of incompatibility between a conflicting authentic instrument and a decision. 134 Mansel suggests that Art 40(b–d) must be disapplied, and so presumably means to leave Art 40(a) applicable, despite Art 60(3) re-formulating the public policy test to suit authentic instruments, Mansel (n 125) para 4, 666.

436  Succession, and Property Regulations public policy control of incoming foreign authentic instruments presented for cross-border enforcement that after receiving an exequatur are challenged in the Member State of enforcement on this point during subsequent Articles 50–51 appeals.135 It is clear from the text of the Regulation that in connection with authentic instruments subject to an Article 50 or Article 51 appeal, the court in the Member State of enforcement must consider the issue of Article 60(3) public policy compliance on an own motion basis. Recital 58 elucidates the permissible and the impermissible operation of the public policy exception in various contexts including cross-border enforcement, to warn that public policy exceptions must not be applied in a discriminatory manner by authorities or courts to infringe Article 21 CFREU; such a warning indicates that own motion examination of Article 60(3) public policy is required and must be undertaken properly in accordance with the Charter rights of the parties. Such an own motion public policy examination during the Articles 50–51 appeal procedures concerning Article 60 may involve the court in considering wider public policy issues in a proactive manner to reflect the fact that, unlike a public policy examination of a decision during its recognition stage, the examination of an authentic instrument for public policy compliance with Article 60(3) is (again) intentionally unconstrained by the Article 41 ban on a révision au fond that applies to decisions.136 The public purpose to the public policy control imposed upon incoming authentic instrument enforcement via Article 60(3) allows the Articles 50–51 appeal court to engage in an enquiry as wide-ranging as EU private international law continues to allow concerning a public policy infringement assessed from the perspective of the Member State of enforcement’s substantive or procedural values.137 It must however be stressed that for the purposes of Article 60(3) the alleged or threatened violation of public policy must be triggered by the prospect of the appeal court granting or continuing the initial exequatur declaration. If the court does not find that the granting or continuing of the declaration would itself trigger the Article 60(3) public policy exception, the Article 60(3) exception is not made out and the court must not use it to refuse or revoke the declaration of enforceability of a competent exequatur application: without this essential triggering there should be no refusal of exequatur due to Article 60(3) during an Article 50 or Article 51 appeal. Though a different breach of public policy may be relevant at a different stage of the cross-border succession proceedings, it also should not be 135 Though the enforcement of a decision also proceeds via an exequatur application, it does so without any public policy control at the point of enforcement; for a decision the public policy control occurs after the point of automatic recognition via Art 39 by the criteria indicated by Art 40(a–d). 136 Art 41 was not included in Art 60(1)’s reference to enforcement proceeding via Arts 45–58 and hence does not apply to the Art 60 authentic instrument enforcement procedure. 137 Presumably subject to a supervisory control by the CJEU analogous to its earlier pronouncements on the subject of its supervisory role in the context of the Brussels Convention in para 23 of C-7/98 Krombach v Bamberski EU:C:2000:164.

Authentic Instruments in the Succession Regulation  437 used to refuse the Article 60 exequatur application if it does not affect the grant of exequatur itself. Subject to any Article 50 or Article 51 appeal, once the exequatur application has been granted, communicated and served, the actual enforcement of the crossborder succession authentic instrument may begin in the enforcement venue. This actual enforcement is, as Article 2 of the Regulation makes clear, then subject to the enforcement venue’s domestic law: at this point wider non-Regulation notions of public policy and other non-Regulation factors associated with the cross-border enforcement of authentic instruments may become relevant.

L.  Incompatibility Arising After Article 59 or Article 60 Procedures have Concluded: Recital 66 The final Succession Regulation recital that merits attention is recital 66. It is the last of the dedicated recitals concerning the authentic instruments envisaged by Articles 59 and 60. It concerns issues of incompatibility from the perspective of the Member State of enforcement that arise ‘in the application’ of the Regulation concerning an authentic instrument and another authentic instrument or between an authentic instrument and a decision. Though as a recital it merely indicates the legislator’s intentions in the situation described, it seems useful to briefly consider it. The first two sentences of recital 66 concern incompatible authentic instruments, the final third sentence concerns incompatibility between an authentic instrument and a decision. It may be that the main point of recital 66 is to indicate to the Member State of enforcement that it is not intended merely to automatically prefer the incoming authentic instrument and may legitimately evaluate it in the context of the incompatibility of indicated outcomes.

i.  Two Incompatible Authentic Instruments It seems that the incompatibility must arise during the procedures of applying Article 59 or Article 60. Recital 66 contemplates only an incompatibility arising during the presentation of at least one incoming authentic instrument in the Member State of enforcement: the recital has no relevance to the Member State of origin. There is no definition of ‘incompatible’, but the recital indicates that incompatibility arises from the presentation of the authentic instruments which suggests that this is due to the operation of Article 59 or Article 60. Thus recital 66 may apply if either a foreign authentic instrument is presented that is incompatible with a domestic authentic instrument or if two incompatible foreign authentic instruments from different Member States are presented to the authority in the Member State of enforcement. As the Member State of enforcement cannot police the instrumentum of any foreign authentic instrument – this competence belongs to the respective Member

438  Succession, and Property Regulations States of origin – and is not otherwise equipped with a means of declining ­competent Article 60 applications, recital 66 indicates that the enforcement venue when faced with such incompatibility (eg concerning the evidential implications of the two presented authentic instruments or as an incidental question) is to ‘assess the question as to which authentic instrument, if any, should be given priority, taking into account the circumstances of the particular case’. If this approach does not resolve the incompatibility, the recital advises that the matter be assessed by a court with jurisdiction under the Regulation. Recital 66 also may apply to the outcome of the Article 60 enforcement process if two incoming authentic instruments each receive an exequatur that raises such an incompatibility, the recital indicates the same responses by the Member State of enforcement – assess the question of which authentic instrument, if any, should be given priority, on the facts and if this fails, refer the matter to a court with jurisdiction under the Regulation – which may be useful advice given that the Member State of enforcement has no Regulation competence to refuse an incoming Article 60 application on the basis that to do so would conflict with another exequatur already pronounced and may also not refuse to enforce because of a conflict. If the incompatibility between the two authentic instruments arises because one or both when presented in the Member State of enforcement leads to an Article 59 evidential effect of one clashing with the Article 60 enforceability of the other, recital 66 indicates the same procedure: assess the question of which authentic instrument, if any, should be given priority on the facts, and if this fails, refer the matter to a court with jurisdiction under the Regulation.

ii.  Incompatibility between an Authentic Instrument and a Decision The third sentence of recital 66 is a somewhat mysterious inclusion, it concerns an ‘incompatibility between an authentic instrument and a decision’. This may initially strike the reader as intrinsically implausible, given that in the domestic context authentic instruments are normally understood to ‘give way’ to decisions/ judgments: this however is the point, the third sentence legitimises considering the implications of the incompatibility rather than automatically dismissing the authentic instrument without consideration. It must also be remembered that as well as the possibility of an incompatibility arising in the Member State of enforcement between an incoming authentic instrument and a domestic decision (or possibly vice versa)138 the Member State of enforcement may instead be faced with an authentic instrument from one Member State and a decision from another Member State. In either case incompatibility presumably refers to incompatibility

138 It not being clear that it is legitimate for the operation of recital 66 for the Member State of enforcement to regard its domestic authentic instruments as Art 3(1)(i) authentic instruments under the Regulation.

Matrimonial Property and Registered Property Regulations  439 of indicated outcomes concerning the decision/judgment and the authentic instrument post-Article 59 or Article 60 as applied by the authority in the Member State of enforcement. To resolve all such incompatibilities the recital advises only that ‘regard should be had to the grounds of non-recognition of decisions under this Regulation’. This reference back to Article 40(a–d), which enumerates the exceptions ­justifying the non-recognition of a decision, presumably means that the incompatibilities envisaged in the context of two incompatible decisions may also legitimately be explored if the incompatibility involves one decision and an authentic instrument. There is however no indication of how, after an incompatibility has been noted, it is to be resolved. The Article 40(b–d) exceptions have no connection to authentic instruments (only Article 40(a) is similar to the Article 59(1) and Article 60(3) public policy exceptions for authentic instruments) and Article 41 forbids any révision au fond concerning the recognition of an incoming decision. It could be that the last observation indicates that the final sentence of recital 66 is mainly intended to extend the text of Article 40(a–d) to deal with a conflict/ incompatibility between a foreign authentic instrument and a domestic decision in the Member State of enforcement. Such a domestic decision would not already be subject to Article 40(a–d), thus to apply recital 66 in this fashion would potentially introduce a somewhat more consistent common approach to incompatibility issues between domestic decisions and foreign authentic instruments. If the last suggestion is correct, recital 66 is of no use if the incompatibility is between a foreign decision and a foreign authentic instrument when each is presented in a third participating Member State. The better view is therefore suggested to be that the recital is also intended to allow the Member State of enforcement to employ the Article 40(a–d) exceptions in relation to the incompatibility despite only one ‘decision’ technically being at issue. Thus, for this limited purpose recital 66 could be understood to authorise extending the exceptions to the recognition of a decision from Article 40(a–d) to its incompatibility with the foreign authentic instrument. Though this approach may lead to the familiar outcome that in a domestic context sees the evidential relevance of an authentic instrument giving way to the final determination of a judgment, it could just as easily see the authentic instrument (or parts of it) prevail over the judgment. With respect, the third sentence of recital 66 appears ripe for referral to the CJEU via a preliminary reference application.

III.  Matrimonial Property and Registered Property Regulations A. Introduction It became plain by the time of a meeting held on 3 December 2015 that the Council could not secure the unanimity for it to proceed via a Regulation based

440  Succession, and Property Regulations on Article 81 TFEU. The plan for a Regulation covering matrimonial property and registered partnerships could thus only proceed to legislation by enhanced cooperation via Article 328(1) TFEU. As recital 11 of each of the resulting 2016 Regulations makes plain, the Member States who wished to participate in enhanced cooperation notified the Commission of this wish. Proposals were issued by the Commission in March 2016; on 9 June the Council adopted Decision (EU) 2016/954 to permit enhanced cooperation for these measures.139 What resulted were two nearly identical Regulations: Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes;140 and, Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships.141 As far as authentic instruments are concerned, each of these 2016 Regulations apply the same private international law provisions to its nominated subject matter with only small deviations between the numbering of the provisions of each Regulation: the terms and nature of the authentic instrument provisions having already been determined by the decision to employ the authentic instrument provisions of the Succession Regulation in these contexts too. Due to this decision142 to ‘cut’ the authentic instrument provisions from the Succession Regulation and then to ‘paste’ them, together with most of their satellite articles and recitals,143 into the two 2016 Regulations it is possible to consider the authentic instrument provisions of the 2016 Regulations in an expedited manner.144 Equally, in the context of a book concerning authentic instruments it is unnecessary to weary the reader by repeating the entirety of the detail offered above concerning authentic instruments in the Succession Regulation; the coverage in the second part of the chapter is thus more skeletal than in part one and often refers the reader back to the detail and justifications provided in the context of successions.

139 Regulation 2016/1103 recitals 10–12. 140 OJ L 183, 8 July 2016 p 1. 141 OJ L 183, 8 July 2016 p 30. 142 Discussed in s II above. 143 Despite some re-numbering and the inevitable deletion of references to succession, the Art 3 definitions remain essentially identical for authentic instruments and so are many of the recitals that seek to clarify the intended operation of the authentic instrument provisions. 144 Other commentators have noted this similarity and some provide a detailed commentary for Regulation 2016/1103 with cross-references to Regulation 2016/1104: see U Bergquist, D Damascelli, R Frimston, P Lagarde and B Reinhartz, The EU Regulations on Matrimonial Property and Patrimonial Property 1st edn (Oxford, Oxford University Press, 2019) (hereafter, Oxford Commentary) and C Mayer, Münchener Kommentar zum FamFG, Volume 2, 3rd edn (Munich, CH Beck, 2019).

Matrimonial Property and Registered Property Regulations  441

B. Scope The temporal and subject matter scopes of the 2016 Regulations necessarily differ from those of the 2012 Succession Regulation.

i.  Temporal Scope From 29 January 2019 the two 2016 Regulations apply in full as far as their original participants are concerned.145 Any later participants, joining via Article 331(1) TFEU, will apply the relevant Regulation from the date indicated within the Decision authorising their participation.146 The effect of the two 2016 Regulations on matrimonial property and registered partnership property agreements differs from the temporal application of the Succession Regulation concerning existing wills and related agreements. As the 2016 Regulations do not concern an ambulatory will and do not necessarily hinge on an inevitable future event such as the death of the testator, but instead apply to an area of law that may already feature earlier and operative agreements with important existing domestic and extra-territorial effects147 the 2016 Regulations do not disapply earlier agreements on either matrimonial property or registered partnership property: Article 69(1) states: ‘This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019’. Thus, if the matrimonial/registered partnership property agreement was included in an authentic instrument drawn-up prior to 29 January 2019 it is prima facie not subject to either 2016 Regulation. Equally, a pre-29 January 2019 choice of law by the parties to a matrimonial property agreement prima facie has no effect under the 2016 Regulations.148 If the parties to a pre-29 January 2019 authentic instrument concerning a competent property agreement (or its choice of law clause) desire to bring it within the temporal scope of one of the 2016 Regulations it is necessary for them to renew and ‘republish’ the agreement (in so far as this is possible under Article 22 of the 2016 Regulation)149 on or after 145 Belgium, Bulgaria, Cyprus, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden. 146 If Estonia decides to participate, the date of application will be included in the Decision on this participation. 147 Tax planning between couples being one obvious matter not to accidentally disturb by applying the Regulations in a blanket fashion prior to 29 January 2019. Another consideration was not to disturb prior arrangements under the Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes. 148 Art 69(3). 149 The liberty concerning a choice of law under the Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes is greater than under Art 22(1) of the 2016 Regulation: further, Art 22(2–3) prevents any retroactive choice of law from prejudicing the rights of third parties, Lagarde in Oxford Commentary (n 144) 12 and 101. Thus, redrafting may be required to effect any such ‘republication’ of an earlier matrimonial property agreement under Regulation 2016 1103.

442  Succession, and Property Regulations 29 January 2019 with the intervention of the notary or other public official who drew up or registered it. Pre-29 January 2019 authentic instruments are otherwise seemingly irrelevant to the operation of the 2016 Regulations150 unless ‘proceedings’151 instituted in the Member State of origin before 29 January 2019, in compliance with the jurisdictional provisions of Chapter II of the 2016 Regulation, lead to a decision capable of recognition and enforcement via Chapter IV: if this should occur, Article 69(2) can be considered to allow aspects of the material component of a pre-29 January 2019 authentic instrument concerning a competent property agreement to have a transitional relevance in so far as it is now constituted in a judgment that can be recognised and enforced as a judgment under the 2016 Regulations.

ii.  Subject Matter Scope The subject matter scope of Regulation 2016/1103152 is specified by Article 1(1) to apply to ‘matrimonial property regimes’ and by the first sentence of recital 18 to apply to civil law aspects of ‘matrimonial property regimes’: unsurprisingly, the concept of a matrimonial property regime under the Regulation is then described in the second sentence of recital 18 as having an autonomous meaning that extends to: encompass not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law. It includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any property relationships, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship, or the dissolution thereof.153

Mayer speculates that Regulation 2016/1103 will mainly encompass: notarial marriage contracts, related notarial agreements eg agreements on a given form of community of property, agreements to transfer real property (ie the matrimonial home) or to distribute household effects, and matters that the Member State of origin deputes to notaries or analogous public officials (ie a notarial inventory, information relating to given assets, agreements affecting the ability of one party to 150 Even in the circumstances of authentic instrument incompatibility envisaged respectively by recital 63 of Regulation 2016/1103 and recital 62 of Regulation 2016/1104 – discussed at the end of each part of this chapter – it is suggested that it is incompatibility between authentic instruments included within the scope of each Regulation that is contemplated. 151 It is suggested that only contentious litigation can in this contest constitute ‘proceedings’ for Art 69(2) as both recognition and enforcement via Chapter IV are stipulated. 152 Mutatis mutandis the provisions of Regulation 2016/1104 are identical, see Art 1(1) and recitals 17 and 18. 153 Recital 18 provides in its first sentence, ‘The scope of this Regulation should include all civil-law aspects of matrimonial property regimes, both the daily management of matrimonial property and the liquidation of the regime, in particular as a result of the couple’s separation or the death of one of the spouses’.

Matrimonial Property and Registered Property Regulations  443 claim by excluding or facilitating this possibility).154 Mutatis mutandis this suggestion can be applied to the most probable uses of Regulation 2016/1104. Article 1(1) of either Regulation excludes revenue, customs or administrative measures from its scope. Article 1(2) then excludes various specific matters from the Regulation’s subject matter scope. Recital 19 links these exclusions to the need for legal clarity and recitals 21–28155 provide further elucidation of the drafters’ intentions concerning these exclusions, the excluded matters of Article 1(2) are: the legal capacity of spouses;156 the existence, validity or recognition of a marriage;157 maintenance obligations;158 the succession to the estate of a deceased spouse;159 social security; the entitlement to transfer or adjustment between spouses, in the case of divorce, legal separation or marriage annulment, of rights to retirement or disability pension accrued during marriage and which have not generated pension income during the marriage;160 (g) the nature of rights in rem relating to a property;161 (h) any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.162 (a) (b) (c) (d) (e) (f)

These exclusions are intended to prevent the 2016 Regulations from: clashing with other EU Regulations; accidentally intruding into matters of substantive law (particularly but not exclusively) in the Member State of enforcement; and, from destabilising the domestic registration requirements of the participating Member States. In a manner reminiscent of the Succession Regulation, Article 2 of each Regulation confirms that the competence of the authorities of the Member States to deal with matters of matrimonial/registered partnership property regimes is not to be affected by the relevant 2016 Regulation.

C. Definitions The definition provisions of the 2016 Regulations, in common with the ­equivalent provisions of the Succession Regulation, are found in Article 3(1). 154 Mayer (n 144) Art 58, para 9. 155 Recitals 20–25 and 27–28 in Regulation 2016/1104. 156 Recital 20. 157 Recital 21. Recital 17 also clarifies that no definition of marriage is provided by the Regulation and that this definition must be found in the law of the relevant Member State. 158 Recital 22, see Regulation 4/2009 discussed in ch 6 above. 159 Recital 22, see Regulation 650/2012 discussed in part 1 of this chapter above. 160 Recital 23. 161 Recitals 24–26. 162 Recitals 27–28.

444  Succession, and Property Regulations In Regulation 2016/1103, Article 3(1)(a) defines a ‘matrimonial property regime’163 as referring to ‘a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution’, and Article 3(1)(b) defines a ‘matrimonial property agreement’ as ‘any agreement between spouses or future spouses by which they organise their matrimonial property regime’.164 In Regulation 2016/1104, Article 3(1)(a) defines a ‘registered partnership’ as ‘the regime governing the shared life of two people which is provided for in law, the registration of which is mandatory under that law and which fulfils the legal formalities required by that law for its creation’165 and Article 3(1)(c) defines a ‘partnership property agreement’ as ‘any agreement between partners or future partners by which they organise the property consequences of their registered partnership’.166 Each Regulation then offers an identical definition of authentic instrument, via Article 3(1)(c) for Regulation 2016/1103 and via Article 3(1)(d) for Regulation 2016/1104: this definition is essentially identical with the definition in Article 3(1)(i) of the Succession Regulation and hence also lacks any overriding requirement of domestic enforceability for the authentic instrument to produce any cross-border legal effect.167 ‘authentic instrument’ means a document in a matter of a matrimonial property regime which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which: (i) relates to the signature and the content of the authentic instrument; and (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin …168

Though there is no blanket requirement of domestic enforceability for such authentic instruments, they must fall within the material scope of either Regulation 2016/1103 or 1104: Mayer notes that if what is sought in relation to an authentic instrument is not within the relevant subject matter scope of these Regulations it may still potentially be presentable under Regulation 2016/1191.169 As in the Succession Regulation, though the authentic instrument must be drawnup in ‘a Member State’, this notion is presumably to be restricted to the Member States participating in the enhanced cooperation for each of the 2016 Regulations. 163 Art 27 lists matters included in this definition see Reinhartz, para 3.02 and Lagarde, para 27.01–27.19 in Oxford Commentary (n 144) 40 and 119–22. 164 Art 25 and recitals 47–48 assist in understanding this definition see Reinhartz, paras 3.09–3.12 and Lagarde, paras 25.01–25.06 in Oxford Commentary (n 144) 41–42 and 109–10. 165 See Reinhartz, para 3.02 in Oxford Commentary (n 144) 280. 166 See Reinhartz, para 3.04 in Oxford Commentary (n 144) 281. 167 Thus, an unenforceable but otherwise qualifying authentic instrument can be presented under Art 58 for ‘acceptance’ via either Regulation, Mayer (n 144) Art 58, para 7. 168 Art 3(1)(c) for Regulation 2016/1103 and Art 3(1)(d) for Regulation 2016/1104, see Reinhartz, paras 3.13–3.16 in Oxford Commentary (n 144) 43–44. 169 Mayer (n 144) Art 58, para 8 referring to Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 OJ L 200, 26.7.2016, pp 1–136.

Matrimonial Property and Registered Property Regulations  445 Such a restriction is suggested by the fourth sentence of recital 13 (also by common sense as otherwise the participants in enhanced cooperation would be obliged to receive, accept and enforce incoming authentic instruments from non-participant Member States on a unilateral rather than reciprocal basis).170 As the 2016 Regulations were achieved via enhanced cooperation it follows that other non-participating Member States may later seek to participate via Article 328(1) TFEU; care will be needed to ensure that the relevant 2016 Regulation applied in a temporal sense to the authentic instruments presented when any such ‘newly participating’ Member State is the Member State of origin. Article 3(1)(d) of Regulation 2016/1103 defines a ‘decision’ as ‘a decision given by a court of a Member State’;171 then Article 3(2) addresses the definition of the term ‘court’ in a manner equally reminiscent of the Succession Regulation, ie it also refers to the possibilities of other legal professionals (eg notaries) being equipped with the domestic competence to act in a judicial capacity as a ‘court’ if the provisions of Article 3(2) are complied with.172 Article 3(2) also imposes an obligation on the Member States to notify the Commission via Article 64 of any other authorities and legal professionals capable of being classified as courts under Article 3(2).173 On this point the reader is referred back to the discussion of Article 3(2) of the Succession Regulation and CJEU case law presented in part 1 of this chapter. As in the Succession Regulation, the two 2016 Regulations offer the holder of an Article 3(1)(c) authentic instrument the possibility of seeking either crossborder ‘acceptance’ or cross-border ‘enforcement’ of that authentic instrument in the Member State of enforcement: as previously under the Succession Regulation ‘acceptance’ and ‘enforcement’ are not interdependent, there is no need for the ‘enforcement’ to be preceded by ‘acceptance’. Also there is no possibility in either of the two 2016 Regulations for the cross-border recognition of an Article 3(1) defined authentic instrument: only an Article 3(1) defined ‘decision’ may be recognised.174

170 Recital 13 sentence 4, ‘This Regulation should be binding in its entirety and directly applicable only in the Member States which participate in enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships, by virtue of Decision (EU) 2016/954, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) TFEU’. My italics. 171 Art 3(1)(e) for Regulation 2016/1104; in both cases this is presumably to be understood in light of recital 13 sentence 4. 172 The expected roles of notaries and other non-judicial authorities, who may be deemed ‘courts’ under Art 3(2) is set out by recitals 29–30 of Regulation 2016/1103 in terms that reflect recitals 20–22 of the Succession Regulation. 173 See discussion of WB (n 66), discussed under Art 3(2) of the Succession Regulation in part 1 above. 174 This follows from the abandonment of the oxymoronic ‘authentic instrument recognition’ during the drafting of the Succession Regulation: despite the irritation caused to some by having lost this argument, any attempt to reintroduce such deliberately discarded notions would be entirely illegitimate to the drafting and purposes of the 2016 Regulations.

446  Succession, and Property Regulations

D. Acceptance For Regulation 2016/1103 the ‘acceptance’ of an authentic instrument containing a matrimonial property agreement or relating to a matter concerning a matrimonial property regime is set out by Article 58 in terms identical175 to Article 59 of the Succession Regulation. This continuity is continued by recitals 57–63 that, but for an edit to recital 60 of the 2016 Regulation, mirror the text of recitals 60–66 of the Succession 2012. Subject to the different subject matter of Regulation 2016/1104 the Registered Partnership Property Regulation also follows this approach. Article 58 Acceptance of authentic instruments 1. An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned. A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 67(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin. 2. Any challenge relating to the authenticity of an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce any evidentiary effect in another Member State for as long as the challenge is pending before the competent court. 3. Any challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged for as long as the challenge is pending before the competent court. 4. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument in matters of matrimonial property regimes, that court shall have jurisdiction over that question.

Given the unambiguous decision to transpose the authentic instrument provisions determined for Articles 59 and 60 of the Succession Regulation to each of the 2016 Regulations, and the essentially identical text and recitals across each Regulation, it is clear that the evidentiary effects of any authentic instrument f­ alling within the temporal and subject matter scope of the relevant 2016 Regulation are intended to be transmittable (assuming no public policy problems) across the borders 175 The only difference in the Articles is that Art 58(1) of each 2016 Regulation cross refers to Art 67(2) – the equivalent of Art 81(2) of the Succession Regulation.

Matrimonial Property and Registered Property Regulations  447 of participating EU Member States via the same concept of ‘acceptance’ set out earlier by Article 59 of the Succession Regulation. The reader in search of detail concerning such ‘acceptance’ is thus referred to the discussion of the concept in the context of Article 59 in the first part of this chapter. What is now provided is a brief outline of ‘acceptance’ in the context of Article 58 of Regulations 2016/1103 and 2016/1104. Acceptance in Article 58 describes the means by which the a­uthenticity, evidential effects and formal validity of the authentic instrument from the ­ Member State of origin (its instrumentum but not its negotium) relating to the subject matter of the relevant 2016 Regulation are intended to be transmitted from one Member State participating in that enhanced cooperation measure to the legal system of a participating Member State of enforcement.176 The juridical act in question that is presumed to be contained in the authentic instrument, and its presumed material validity, comprise the negotium of the authentic instrument which though ‘transported’ in some senses by the authentic instrument in fact produces its cross-border legal effects in the Member State of enforcement via the application of the private international law and conflict of laws rules pertinent to the juridical act at issue.177 Article 58 describes a procedural conflict of laws rule178 which the Member State of enforcement is required to apply to the incoming authentic instrument to attempt to allow the formal evidential effects of the instrumentum of that incoming authentic instrument to be replicated in its legal system either with identical evidential effect for the matters comprising the instrumentum of the authentic instrument or with the most comparable effect, save when allowing such acceptance by the operation of the procedural conflict of law rule would itself be contrary to the public policy (l’ordre public) of the Member State of enforcement. Assuming there to be no public policy violation, the operation of the Article 58 procedural conflict of laws rule is, from the perspective of the legal system in the Member State of enforcement, such that the procedural rules concerning the evidential effects of the instrumentum of the incoming authentic instrument are to be understood with reference to the procedural/evidence law of the Member State of origin179 which, on this point and in this sense only, are intended to potentially displace the application of the domestic procedural rules of the legal system of the Member State of enforcement. Thus if a qualifying authentic instrument from participating Member State ‘A’ is presented in participating Member State ‘B’, Article 58 is intended to mean that Member State ‘B’ will normally allow the domestic evidentiary effects of that incoming authentic instrument concerning its instrumentum to also apply in Member State ‘B’s’ legal system(s) despite Member



176 For

1103 recital 59; for 1104 recital 58. 1103 recital 60; for 1104 recital 59. Mayer (n 144) Art 58, para 3. 178 Mayer (n 144) Art 58, para 2. 179 For 1103 recital 58; for 1104 recital 57. 177 For

448  Succession, and Property Regulations State ‘B’s’ legal systems having different domestic procedural rules concerning the evidentiary effect of such an authentic instrument. Article 58 is intended to extend formal evidentiary effects from the legal system of the Member State of origin to the legal systems of other participating Member States when presented for this purpose by an interested party; the Article serves this purpose regardless of whether those effects are ‘stronger’ or ‘weaker’ than those of the Member State of enforcement. Thus, if compared to Member State ‘A’, Member State ‘B’ normally applies additional evidentiary effects to its domestic authentic instruments these effects should not be applied to the incoming authentic instrument from Member State ‘A’ when it is presented in Member State ‘B’. Article 58 also applies if participating Member State ‘B’ either lacks a given evidentiary effect that is present in the legal system of Member State ‘A’, or, lacks any such procedural rules concerning authentic instruments because its legal system does not feature authentic instruments. In either eventuality Member State ‘B’ is required by Article 58(1) to attempt to allow the evidentiary effects of the instrumentum of the incoming authentic instrument to produce the most comparable domestic evidentiary effects in its legal system: depending on the direction of differences between the two legal systems the operation of this requirement may necessitate a limited form of adaption by the legal system of Member State ‘B’ to avoid its procedural rules accidentally depriving he who presents a competent authentic instrument of the cross-border evidentiary effects the Regulation would facilitate by transmitting its authenticity and instrumentum via the procedural conflict of laws rule in Article 58. It must however be stressed that the Article 58 acceptance of formal foreign evidentiary effects does not extend or justify the substantive domestic evidentiary effects of the presented authentic instrument, it is only the procedural evidentiary effects that can be transmitted across borders by Article 58.180 Thus though Article 58 can reverse a burden of proof to favour the presenter of the foreign authentic instrument it cannot compel the courts in the Member State of enforcement to reach the same conclusion on the meaning and value of the evidence contained within that authentic instrument as would a court in the Member State of origin: the evidence in an authentic instrument remains evidence that must be construed in the Member State of enforcement according to its laws of procedure and evidence to reach material evidentiary conclusions. The relevant authority in receipt of the authentic instrument in the Member State of enforcement may be assisted in understanding the precise nature of the evidentiary effects associated with the instrumentum of the authentic instrument in the Member State of origin if the presenter chooses to additionally provide it with an Annex II form from the appropriate Commission Implementing Regulation.181 180 Mayer (n 144) Art 58, para 14. Damascelli’s comments on this point seem a little more ambivalent Damascelli, Art 58 in Oxford Commentary (n 144) 58.05-5.06. 181 For Regulation 2016/1103 the form is found in COMMISSION IMPLEMENTING REGULATION (EU) 2018/1935 of 7 December 2018 establishing the forms referred to in Council Regulation (EU)

Matrimonial Property and Registered Property Regulations  449 The Annex II forms are however advisory, they are not definitive in the sense that a notary, or other public officer, from the Member State of origin can determine how the authorities in the Member State of enforcement must react or proceed to the authentic instrument he drew-up. For either of the 2016 Regulations these forms are essentially identical with the form provided for Succession Regulation authentic instruments by Regulation 1329/2014, thus it is to questions 4 and 5 of that form that the relevant authority in the Member State of enforcement will look for information pertinent to the nature and condition of the domestic evidentiary effects of the foreign authentic instrument in the Member State of origin. In the context of Article 58 acceptance via the 2016 Regulations, as under Article 59 of the Succession Regulation, there is no ability for the authorities in the Member State of enforcement to require the production of an Annex II form, nor to insist that the form provided be translated to its official language, unless the application also relates to Article 59 enforcement of the relevant 2016 Regulation. It is also worth noting again that if the application in the Member State of enforcement is solely for Article 58 acceptance, there is no need for the incoming authentic instrument to be domestically enforceable in its Member State of origin;182 an Article 59 application does require such domestic enforceability but only for the Article 59 application. Unlike the familiar linked procedures of recognition and enforcement for ‘decisions’, Article 58 acceptance and Article 59 enforcement describe procedures that can each function independently. If the presenter cumulates an Article 58 and an Article 59 application on the same Annex II form, an authentic instrument from Member State ‘A’ that on presentation in Member State ‘B’ is discovered to lack domestic enforceability is fatal only to the Article 59 application. The cross-border evidentiary effect of the foreign authentic instrument should be suspended in the Member State of enforcement if a challenge to the instrumentum of that authentic instrument is pending in the Member State of origin.183 If the challenge is specific to one ‘severable’ issue, the suspension should only affect that issue and the acceptance of the authentic instrument may proceed on the unaffected instrumentum issues.184 The duty of the Member State of enforcement to accept the evidentiary effects of the incoming authentic instrument is conditional on such acceptance not itself 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, (2018) OJ L 314, 11.12.2018, pp 14–33. For Regulation 2016/1104 the form is found in COMMISSION IMPLEMENTING REGULATION (EU) 2018/1990 of 11 December 2018 establishing the forms referred to in Council Regulation (EU) 2016/1104 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, (2018) OJ L 320, 17.12.2018, pp 1–21. 182 Mayer makes the point that this follows from the omission of any enforceability requirement in the definition of ‘authentic instrument’ across both Regulations, Mayer (n 144) Art 58, para 7. 183 For 1103 recital 62; for 1104 recital 61. 184 For further detail see comment in part 1 above in section titled ‘Some Practical Problems with the Suspensive Effect of Member State of Origin’.

450  Succession, and Property Regulations being contrary to the public policy of the legal system in the Member State of enforcement. Circumstances in which such acceptance might breach domestic public policy could include the acceptance infringing the human rights of a party, or concerning an obviously forged authentic instrument.185 In the event that the acceptance required by Article 58 would infringe the public policy of the Member State of enforcement to a significant extent, it must not apply Article 58 acceptance to the offending foreign evidentiary effect.186 In assessing the compliance of the evidentiary effect of the incoming authentic instrument with the public policy of the Member State of enforcement, the authorities are not restricted by the révision au fond prohibition that Article 40 of each Regulation only applies to prevent any review of the substance of a ‘decision’. It remains to be seen how the public policy exception will be applied in this context; it may be that authorities in the Member State of enforcement will deem certain restrictions pertaining to the rebuttal of the normal presumption of full proof of a foreign authentic instrument to infringe Article 47 of the CFREU, or analogous provisions, by unduly restricting the defence rights of he who would oppose the procedural consequences produced by the interaction of a foreign authentic instrument with a significantly different procedural law of the legal system in the Member State of enforcement. Mayer speculates that either by importing onerous foreign restrictions on the admissibility 185 Surprisingly German academic comment is disposed (Mayer (n 144) Art 58, para 10 with references and Art 59, para 11) to regard the obligation of the authority to accept via Art 58 or to enforce via Art 59 (if Germany is the Member State of enforcement) as also extending to obviously forged or faked foreign authentic instruments. This is not merely attributed to the point that it is not for the Member State of enforcement to engage in reviewing matters reserved to Member State of origin (which is correct if the relevant authenticity is first demonstrated) but is said to be buttressed by the Regulation’s abolition of legalisation requirements via Art 61, which some in Germany view as indicating that the incoming authentic instrument must therefore be regarded as a domestic public document with the associated restrictions on evidential appreciation concerning public documents as imposed by German law. With respect, this reasoning is unconvincing: a foreign public document is always different to a domestic public document. Even in its German version, Art 61 provides scant basis for this argument: abolishing a legalisation requirement that only affected a foreign public document cannot legitimise the acceptance by Art 58 or enforcement by Art 59 of an obviously faked authentic instrument (eg one allegedly drawn-up in France while the relevant party was thought to be missing in France but is subsequently discovered to have at the time the document records his presence in Paris to have actually been dead for six months or to have been alive but incommunicado at the relevant time because he was then in a coma in a high security prison located in a Finnish prison hospital). Frankly, either a reference to the CJEU or the invocation of Art 58(1) or Art 59(3) public policy all seem better responses than proceeding to allow cross-border legal effects to the obvious fake. Assessment of different aspects of the incoming authentic instrument is rightly restricted by the 2016 Regulations, but this must not be taken too far: neither a public document nor an authentic instrument is ‘holy writ’ and neither should not be treated as such if forgery or fraud is apparent. It may also be wondered why if, in the context of Art 59 enforcement, it is explicitly required by Art 45(3)(a) that the presented copy of the authentic instrument must by production, ‘establish its authenticity’, an obvious fake must ever be accepted under Art 58 or enforced under Art 59 if it would fail under Art 59’s Art 45(3)(a)? A better result would be to infer from Art 45(3)(a) that it is inevitable that a fake that would fail under Art 59 should also do so under Art 58 either by failing to trigger the application of the conflict of laws rule or via the application of Art 58(1) public policy. Should this course of action not be permitted, the operation of rules of evidence in the Member State of enforcement must, as Mayer suggests, be trusted to neutralise the faked foreign authentic instrument. 186 For further detail see comment in part 1 above in section titled ‘Article 59 Public Policy Exception’.

Matrimonial Property and Registered Property Regulations  451 of counter evidence into the legal system of the Member State of enforcement or an obviously faked authentic instrument could each trigger the Article 58(1) public policy exception.187 Further issues argued to pertain to such public policy might also arise if the disputing party began proceedings in the Member State of origin that were then abandoned due to cost, particularly if the challenger now faces either an additional civil fine or an investigation in that venue. The possibility of such matters being argued would naturally be much higher if there was a simple rule that the evidentiary effect of the foreign authentic instrument took priority over all other matters; very sensibly, such a rule is not present. The ultimate responsibility lies with the authorities in the Member State of enforcement to strike a fair balance between giving warranted evidential effect to the instrumentum/authenticity of what may be multiple incoming authentic instruments via the two 2016 Regulations and any relevant domestic matters arising in the course of what for the authority in the Member State of enforcement are mostly domestic procedural matters.

E. Enforcement The means of effecting the cross-border enforcement of an enforceable authentic instrument in the Member State of enforcement under the 2016 Regulations are set out by Article 59 of the relevant 2016 Regulation and, save for necessary changes of terminology and numbering, are identical with Article 60 of the Succession Regulation; these similarities account for the following somewhat skeletal presentation.188 Article 59 Enforceability of authentic instruments 1. 2.

3.

An authentic instrument which is enforceable in the Member State of origin shall be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 44 to 57. For the purposes of point (b) of Article 45(3), the authority which established the authentic instrument shall, on the application of any interested party, issue an attestation using the form established in accordance with the advisory procedure referred to in Article 67(2). The court with which an appeal is lodged under Article 49 or Article 50 shall refuse or revoke a declaration of enforceability only if enforcement of the authentic instrument is manifestly contrary to public policy (ordre public) in the Member State of enforcement.189

Article 59(1) specifies that an application for a declaration of enforceability concerning an authentic instrument is to be presented in another Member State by 187 Mayer (n 144) Art 58, para 17. 188 The reader is referred to the coverage offered above for Art 60 of Regulation 650/2012 in part 1 of this chapter. 189 Art 59 Regulation 2016/1103 is identical to Art 59 of Regulation 2016/1104.

452  Succession, and Property Regulations any interested party via the procedures set out in Articles 44–57 of the Regulation. This exequatur declaration is emphatically not an exequatur of the instrumentum or ‘authenticity’ of the incoming foreign authentic instrument. Article 58 and Article 59 describe different processes that are differently implemented to allow different aspects of the foreign authentic instrument to potentially benefit from different cross-border legal effects. For Article 59 applications the authentic instrument must be and remain ‘enforceable’ (considered in a technical sense)190 in the Member State of origin from the time of the application to the time of cross-border enforcement; such enforceability can be attested on any provided Annex II form via the information that will be provided in answer to question 6 of that form. Normally the Article 59 applicant should produce not only an authentic copy of the relevant parts of the authentic instrument, but also a suitably completed Annex II form (from the appropriate implementing Regulation)191 issued by the authority that ‘established’ the authentic instrument and specifying the existence of domestic enforceability via question 6 and its sub-questions. Article 44(1) tells the applicant who would enforce that he must submit his application to the court or other competent authority nominated earlier by the Member State of enforcement to the Commission under Article 64 of the relevant Regulation. Article 44(2) then presents the applicant with a free choice between two alternatives, he may either present his application to the nominated court or other authority where the defendant is domiciled,192 or may present his application(s) to any ‘place of enforcement’.193 Article 45(3)(a) requires that an authentic copy of the relevant parts of the authentic instrument be produced and Article 45(3)(b) requires the production of an attestation on the Annex II form of the relevant implementing Regulation. The requirement in Article 45(3)(b) is however applied subject to the three options Article 46 allows the exequatur court if no Annex II form accompanies the presented authentic instrument: a) to set a time for its production; b) to accept 190 Mayer (n 144) Art 59, para 6. 191 For Regulation 2016/1103 see Implementing Regulation 2018/1935, for Regulation 2016/1104 see Implementing Regulation 2018/1990. 192 Though domicile is, according to Art 43, to be established via the lex fori of the Member State of enforcement, it is suggested by Bergquist that it should not be applied in an overly technical manner nor with total disregard for the European provenance of this rule; he notes that the German text refers to ‘ordinary residence’ (Wohnsitz) and cautions against the hypothetical introduction of the English common law notion of domicile. Bergquist, ‘Art 43’ in Oxford Commentary (n 144) 185–86. 193 Bergquist, ‘Art 44’ in Oxford Commentary (n 144) 188. It may be that the location of the target assets will be determinative for authentic instrument related enforcement claims. The alternative of the defendant’s domicile may be less useful for authentic instruments than for decisions. A contentious legal procedure fixes a point in time against which to assess domicile (ie when the court became seised of the claim). It is less clear when in time the domicile of the party to an authentic instrument is relevant. The time of drawing-up is open to the objection that years may have gone by and the target may now genuinely have no other connection with that venue. It is tentatively suggested that the time to determine the domicile of the enforcement target in the context of an Art 44(2) enforcement application for an authentic instrument should be the time of the presentation of the enforcement application.

Matrimonial Property and Registered Property Regulations  453 such equivalent evidence as satisfies it (the court) on this point; or c) to dispense with this production. If options (b) or (c) do not suffice, the exequatur court may, by setting a time under option (a) insist on production of a suitably completed Annex II form prior to entertaining the Article 59 exequatur application. As suggested above concerning the discussion of the Annex 2 form in the context of Article 60 of the Succession Regulation, it seems inadvisable that the legislation allows the possibility of an Article 59 application proceeding to enforcement should the court or competent authority apply Article 46(1) to dispense with the need for the applicant to produce a duly completed and up-to-date Annex II form. Though the exequatur court may also via Article 46(2) require a translation of the Article 45(3) documents it requires to be produced, it is otherwise required by Article 47 to immediately render an exequatur decision once Article 45’s formalities are complied with: Article 48(1) requires that the court communicates its decision to the applicant and Article 48(2) requires that it serve this on the enforcement target.194 Article 53 allows the possibility of the imposition of interim measures in the Member State of enforcement. If an authentic instrument presented to the exequatur court under Article 59 contains several matters for enforcement but the court cannot declare all the parts of the authentic instrument presented for enforcement to be enforceable, Article 54(1) requires that it grants a partial exequatur for the parts that may be declared enforceable. Article 54(2) allows the applicant to request exequatur only for specific parts of the authentic instrument. Appeals against the exequatur decision are possible via Articles 49–50 and serve the important purposes of allowing the enforcement target to become involved in the proceedings as well as allowing Article 59(3) public policy to become a competent issue for the first time in the exequatur application. According to Article 52 a court in the enforcement venue that is seised with an appeal under Articles 49–50 must, if the enforcement target so applies, stay its proceedings if the enforceability of the ‘authentic instrument’195 is suspended in the Member State of origin by reason of an appeal in that venue which produces this suspensive domestic effect. Unlike the automatic suspension required in connection with Article 58 acceptance when there is a domestic challenge to an authentic instrument, there must be an application to stay an Article 59 application (there being no ex officio ability for a court in the enforcement venue to stay the exequatur proceedings without such an application from an ‘enforcement target’). The court in the Member State of enforcement may also not stay Article 59 exequatur proceedings due to other factors, eg the commencement of an appeal in the Member State of origin appeal that does not suspend domestic enforceability. Though certain challenges in the

194 There can be no challenge brought to the exequatur declaration at this stage of the proceedings – any such challenge must be brought during an Art 49 or Art 50 appeal. 195 The text of Art 52 refers to a ‘decision’ but it is submitted that in the context of Art 59 applications this use of decision must be interchangeable with the Art 59 authentic instrument.

454  Succession, and Property Regulations Member State of origin may deprive the authentic instrument of cross-border effects, not every such challenge justifies suspending the Article 59 exequatur proceedings in the Member State of enforcement. Article 51’s first sentence requires that the court hearing an Article 49 or Article 50 appeal shall only refuse or revoke a declaration of enforceability if an exception from the Article 37 list is present, this instruction conflicts with Article 59(3) as it directs the court in the Member State of enforcement away from the sole public policy exception for authentic instrument enforcement and towards the four exceptions to refuse the recognition/enforcement of a ‘decision’ presented via Article 37(a–d). For the same reasons set out concerning this issue in the context of the Succession Regulation, it is suggested that for authentic instruments the instruction in the first sentence of Article 51 to refer to the Article 37 list should be read to refer only to the Article 59(3) public policy exception.196 The second sentence of Article 51 applies unproblematically to authentic instruments as well as to decisions as it merely requires that the decision on the appeal be given without delay. The text of the Regulation is drafted to indicate that a court deciding an Article 49 or Article 50 appeal may consider the issue of Article 59(3) public policy compliance on an own motion basis. This possibility is consonant with recital 54 of Regulation 2016/1103 (and its analogue recital 53 of Regulation 2016/1104), which contemplates the permissible and the impermissible operation of the public policy exception in various contexts while warning that public policy exceptions must not be applied in a discriminatory manner by authorities or courts to infringe Article 21 CFREU; as such warnings apply to the Member State of enforcement they must indicate that a properly conducted own motion examination of public policy compliance is permissible when examining an authentic instrument in relation to Article 59(3). In the context of either of the 2016 Regulations, the court hearing an Article 49 or Article 50 appeal is able, if necessary, to engage in a proper enquiry into Article 59(3) public policy compliance in accordance with the EU private international law principles concerning public policy.197 It must however be stressed that for the purposes of Article 59(3) any violation of public policy must be triggered by the prospect of the appeal court granting or continuing the initial exequatur declaration by the relevant appeal. If the court does not find that the granting or continuing of the declaration would itself trigger the public policy exception, that exception is not made out and the court must not use it to refuse or revoke the declaration of enforceability of a competent exequatur application. Though a breach of public policy may be relevant at a different stage of

196 Mansel suggests that Art 40(b–d) must be disapplied, and so presumably means to leave Art 40(a) applicable, despite Art 60(3) re-formulating the public policy test to suit authentic instruments, Mansel (n 125) para 4, 666. 197 Presumably subject to a supervisory control by the CJEU analogous to its earlier pronouncements on the subject of its supervisory role in the context of the Brussels Convention in para 23 of C-7/98 Krombach v Bamberski EU:C:2000:164.

Matrimonial Property and Registered Property Regulations  455 the cross-border proceedings, it must affect the grant of the exequatur if it is to be used to refuse the exequatur application via Article 59. Once the exequatur application has been granted, communicated and served, the actual enforcement of the cross-border succession authentic instrument may, subject to any Article 49 or Article 50 appeals, begin in the enforcement venue. This actual enforcement is, as Article 2 of each Regulation makes clear, subject to the enforcement venue’s domestic law: at this point wider non-Regulation notions of public policy and other non-Regulation factors associated with the cross-border enforcement of authentic instruments may become relevant.

F.  Incompatibility between Authentic Instruments or between an Authentic Instrument and a Decision In the event that the authorities in the Member State of enforcement, after having applied Article 58 or Article 59, are presented with incompatible authentic instruments, recital 63 of Regulation 2016/1103 and recital 62 of Regulation 2016/1104 provide respectively the same information contained in recital 66 of the 2012 Succession Regulation to indicate that it is for the Member State of enforcement authorities (or the courts with jurisdiction) to evaluate and then decide which of the incompatible authentic instruments should have priority on the given point or points of incompatibility.198 If the incompatibility is between an authentic instrument and a judgment, the final sentences of recitals 63 and 62 indicate respectively that the Member State of enforcement should consider the grounds for nonrecognition of a decision. Again it seems that the court is encouraged to make a wide-ranging enquiry in relation to the incompatibility arising from the authentic instrument in which it may refer to the Article 37(a–d) criteria with the option of basing its decision on its analogous application (eg Article 37(c) incompatibility) despite only one ‘decision’ being present. For further comment and speculation on the likely operation of recitals 63 and 62, the reader is referred to the discussion in part 1 of this chapter concerning the same issues in the context of recital 66 of the Succession Regulation.

198 Noting that hard-and-fast rules, eg relative temporal priority of the authentic instruments, cannot be determinative in an automatic sense, Mayer (n 144) Art 58, para 18.

456

INDEX A-S Autoteile Service GmbH v Malhé  120–121 acceptance checking  59 cross-border  91, 385–387, 389, 400, 402, 410–417, 445–451 recording  28 Alexander III, Pope  37 Amsterdam, Treaty of  336 Amtsnotare  65n Andrae, M  284–285, 286, 288, 317 annulment, marriage Brussels II Convention  344 Brussels IIa Regulation  328, 335, 336, 344, 361 circulation of documents relating to  96n Anwaltsnotar  65n apostille form  94–95, 96, 103, 105, 391 Apostille/Legalisation Convention  10, 93–95, 100 appeal Brussels Convention  153 Brussels I Regulation  135, 154–155 Brussels Ia Regulation  157 Brussels IIa Regulation  363–364 EEO Regulation  211, 224–225, 227, 228–229, 230–231 exequatur procedure  119, 153, 160 generally  119, 135, 153, 154–155, 157 Lugano Conventions  153, 154–155 Maintenance Regulation  284, 301, 308–309, 310 Matrimonial Property Regulation  451, 453–455 Registered Partnership Property Regulation  451, 453–455 révision au fond prohibition  160 Succession Regulation  429, 430, 432, 434–437 assignment, illicit  177, 182 Austria Jugendamt  270 Lugano Convention  125

authentic copy issue by notary  20–21, 76 probative force  30 requirement to produce  21 authentic instrument/authentic act in abstract  19, 20–26 acceptance see acceptance authenticity see demonstration of authenticity bilateral  27–28 challenging see challenging recognition and enforcement civil law systems see civil law systems compulsory creation  20 conflicting  216–217 consents  28, 59 contents  26–27, 28 copies see authentic copy corrupt  256 cross-border effect see cross-border legal effect declarations recorded in  28 declaratory  139 defect in drawing-up  30, 52, 53, 58–64, 142, 148 definition  1, 26, 46–47, 202, 205–208, 273, 296–297, 350, 402–403, 444 deposit and custody rules  20–21 differing national conceptions  12, 84–85, 117, 122–123, 122n domestic authenticity see domestic authenticity/enforceability domestic enforceability see domestic authenticity/enforceability domestic usage  1, 26n, 29, 34, 42, 85 draft  28, 59 drawing-up see drawing-up authentic instrument electronic medium, drawn-up in  47 enforcement see enforcement evidentiary status see evidentiary status; probative force executory force see executory force foreign see foreign authentic instrument

458  Index forged  47, 48, 50, 79, 256, 274, 275, 451 formal content see instrumentum France see French legal system Germany see German legal system global use  8–12 inaccuracy by public official  54–57 invalid  52 judgment, conversion to  92 judicial challenges see challenging recognition and enforcement jurisdiction, generally  2–3 lack of finality  89–90 legal transaction effected by  20 material content see negotium minimum EU requirements  12 misrepresent or conceal using  58 modern domestic form  20, 42ff must be read to parties  28, 59 negotium see negotium non-contentious  23–24, 25–26, 87–91, 112, 123, 132, 133 non-harmonisation  5–6, 8–9, 12, 13, 19, 83, 117, 122–123, 187, 218, 384, 391, 398, 401 non-notarial  26n notarial, generally  1, 3, 26–27 nullity, French legal system  53, 62–63 offer  28, 59 original retained by notary  20–21 parties to see parties presumption of proof  27, 30–31 presumption of truth  27, 30–31 preventive justice function  23, 33 privately drafted  130–131 probative force see evidentiary status; probative force procuration, appending  62–63, 62n public access not allowed  22 public document, as  21–22, 26–27, 28, 85, 93 purpose  1 recognition  278–286 recording aspect  20–21 registration, rendered effective by  350–351 registry, central  21 relationship to other public documents  21–22 scope  1 seal  28, 36–37, 59, 94 signature  28, 46, 59, 94, 143, 205, 207–208, 350–351 single party, where  27

statements of parties see statements of parties translation, debtor’s right to request  156, 301 Unibank principles see Unibank principles who may draw-up  3 Avotinš v Latvia  251–252, 253, 255 Baron J  322–323 Beaumont, P  290 Belgium Service des créances alimentaires  270 Beurkundungsgesetz (BeurkG)  69–70 Bezirksnotare  65n Bingham LJ  167 Borrás Report  332n, 341–342, 343, 344–345 Borrás-Degeling Report  295 Bosphorous presumption  249–252 Brack v Brack  326 Brailsford LJ  167 Brexit  14–15, 98 European Enforcement Order Regulation  180 Brussels Convention Article 5  290, 292–293 Article 16  118–121 Article 31  152 Article 32  152 Article 36  152 Article 37  152 Article 40  152 Article 41  152 Article 42  293 Article 46  146–147, 152 Article 47  146–147, 152–153, 165 Article 48  152 Article 49  152 Article 50  118, 121–123, 124–132, 140, 141, 143, 146, 163, 164–165, 174, 259–260, 341 Article 51  341 Article 54  140, 141 appeals  153 authentic instruments  3, 11, 107, 112, 118–119 challenging instrument validity  149, 183 definitional defects  121–136 domestic authenticity/enforceability  118–119, 120–132, 139, 144–147, 152–153 EEO Regulation and  180–182, 183 enforcement procedure  151–153 exequatur procedure  119, 146–147, 149–150, 151–152, 180–182, 184

Index  459 family law and status matters  333 Jenard Report  120, 158, 163, 333 judgments, enforcement  120 maintenance provisions  259–260, 261, 290, 292–293, 337 material scope  119–120, 137–139 obstructive procedural manipulation  181–182 public policy exception  119, 121–122, 157, 169, 182 purpose  118 replacement  132–133 Schlosser Report  128, 263, 292, 341 settlements, enforcement  118 temporal scope  119–120, 139–140 Unibank principles  127–132 Brussels I family of regulations Article 1  137–139 appeals  135, 153, 154, 157 authentic instruments, generally  132–178 challenging instrument validity  148–157 cross-border enforcement  132–178 definitional defects  121–136 domestic authenticity/enforceability  118, 120–121, 125–132, 137–139, 144–147, 148–157 eligibility criteria  136–178 exequatur-free enforcement  136, 152, 185 judgments, cross-border enforcement  133–134, 137–138, 151 material scope  137–139, 142 material validity of juridical act  146–147 national diversity and  137–138 private international law  117–118, 122–136 public policy exception see public policy exception refusal or revocation of authentic instrument  135, 147 settlements, cross-border enforcement  51, 133, 137–138 temporal scope  137, 139–142, 148 Brussels I Regulation Article 1  135 Article 4  158 Article 5  289, 290 Article 27  158 Article 29  158 Article 34  158 Article 38  154 Articles 38–52  135 Article 39  154

Article 40  154 Article 41  154 Article 42  154 Article 43  135, 154–155 Article 44  135, 155 Article 47  154–155 Articles 53–56  135 Article 53  154 Article 55  154 Article 56  154 Article 57  123, 134–135, 136, 141, 154, 163, 205, 206, 260 Article 58  175 Article 66  140–141 appeals  135, 154–155 challenging instrument validity  149, 150–151 choice of court agreements  317–318 debtor protection  192 definitional defects  123, 132–133 domestic authenticity/enforceability of instrument  131–132, 135, 137, 139, 142–147 EEO Regulation and  182, 183–185, 201, 217 enforcement procedure  121, 132–136, 151–152, 154–155 exequatur procedure  152, 180, 181, 184 introduction  132–133 judgments, enforcement  133–134, 137–138, 151 maintenance provisions  135, 138, 259–260, 263, 290, 294–295, 298, 299, 316, 317–318, 326, 337 material scope  137–139 national diversity and  137–138 public policy exception  134–135, 157–161, 182 refusal or revocation of authentic instrument  135 settlements, cross-border enforcement  133, 137–138, 151 temporal scope  139, 140–141 Brussels Ia Regulation Article 2  136 Article 7  263–264 Articles 39–44  155 Article 42  155 Article 43  155–156 Article 44  156 Article 45  185, 214, 253 Article 46  155, 156–157, 159–160

460  Index Article 47  156 Article 48  157 Article 49  157 Article 50  157 Article 58  136, 142, 155, 156 Article 60  136, 142, 155–156 Article 66  142 Article 75  157 appeals  157 certification of enforceability  155 challenging instrument validity  149–150 cross-border effect  7, 134 domestic authenticity/enforceability of instrument  131–132, 137, 139, 144–147 EEO Regulation and  183, 187, 217 enforcement procedure  134, 136, 155–157 exequatur-free enforcement  136, 155–156, 180, 184, 185, 187, 257 judgments, enforcement  133–134, 137–138 maintenance obligations  263–264, 316 material scope  137–139 national diversity and  137–138 public policy exception  157–161, 182 settlements, cross-border enforcement  133, 137–138 temporal scope  139, 142 translation, debtor’s right to request  156 Brussels II Convention Article 13  343, 344 Article 14  345 Article 15  345 Article 17  345 Article 18  345 annulment  344 authentic instruments  338–343, 344 Borrás Report  332n, 341–342, 343, 344–345 development  333–336, 338 divorce  344 enforcement under  344 generally  328, 329, 331–332 judgment, meaning  344 parental responsibility  344 recognition under  344–345 replacement  345 separation  344 settlements, approved  338–343, 345 Brussels II Regulation Article 13  345–346, 348, 352 authentic instruments  345–346, 351, 352 cross-border legal effect  352

development  336 generally  328, 329, 330 material scope  351 recognition under  345 repeal  352 settlements  352 temporal scope  351–352 Brussels IIa Regulation Article 2  352, 356, 359 Article 11  360 Article 22  361–364, 379 Article 23  361–364, 379–380 Article 24  362, 363 Article 25  362 Article 26  362, 363 Article 28  363 Article 29  363 Article 30  363 Article 33  364 Article 34  364 Article 35  364 Article 36  363 Article 37  363, 364–365 Article 38  365–366 Article 39  363, 364–365, 366 Article 40  360, 366–367 Article 41  365 Article 42  365 Article 44  350, 375–376 Article 45  364–365 Article 46  348, 349, 352, 353–357, 359, 361 Article 47  360 Article 49  352 Article 56  362 Article 64  352, 367 Article 65  367 Article 66  358–359, 367 Article 67  367 Article 68  364, 367 Article 71  351–352 annulment  328, 335, 336, 344, 361 appeals  363–364 authentic instrument not defined  349–350 authentic instruments, generally  328–329, 346, 348–350 challenging  361–362 children, access rights and  346, 357 cross-border effect  328, 351–366 declaration of enforceability  363 development  328, 329–337, 349–350, 383 divorce  328–366

Index  461 domestic authenticity/enforceability of instrument  349, 352–359 earlier judgments  362 enforceable, meaning  353–355, 357 enforcement under  328–329, 349, 352–366 exequatur procedure  346, 363–364 extent of practical use  383 fast-track Section 4 order  360, 364–365, 366–367 habitual residence  362, 363, 370, 380 later judgments  362 parental responsibility  328–366 public policy exception  356, 361–362 recast see Brussels IIa Regulation recast recognition under  328–329, 349, 355–366 replacement  328, 351, 353 scope  328, 351–353 Section 2 order  360 Section 4 orders  360 separation  328, 344, 358, 361 settlements  367 signature of authentic instrument  351 standard-track Section 2 order  360, 366–367 temporal scope  328–329, 351–352, 353 transitional matters  352 translation where of document necessary  365–366 Brussels IIa Regulation recast Article 2  350–351 Article 30  359 Article 64  372 Article 65  358, 372–373, 374–375, 376, 383 Article 66  374–378 Article 67  376–378 Article 68  377–382 Article 103  10, 375, 376, 378 agreements  367, 370–371, 375, 378–381 authentic instruments, generally  350, 358, 367, 369–374, 379 automated enforcement applications  366–367, 368 automated recognition  372 best interests of child  377–378, 381–382 binding legal effects, instrument or agreement producing  358–359 certificates  371, 373, 374–378 challenging recognition and enforcement  378–381 child, importance of hearing  338, 379, 381–382

cross-border enforcement  338, 366–372, 374–381 development  333, 338, 368–372, 383 divorce  366–384 domestic authenticity/enforceability of instrument  369, 370, 371, 373, 375–377, 379 earlier judgments  379–381 exequatur requirements, removal  338 extent of practical use  383 free-movement rights  370 generally  328–329 judgments, recognition and enforcement  367 later judgments  380–381 non-judgment enforcement titles  367 parental responsibility  338, 346–348, 358–359, 366–384 privileged decisions  366–367, 373–374 procedure, generally  383 public policy exception  371, 379–380 refusal of recognition or enforcement  378–381 scope  353, 372–374 separation  366–384 signature of authentic instruments  350–351 temporal scope  328–329, 351–352, 353 transitional provisions  352 translation costs  375 Bulgaria notarial authentic instruments  144 Bundesnotarordnung (BNotO)  69–70 Bürgerliche gesetzbuch (BGB)  64, 69, 70, 80  Callé, P  105 Campos Sánchez-Bordona AG  406–407 canon law, influence  20, 37 capacity Apostille Convention  94 contractual  53, 94, 117 public policy exception and  166, 178 Cassis de Dijon jurisprudence  281, 395–399 CDE v Bertrand  162–163 challenging recognition and enforcement admissibility of evidence  79 Brussels Convention  149 Brussels I Regulation  149, 150–151 Brussels Ia Regulation  149–150 Brussels IIa Regulation  361 Brussels IIa Regulation recast  378–381 burden of mounting  30, 31

462  Index capacity to contract as grounds  53 defect in drawing-up as grounds  30, 52, 53, 58–64, 142, 148 defect in legal formalities as grounds  52, 58–64, 148–149 domestic enforceability of instrument  148, 155, 214, 248 EEO certificate  183, 212–216, 220, 221–234 executory force of notarial authentic instruments  30–32, 57 exequatur procedure, during  149–150 fine for lost claims  56 forgery, French concept of  47, 48, 50–57 formal validity/instrumentum  51–57, 79–81, 148–157, 213, 223, 248, 280–281, 313, 412 French legal system  51–64, 150 generally  28, 30 German legal system  78–82, 150 human rights as grounds  166–168, 175, 248–256 illicit use of enforcement title as grounds  177, 182 indirect challenges  31 inscription de faux  55–56 instrument not capable of enforcement  148–157 Lugano Convention  150–151 Maintenance Regulation  284 material validity/negotium  52, 53, 57–59, 81–82, 148, 156, 214, 223, 248, 280–281, 313, 412–413 Matrimonial Property Regulation  446 misrepresentation as grounds  53 mistake as grounds  53 multiple debtors, EEO Regulation  214–215 negative declaration from court, debtor seeking  79 non-compliance with requirements as grounds  148–157 place instrument drawn-up  30 presumption of notarial compliance  79 public policy as grounds see public policy exception refusal of enforcement, following  149–150 Registered Partnership Property Regulation  446 révision au fond  149, 158–160, 216, 234–242 substantial invalidity as grounds  150

successful  57 Succession Regulation  410–413, 417–418, 425–426 temporal scope of regulation as grounds  148 uncontested titles  213–216 Charlemagne  36 child adopted, maintenance obligations  265 Brussels IIa Regulation  328, 330 Brussels IIa Regulation recast  338, 377–378, 379, 381–382 custody agreements  71, 328, 357, 359–360 Hague Convention on the Civil Aspects of International Child Abduction  347–348 instruments relating to  96n maintenance obligations see maintenance obligation; Maintenance Regulation parental responsibility for see parental responsibility paternity  71, 335 rights of access to  346, 357 Cicero  34 civil law systems authentic instruments, generally  2, 8, 19–26 codification  20 maintenance claims  264–265, 269 non-contentious practice  24–26 preventive justice  22–23, 24–26, 33 public documents  21–22 succession, generally  388 common law systems authentic instrument alien to  2, 8 judicial system, recourse to  24 maintenance claims  264, 265 non-contentious practice  23–24 preventive justice  22 public documents  21–22, 21–22n public registers  24 succession  23–24, 388 trusts  23 wills  23 conflict of laws generally  38, 85–86 Matrimonial Property Regulation  447, 448 Registered Partnership Property Regulation  447, 448 Succession Regulation  415–418, 422, 424–425, 426–427, 430, 431, 439

Index  463 consent of parties checking  59 immediate enforcement of authentic instrument  59 recording  28 consularisation foreign public documents  93–94, 96–97 Council of Europe  330 Crifo, C  195, 201–202, 209 cross-border legal effect see also foreign authentic instrument acceptance of foreign instruments  91, 385–387, 389, 400, 402, 410–417, 445–451 additional privileges, conferral  285 apostille form  94–95 Apostille/Legalisation Convention  10, 93–94, 100 appeals see appeal applicable law, determination  85–86 authorisation to draw-up  3 bilateral agreements  94–95, 97, 106–113, 118 Brexit  14–15, 180 Brussels Convention see Brussels Convention Brussels I family of regulations  136–178 Brussels I Regulation see Brussels I Regulation Brussels Ia Regulation see Brussels Ia Regulation Brussels II Convention see Brussels II Convention Brussels II Regulation see Brussels II Regulation Brussels IIa Regulation see Brussels IIa Regulation; Brussels IIa Regulation recast challenging see challenging recognition and enforcement civil procedure law of receiving State  97–99 conflict of laws  38, 85–86, 415–418, 422, 424–425, 426, 427, 430, 431, 439, 447, 448 definitional defects  121–136 demonstration of authenticity see demonstration of authenticity differing conceptions of authentic instruments  12, 84–85, 117, 122–123, 122n divorce, recognition  340n, 341–343, 349

domestic authenticity see domestic authenticity/enforceability domestic enforceability see domestic authenticity/enforceability EEO see European Enforcement Order Regulation effectiveness in foreign EU legal system  13 eligibility criteria  136–178 enforcement, generally  41, 84–91 European Economic Area  3, 9 European Union  2, 3, 9, 10–12, 13, 83, 95–96, 97, 397 evasion of enforcement venue law  246–247 evidentiary  85 executory force and  84, 85, 90, 94 exequatur see exequatur procedure extra-EU instruments  84 family law, development  329–337 foreign judgments see judgment, cross-border enforcement generally  1–2, 42, 84–87 instruments challenged within country of origin  90 intra-EU  84–85 Lugano Conventions see Lugano Convention; Lugano Convention II maintenance see maintenance obligation; Maintenance Regulation Matrimonial Property Regulation see Matrimonial Property Regulation multilateral arrangements  97 mutual recognition principle  280, 337, 390, 395–399 negotium  85–86, 87, 393 non-contentious authentic instruments  87–91, 112 non-EU states  9–10 obstructive procedural manipulation  181–182 private international law  84–87, 92–95 probative force and  84, 85, 86–87, 90, 94, 285 public document status of instrument  86–87, 93 public policy exception see public policy exception reciprocity  14, 106, 126 recognition procedure  86–91, 279–286 Registered Partnership Property Regulation see Registered Partnership Property Regulation regulatory gap  13–14, 15

464  Index settlements see settlement, cross-border enforcement split mortgages  109–110, 112–113 Succession Regulation see Succession Regulation uncontested claims  180–183, 184–185, 188, 199, 202, 208–212, 213–216 wills  391–392 currency transaction, illicit  177 de Cavel v de Cavel (No2)  292 De La Hija v Lee  234–235 death, instruments relating to  96n debt, assignment French legal system  45 demonstration of authenticity Brussels I family of regulations  138–139, 152–155 challenge on ground of  148 cross-border legal effect and  87, 92–93, 96–97, 99, 126, 130 involvement of public authority  11, 73, 126–131, 136, 137, 142–144, 148, 205, 206, 407–410 Succession Regulation  407–410, 417 Denmark Brussels II regime  351 gældsbrev  127–132 Maintenance Regulation  267, 298, 299–300, 305, 308 Matrimonial Property Regulation  385, 389 Registered Partnership Property Regulation  385, 389 Succession Regulation  385, 388 Diageo  253 Dicey Morris and Collins  242 discrimination basis of nationality, on  398n public policy infringements  429–430 divorce see also maintenance obligation; Maintenance Regulation; parental responsibility; prenuptual agreement authentic instruments  338–343 Brussels II Convention  333–336, 338, 344 Brussels IIa Regulation  328–366 Brussels IIa Regulation recast  366–384 consensual, trend towards  338–340, 343, 369–370, 371 cross-border recognition  96n, 340n, 341–343, 349, 356–359, 362 France  7, 331–332, 339–340

ghet  356 Hague Conventions  330–332, 330n intra-European legislation, development  329–337 judgments  328, 331, 334–335, 338–339, 341 matrimonial property regimes  264, 270 notarial issue  339–340 out-of-court agreements  342–344 private declarations  356, 358 Rome III Regulation  72n, 333, 337, 388–389 talaq  356 domestic authenticity/enforceability Brussels Convention  118–119, 120–132, 139, 144–147, 152–153 Brussels I family of regulations  118, 120–121, 125–132, 137–139, 142–147, 152–155 Brussels I Regulation  131–132, 135, 137, 139, 142–147 Brussels Ia Regulation  131–132, 137, 139, 144–147 Brussels IIa Regulation  349, 352–359 Brussels IIa Regulation recast  369, 370, 371, 373, 375–377, 379 challenge on grounds of  148, 155, 214, 248 EEO Regulation  208 generally  84, 97, 100–106 Lugano Conventions  126, 130–132, 155 Maintenance Regulation  277, 278–279, 282, 285, 297, 300, 308, 313 Matrimonial Property Regulation  251 public policy exception and  148–157 Registered Partnership Property Regulation  251 Succession Regulation  392, 407, 410–411, 421–422, 431, 432 domestic legal institution, authentic instrument as  19–26 Dörner/Lagarde Succession Study  387 drawing-up authentic instrument defect in  30, 52, 53, 58–64, 142, 148 draft instruments  28, 59 electronic medium, in  47 eligibility  42 generally  1, 3, 14, 26–28, 29, 36–37 German legal system  69 location of drawing-up  30 public authority involvement  11, 73, 126–131, 136, 137, 142–144, 148, 205, 206 Droz, Georges  105, 159

Index  465 Dutta, A  269 Dyer v Watson  167 Eames, D  318–319 EE  406–407 Einführungsgesetz zum Bürgerlichen Gesetzbuche in der Fassung der Bekanntmachung (EGBGB)  71–72 enforceable copy, issue  20–21, 76 enforceable obligation, registration  3 enforcement automated applications  366–367, 368 Bosphorous presumption  249–252 Brussels Convention  151–153 Brussels I Regulation  121, 132–136, 151–152, 154–155 Brussels Ia Regulation  134, 136, 155–157 Brussels IIa Regulation  328–329, 349, 352–359 Brussels IIa Regulation recast  358–359, 366–372, 378–381 certification of enforceability  155 challenging see challenging recognition and enforcement circumventing  31 cross-border see cross-border legal effect; foreign authentic instrument domestic  30–31 domestic enforceability see domestic authenticity/enforceability EEO see European Enforcement Order Regulation enforceability, meaning  352–355, 357 EU Regulations  13 executory force of authentic instruments  30–32, 42, 57, 67–68, 73–77, 84 exequatur see exequatur procedure foreign authentic instruments see cross-border legal effect; foreign authentic instrument foreign judgments  87–89, 90–92, 95, 104, 107, 112, 120, 133–134 free movement of enforcement titles  217 French legal system  50–52, 150 German legal system  67, 69, 78, 150 historical background  39–40 human rights violation triggered by  256 immediate  30–32, 45–46, 51, 59, 62 improper authentication preventing  144 instrument not capable of  148–157

judicial intervention  31n Lugano Convention  151–153 Lugano Convention II  152, 154–155 Maintenance Regulation  258, 267–268, 270, 271, 273–276 Matrimonial Property Regulation  386, 445, 451–455 objection to  78 perfection  355 person, against  14 prenuptial agreements  320, 324–326 public policy exception see public policy exception refusal  149–150, 302–304, 305–308 Registered Partnership Property Regulation  386–387, 445, 451–455 regulatory gap  13–14, 15, 83 Scottish law  14 Succession Regulation  386–387, 392–393, 401, 410–419, 430–437 Swiss legal system  125 venue, role in EEO Regulation  186, 210–212, 217–220, 228, 242–244 English law Brexit  14–15, 98 creditor suing under  14–15 generally  3 incoming authentic instruments  98 prenuptial agreements  313–326 Scottish authentic instruments  98 spousal maintenance  315 Enhanced Cooperation Regulation  72n, 333, 337, 386, 440, 444–445, 445n, 447 error, challenge on grounds of  53 Estima Jorge v Portugal  167–168 Estonia notarial authentic instruments  145 notarial issue of divorce  339 European Account Preservation Order (EAPO) Regulation  4–5 European Certificate of Succession  392, 411–412 European Convention on Human Rights (ECHR) enforcement challenged via  166–168 European Economic Area (EEA) Brexit  14 circulation of instruments within  2, 3, 7, 9, 98 incoming authentic instruments  3

466  Index European Economic Community (EEC) bilateral conventions between founding members  106–113 Brussels Convention  3, 11, 107, 112 European Enforcement Order (EEO) Regulation Article 1  199–201, 207 Article 2  196, 201–202 Article 3  196, 202, 207, 208–210, 213, 214, 226–227 Article 4  196, 202–208, 209–210, 240, 253, 350 Article 5  196, 198, 254 Article 6  196, 198, 213, 214, 216, 220, 221, 226, 229 Article 7  203 Article 9  196 Article 10  186, 198, 212–213, 214, 222, 223, 227, 238–239, 241 Article 11  210–212, 213, 214, 215, 216, 219–220, 221, 227–229, 236, 237, 239, 240, 244, 248, 254, 350 Article 19  223 Article 20  211, 212, 215, 216–217, 218–219, 222, 229, 230, 236, 238, 239, 241, 242, 243 Article 21  185, 196, 216, 220, 229, 231, 233–242 Article 22  196, 229 Article 23  183, 196, 210, 212, 213, 214–215, 218, 220, 221–242, 244–245, 248, 253 Article 25  189, 196, 198–199, 200, 216, 218, 219, 220, 229, 234, 235, 236 Article 26  183, 196, 202 Article 33  209 Article 35  183, 196, 202 appeals  211, 224–225, 227, 228–229, 230–231 attraction for EU policy-makers  180, 184–185 authentic instrument, definition  202, 205–208, 350 Bosphorous presumption  249–252 Brexit  180 Brussels Convention and  180–182, 183 Brussels I Regulation and  182, 183–185, 201, 217 Brussels Ia Regulation and  183, 217 certificate  155, 183, 187, 188–190, 192–193, 195, 196–199, 202 certificate supervision  195, 197–199, 243

challenging EEO certificate  183, 212–216, 221–234 claim, definition  202–204 conflicting authentic instruments  216–217 creditor unduly advantaged by  191, 192–195, 200–201, 213, 242–257 cross-border enforcement, generally  7, 195–199 debt disputed in Member State of origin  210–212 debtor warning requirement, proposed  200–201 due date for sum claimed  204 enforceable title not yet fallen due  204 enforcement pro tem  228–229 enforcement procedure, generally  229–234 enforcement venue, generally  186, 210–212, 228, 229–230, 242–244 enforcement venue authorities and courts  217–220 entitlement to apply  183 evasion of enforcement venue law  246–247 exequatur procedure and  180–182, 183, 184–185, 190–191, 195, 209, 217, 220, 246 fair trial, right to  199–200 fast-track option, as  182 fundamental rights, promotion  199–200 fundamental rights infringements  248–256, 257 generally  179–180 illegal or fraudulent purpose  246–247 judgment debtor’s rights of defence  190–191 judgments, enforcement  180–185, 187, 188, 190–191, 199, 202–203, 242–243 lack of judicial oversight  197, 217, 243, 246–247, 257, 271 legal requirements for circulation via  195–199 legitimate ignorance of creditor’s proceedings  190, 191, 199 limiting enforcement  183, 185, 221–242 maintenance obligation arrangements  205–206, 215, 260, 295, 299, 337 minimum standards  190–191, 199–200 multiple debtors challenging  215–216 non-harmonisation of enforcement procedure  181, 187, 217, 218, 219, 222–223 origins  180–186 political dimension  184–185

Index  467 public policy control  242, 245–256 public policy exception  185, 245, 248–249 public policy infringements  185, 245–256, 257 purpose  181–182, 199 qualifying title  183 RAND Report  191, 192–195, 242, 243 rectification procedure  198, 212, 213, 222, 223, 241 révision au fond prohibition  216, 220, 233, 234–242 scope  196, 201–202 settlements, enforcement  202–203, 229 significance for notaries  186–190 state liability, exclusion  201 staying enforcement  183, 185, 221–242, 244 subject matter  199–201 temporal application  202 transcription errors  189, 237–238, 243–245, 256 transcription or translation, requirement for  215, 243–244 uncontested claims  180–183, 184–185, 188, 194, 196, 199, 202, 208–212, 213–216 withdrawal of certificate  192, 211, 212, 215, 222, 223, 237–242 European Free Trade Association (EFTA) authentic instrument eligibility criteria  136–178 Lugano Convention  11, 124–126 European Order for Payment  4 European Small Claims Procedure  4 European Union (EU) authentic instruments, generally  2–3, 8–9, 84–85 Brexit  14–15, 98, 180 Brussels Convention see Brussels Convention Brussels I see Brussels I Regulation Brussels Ia see Brussels Ia Regulation Brussels II Convention see Brussels II Convention Brussels II Regulation see Brussels II Regulation Brussels IIa Regulation see Brussels IIa Regulation; Brussels IIa Regulation recast Charter of Fundamental Rights  175 circulation of authentic instruments within  2, 3, 9, 10–12, 13, 83, 84–85, 95–96, 97, 98 civil law systems  20 Conventions  2, 3, 13

discrimination on basis of nationality  398n diversity within  12, 84–85, 117, 122–123, 122n, 137–138, 206–207, 244 domestic laws  7–8, 19–26, 83, 85 EEO see European Enforcement Order Regulation eligibility criteria for authentic instruments  136–178 Enhanced Cooperation Regulation  72n, 333, 337, 386, 440, 444–445, 445n, 447 exequatur procedure  132 extra-EU instruments  84 family law, development  329–337 France see French legal system free movement of capital  177 free movement of citizens  95–96, 370 free movement of enforcement titles  217 Germany see German legal system global perspective of EU developments  9–10 incoming authentic instruments  3 Lugano Conventions see Lugano Convention; Lugano Convention II Maintenance Regulation see Maintenance Regulation Matrimonial Property Regulation see Matrimonial Property Regulation Mediation Directive  138, 269–270 Member State retained competencies  6–7, 12, 19 minimum requirements for authentic instruments  19 minimum requirements for notarial documents  12 mutual recognition principle  337, 390, 395–399 non-harmonisation of authentic instruments  5–6, 8–9, 12, 13, 19, 83, 117, 122–123, 122n, 124, 181, 187, 218, 384, 398, 401 notaries, regulation  13, 83 private international law  34, 107, 117–118, 122–136 proposed European Authentic Act  5n, 19n, 95, 122n, 396 Registered Partnership Property Regulation see Registered Partnership Property Regulation Regulation on Public Documents  4–5 Regulations, generally  2, 3–4, 9, 13–14, 19, 98

468  Index regulatory gap  83 Succession Regulation see Succession Regulation uncontested claims  180–183, 184–185, 188, 199, 202, 208–212, 213–216 evidentiary status see also probative force advantages of authentic instruments  21, 23, 27, 28, 30–31 authentic copies  30 cross-border legal effect  84 French authentic instruments  46, 47, 48–50 generally  1, 20, 26–27, 28, 30, 47, 66–67, 84 German legal system  79 historical development of notarial instruments  39–43 instrumenta  37–38 notarial authentic instruments  30–31 notarially unverified facts  28–30 notarially verified facts  26–27, 28–32, 66, 84 rebutting the evidential presumption  30, 31 registerable events  25–26 scope of authentic instruments  1 statements by private parties  28–30 written record of, authentic instrument as  20 executory force cross-border effect  84, 85, 90, 94 foreign authentic instruments  87, 97, 99, 104–106 Germany  67–68, 73–77 historical background  37–39, 40, 42 notarial authentic instruments  30–32, 37–39, 40, 42, 57, 67–68, 73–77, 84, 85 exequatur procedure appeals  119, 153, 160 bilateral treaties  118 Brussels Convention  119, 146–147, 151–152, 180–182 Brussels I Regulation  152, 180 Brussels Ia Regulation  136, 155–156, 180, 187, 257 Brussels IIa Regulation  346, 363–364 Brussels IIa Regulation recast  338 challenging validity of authentic instruments  149–150 domestic enforceability of instrument  97, 100–106 EEO Regulation and  180–182, 183, 184–185, 190–191, 195, 204, 209, 220, 246 European Union decisions  132

exequatur-free enforcement  136, 152, 155–156, 180–181, 183, 184–185, 187, 190–191, 204, 217 foreign authentic instruments  91, 107–108, 110–112, 113–114, 118 French legal system  100, 101–102, 104–106, 107–108, 150, 331 Lugano Convention  152 Maintenance Regulation  267–268, 274, 275, 280, 281, 282–283, 285, 305–306 Matrimonial Property Regulation  452–453 public policy exception  108, 110–111, 113–114, 118–119, 121–122, 147, 157, 160–161, 168–169, 182 refusal  149–150 Registered Partnership Property Regulation  452–453 Succession Regulation  430–437 Fallon, M  330, 335, 339 family law see also divorce; maintenance obligation; Maintenance Regulation; marriage; parental responsibility; prenuptual agreement Brussels Convention  333 children see child enhanced cooperation  72n, 333, 337, 386, 440, 444–445, 445n, 447 Matrimonial Property Regulation see Matrimonial Property Regulation Registered Partnership Property Regulation see Registered Partnership Property Regulation Succession Regulation see Succession Regulation Finland Lugano Convention  125 out-of-court divorce agreements  342, 343, 344 force obligatoire, French legal system  84n foreign authentic instrument see also cross-border legal effect apostille form  94–95 Apostille/Legalisation Convention  10, 93–95, 100 authenticity see demonstration of authenticity Belgian-French Convention  107–110 Belgian-German Convention  110 Belgian-Italian convention  110–111 bilateral agreements  94–95, 97, 106–113, 118

Index  469 capacity of parties  94 civil procedure law of receiving State  97–99 conversion to and export as judgment  92–95 domestic enforceability see domestic authenticity/enforceability employment outwith state of creation  85–87 enforcement  87–88, 100, 105 EU Regulations  95–96, 97 executory force  87, 97, 99, 104–106 exequatur see exequatur procedure exequatur-like procedures  91 French-German bilateral agreement  94–95 French-Italian Convention  110 generally  1 German-Netherlands Treaty  111–112 legalisation (consularisation)  92–94, 96–97 multilateral arrangements  97 Netherlands-Italian Convention  110 non-contentious  87–91, 112 notarial  100–101 private international law  92–95 probative force  87, 97, 99, 100–103 public document, as  93 reception ‘as such’  99–100, 101–102, 103, 105, 144 seal or stamp  94 signature, authenticity  94 split mortgages  109–110, 112–113 verification  93–94 forgery forged authentic instrument  79, 256, 274, 275, 451 French concept of  47, 48, 50–57 Francis I, King  40 French legal system ‘as such’ reception of instrument  99–100, 101–102, 105, 144 attachment of assets  51 authentic instruments, generally  9, 42, 43 authority of public official  47–48 bilateral agreement with Germany  94–95 bilateral agreement with Italy  110 cancellation of register entry  45n capacity of parties  117 challenging actual enforcement  51, 59–64 challenging authentic instruments  51–54 challenging formal validity/instrumentum  51–57, 150 challenging material validity/negotium  52, 53, 57–59

Code Civil  44–50, 104–105, 331–332, 340 Code Des Procédures Civiles D’Exécution  51 codification  41–42 conflict of laws  38 creation of authentic instruments  47 debt, assignment  45 definition of authenticated instrument  46–47 development and adjustment of law  64 divorce, foreign judgments  331 divorce by mutual consent  7, 339–340 domestic enforcement court  59–64 electronic medium, instrument drawn-up in  47 enforcement  50–52, 150 entitlement to draft instruments  44 evidentiary status of instruments  46, 47, 48–50, 99–106 executory force of foreign instruments  104–106 exequatur procedure  100, 101–102, 104–106, 150, 331 force obligatoire  84n foreign authentic instruments  99–106 forgery, challenge on grounds of  47, 48, 50–57 formal public transactions  44–45 formule exécutoire  50–51 French Revolutionary reforms  43–44 historical development of notarial instruments  33, 38n, 39, 42–64, 82–83 Huissier de Justice  51, 54–55, 164–165 immediate enforcement of instrument  45–46, 51, 59, 62 inaccuracy by public official  54–57 influence  12 inheritance, renouncing  45 inscription de faux  55–56 inter vivos gifts  44 juge de l’exécution  51 lease contracts for land  45 limitation on evidence which may be recorded  48–49 loan instruments  45 Loi du Ventôse an XI (1803)  43–44, 50, 67 maintenance claims  264–265, 304 matrimonial agreements  45 notarial authentic instruments  44 notary  42, 43, 47–48 nullity of authentic instruments  53, 62–63

470  Index Partnership assets, mortgage or security over  45 private documents signed by parties  46, 47 probative force (force probante)  84n, 100–102 procuration, appending  62–63, 62n proof of juridical act  46 proxy, party represented by  59n, 62–63 registration requirements  45 requirements of authentic instruments  46–47 signature of juridical acts  46, 59 simulation  49 spouses entering commercial partnership  45n storage of authentic instruments  47 titre exécutoire  144, 164–165 Tribunal de Grande Instance  51, 55–56 verification of evidence  48 voluntary use statements  44, 45–46 where authentic instrument required  44–45 wills  45 gambling debt, enforcement  177 Geimer, R  169, 176–177, 182 Gerichtsund Notarkostengesetz (GNotKG)  69 German legal system admissibility of evidence  79 adoption, declaration as to  71 Anwaltsnotar  65n ‘as such’ reception of instrument  99–100, 101, 103, 144 authentic instruments, generally  9, 12, 42, 66–67 Beurkundungsgesetz  69–70 bilateral agreement with France  94–95 Bundesnotarordnung  69–70 Bürgerliche gesetzbuch  64, 69, 70, 80 capacity of parties  117 challenging authentic instruments  78–82, 150 challenging instrumentum  79–81 challenging negotium  81–82 codification  42, 64 community of property, termination  71 corporation, formation  71 costs  69 court, authentic instrument issued by  64 development  64–70 dingliche Zwangsvollstreckun gsunterwerfung  28n

divorce  71 drawing-up authentic instruments  69 enforceable copy, issue  76 enforceable notarial documents  75–77 enforcement, generally  67, 69, 78, 150 executory force of instruments  67–68, 73–77, 104–106 foreign authentic instruments  99–106 French annexed territories  40–41, 44, 67 future heirs, contracts between  70 Gerichtsund Notarkostengesetz  69 gift, contract promising  67 Gleichwertigkeit  103 Grundgesetz  164–165 Grundschuld  28, 69, 171–173 habitual residence, change of  71 harmonisation of civil procedure  68–70 hauptberufliche Notar (Nurnotar)  64n historical development of notarial instruments  33, 40–41, 42–43, 64–83 Hypotheken  69 instrumentum publicum  67 issue of authentic instruments  64 land transfers  70, 72 Länder regulations  65–70, 75, 79 maintenance claims  265, 270, 304 marriage contracts  70 negative declaration from court, debtor seeking  79 nicht valutierte Notarurkunden  173 notariat  12, 42, 44, 64–66, 64–65n, 67 Notariatsordnung  66–67 objection to enforcement, debtor raising  78 parental custody of children  71 paternity, acknowledgement  71 persönliche Zwangsvoll streckungsunterwerfung  28n presumption of notarial compliance  79 presumptions of authenticity and proof  78–79 probative force (Beweiskraft)  66–67, 73–75, 84n, 100–101, 103 public officers  64 registers  70, 71 Reichscivilprozeβordnung  68–69, 76 Vollstreckbarkeit  75n, 84n Vollstreckungsklausel  68, 69, 80 Vollstreckungstitel  144 waiver of matrimonial property  70–71 when authentic instrument required  70 when notary may be consulted  72

Index  471 when notary required  70–72 Willenserklärung  76–77 wills and inheritance  71 Zivilprozessordnung  69, 73–77, 78–79, 80–81, 104 Gleichwertigkeit  103 Gottwald, P  356 Gruber, H  287–289 Grundgesetz (GG)  164–165 Grundschuld  28, 69, 171–173 Grziwotz, H  66–67 Guimarães  236 Guyot de Mishaegen and Another  162, 163 Hague Choice of Court Convention  10, 11 Hague Conference on Private International Law (HCCH)  10 family law Conventions  330–332, 330n, 347 maintenance obligations  259, 261n, 262, 266–268, 272–273, 275, 276, 277, 282, 289–290, 295–296, 297–300, 320 Hague Convention on the Civil Aspects of International Child Abduction  347–348 Hague Convention of Legalisation for Foreign Public Documents see Apostille Convention Hague Convention on Parental Responsibility  343 Hague Divorce Recognition Convention  331 Hague Judgments Convention  10, 12 Hale LJ  324 Halpern J  234 hauptberufliche Notar  64n Hess, B  175 Hilbig, K  310 Hoffmann v Krieg  303 Hornsby v Greece  168 Huissier de Justice  51, 54–55, 164–165 human rights Bosphorous presumption  249–252 challenge on grounds of  166–168, 175, 248–256, 257 Hungary Matrimonial Property Regulation  388–389 notary and judge, functions  7n Registered Partnership Property Regulation  388–389 Hypotheken  69

Iceland Lugano Convention  125 illegal agreement, camouflaging  246–247 inscription de faux  55–56 instrumentum challenging authentic instruments  280–281, 313 challenging EEO certificate  213, 223, 248 challenging in French law  30, 51–57 challenging in German law  79–81 historical background  34–38 inter vivos gift, French legal system  44 International Commission on Civil Status (ICCS/CIEC)  330 International Union of Notaries (UNIL)  8, 9 intimidation of debtor  175 Ireland Matrimonial Property Regulation  385, 388–389 Registered Partnership Property Regulation  385, 388–389 Succession Regulation  385, 388 Jenard Report Brussels Convention  120, 158, 163, 333 Jenard/Möller Report Lugano Convention  126–127, 129, 130–132, 135, 143, 144–145 judgment, cross-border enforcement authentic instrument converted to  92 Brussels I family of regulations  133–134, 137–138, 151 Brussels IIa Regulation recast  367 contentious judgments  87–93, 95, 99, 104, 107, 109, 112, 120, 123, 132, 133–134 divorce judgments  328, 331, 334–335, 338–339, 341 EEO Regulation  180–185, 187, 188, 190–191, 199, 202–203, 242–243 Hague Judgments Convention  12 Lugano Convention  124–125 Maintenance Regulation  286–289 public policy exception  158–160, 171 révision au fond prohibition  159–160 trend away from judgments  369–370, 371 juridical act evidence concerning  1 material validity  146–147 presumed accurate and proven  1

472  Index Krombach v Bamberski  251, 253, 255–256 La Pergola AG  129–132 Lagarde, P  335 land, sale and transfer German legal system  28, 69, 70, 72, 171–173 land registry  21, 23, 25–26 preventive justice function of an authentic instrument  23 Latvia Matrimonial Property Regulation  389 notarial issue of divorce  339 Registered Partnership Property Regulation  389 lease, French legal system  45 Lechner, K  398 legal certainty, registration fostering  25 legalisation Apostille Convention  10, 93–94 apostille form  94–95 foreign public documents  92–95, 96–97 Leutner, G  177 Lipp, V  284–286, 317 Lithuania Matrimonial Property Regulation  389 notarial authentic instruments from  145 Registered Partnership Property Regulation  389 loan agreement contents of authentic instrument  28 French legal system  45 Grundschuld  28, 69, 171–173 sham transactions  58 Lothschutz v Vogel  237, 243 Louis XIV, King  43 Luckwell v Limata  326 Lugano Convention Article 31  152 Article 32  152 Article 36  152 Article 37  152 Article 46  152 Article 47  152–153 Article 48  152 Article 49  152 Article 50  123 Article 54  142 Article 61  140 Article 62  140 appeals  153 challenging instrument validity  150–151

cross-border enforcement  9, 11, 83, 98, 121, 335 definitional defects  123, 124–126, 135 domestic authenticity/enforceability  126, 130–132, 144–147, 152–153 enforcement procedure  151–153 exequatur procedure  152 Jenard/Möller Report  126–127, 129, 130–132, 135, 143, 144–145 judgment, cross-border enforcement  124–125, 151 maintenance obligations  317 material scope  137–139 national diversity and  137–138 public policy exception  157 reciprocity  126 temporal scope  139, 140 Lugano Convention II Article 38  154 Article 39  154 Article 40  154 Article 41  154 Article 42  154 Article 43  154–155 Article 44  155 Article 47  154–155 Article 53  154 Article 55  154 Article 56  154 Article 57  135, 154, 166 Article 63  141–142 appeals  154–155 domestic authenticity/enforceability  130–132, 144–147, 152, 154–155 enforcement procedure  152, 154–155 exequatur-free enforcement  152 generally  135 material scope  137–139 public policy exception  157–161 temporal scope  139, 141–142 Luxembourg Convention  330 Maastricht Treaty  334 Macleod v Macleod  315 Magnus, U  356, 366 maintenance obligation see also Maintenance Regulation absence of family/family law relationship  263–264 administrative authority, conclusion or authentication by  260 adopted children  265

Index  473 agreements between parties  273–275, 277 Brussels Convention  259–260, 261, 290, 292–293, 337 Brussels I Regulation  135, 138, 259–260, 263, 290, 294–295, 298, 299, 316, 317–318, 326, 337 Brussels Ia Regulation  263–264, 316 care provision for sick or elderly  265 child or grandchild, claim against  264 civil law systems  264–265, 269 classification as  290 common law systems  264, 265 cross-border enforcement, generally  259–264 diverse national provisions  264–265, 269, 271 EEO Regulation  205–206, 215, 260, 295, 299, 337 English law, generally  315 French legal system  264–265, 304 generally  258–264 German legal system  265, 270, 304 grandparent, claim against  264, 265 Hague Convention  259, 261n, 262, 266–268, 272, 275, 276, 277, 282–283, 289–290, 295–296, 297–300, 320 in-laws, claims by  264–265, 291 Lugano Convention  317 matrimonial property regimes  264, 270 meaning of maintenance  264–265 New York Convention  262 notarial mediation  269–270, 269n, 272, 338 postnuptial agreements  315 prenuptial agreements see prenuptial agreement pro tem basis, award on  272 regulatory oversight  271–272 Schlosser Report  263, 292 unmarried parents  265 Maintenance Regulation Article 1  279, 289–293, 325 Article 2  279, 289, 295–297, 305, 311 Article 4  316–320 Article 8  286–288, 319 Article 15  320 Article 17  284, 298, 300 Article 18  300 Article 19  300–301, 304 Article 20  301, 309, 311 Article 21  302–304, 308 Article 22  291, 292, 304–305, 306 Article 23  298, 305

Article 24  305–308 Article 25  308 Article 26  308 Article 27  308 Article 28  308–309, 311 Article 30  309 Article 32  309 Article 33  309 Article 35  309 Article 36  309 Article 37  309 Article 39  310–311 Article 40  311, 312 Article 41  312 Article 42  285, 312–313 Article 43  313 Article 48  278–279, 325 Article 48(1)  278–286, 289, 300, 302, 303, 305, 306, 310, 311 Article 48(2)  286–289, 300, 301, 302–303, 306, 308, 310 Article 48(3)  299 Article 56  319 Article 68  294–295 Article 71  308, 309 Article 75  293–295, 305 Article 76  293–294 additional privileges, conferral  285 agreements, enforceable  273–275, 277 appeals  284, 301, 308–309, 310 application ‘as necessary’  279, 286–289, 300, 302–303, 307 authentic instrument, definition  273, 296–297 authentic instruments, generally  269–270, 272, 273–276, 277, 278–279, 313–314, 326–327 automatic recognition of instruments and agreements  273, 280–283, 327 case law  313–314 central authority, application to  298 challenging authentic instruments  284 choice of court agreements  316–320 common provisions  300, 310–313 competent authority  299 court settlements  276, 277, 278–280 creditor, definition  297 creditor–debtor balance  326 cross-border cooperation of central authorities  270, 271 debtor, definition  297 decision, definition  296, 298

474  Index definitions  295–297 Denmark  267, 298, 299–300, 305, 308 diverse national provisions  271 documentation to be supplied  270 domestic authenticity/enforceability  277, 278–279, 282, 285, 297, 300, 308, 313 drafting  265–268, 273–278 earlier jurisprudence  290, 292–293 enforcement, cross-border  258, 267–268, 270, 271, 273–276, 278–289, 290, 297–311, 326–327 enforcement authority, application to  298 exequatur system  267–268, 274, 275, 280, 281, 282–283, 285, 305–306 generally  337 habitual residence of debtor  308 in-laws, claims by  291 irreconcilable decisions  302–304, 308 judgments, variation  286–289 maintenance not defined  289, 290, 291 maintenance obligation, classification as  290 mutual recognition principle  280 notarial authentic instruments  269, 270, 271–272 prenuptial agreements see prenuptial agreement private agreements/declarations  269, 273–275 pro tem basis, instruments on  272 probative force  285 public policy exception  267, 275–276, 277, 306–307 purpose  258–259 recognition, cross-border  267–268, 270, 273–276, 278–286, 290, 297–311, 326–327 refusal of enforcement  302–304, 305–308 regulatory oversight  271–272 relationships covered by  291 révision au fond  285, 312 scope  289–295 Scottish legal system  305 standard forms  270, 298, 299, 301 State of origin  258 suspension of enforcement  302–304 temporal application  279, 293–295, 298, 305 translation of form where necessary  301 United Kingdom  267–268, 298–300, 305, 308 variation after change of circumstances  313

variation of judgments  286–289 variation of orders  258, 271, 272 width of claims permitted  265 Malta notarial authentic instruments  145 Mankowski, P  352, 364 marriage see also divorce; maintenance obligation; Maintenance Regulation; parental responsibility; prenuptual agreement circulation of documents relating to  96n European Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters  334 Matrimonial Property Regulation see Matrimonial Property Regulation material content see negotium matrimonial agreement French legal system  45 matrimonial property see also maintenance obligation; Maintenance Regulation definition of matrimonial property agreement  444 definition of matrimonial property regime  444 matrimonial property regimes, generally  264, 270 notarial mediation  338 post-divorce division  338 Matrimonial Property Regulation Article 1  442–443 Article 2  455 Article 3  443–445 Article 22  441–442 Article 37  454–455 Article 40  450 Article 42  453 Article 44  452 Article 45  450–451, 452–453 Article 46  452–453 Article 47  453 Article 48  453 Article 49  453–455 Article 50  453–455 Article 51  454–455 Article 52  453 Article 53  453 Article 54  453 Article 58  446–451, 453, 455 Article 59  450–455

Index  475 Article 64  445 Article 69  441–442 acceptance, cross-border  385–387, 389, 445–451 Annex 2 form  448–449, 452–453 appeals  451, 453–455 applicable law  386 authentic instruments  385, 444–445 challenging  446 conflict of laws rule  447, 448 court decisions  445 cross-border legal effect  385–387, 445–455 domestic enforceability of instrument  251 enforcement  386, 445, 451–455 exequatur procedure  452–453, 454–455 generally  337, 439–441 incompatible authentic instruments  455 jurisdiction  386 matrimonial property agreement, definition  444 matrimonial property regime, definition  444 non-participating states  385–386, 387–389, 445 public policy exception  446, 447, 551 recognition procedure  386–387 révision au fond  450 scope  441–443 temporal application  389, 441–442 triple Regulation, as  386 Maximillian I, Emperor  40, 66 Mayer, C  442, 444, 450–451 misrepresentation challenge on grounds of  53 English law  54, 54n mistake challenge on grounds of  53 Moreno de La Hija v Lee  224–226, 227, 231–235, 239, 243, 256 MS v PS  299, 310 mutual recognition principle  280, 337 Cassis de Dijon jurisprudence  281, 395–399 cross-border legal effect and  399 Succession Regulation  390, 395–399 name, authentic instruments relating to  96n Napoleonic laws, influence  19, 20, 67 negotium challenging authentic instruments  280–281, 313 challenging EEO certificate  214, 223, 248 challenging in French law  30, 52, 53, 57–59

challenging in German law  81–82 cross-border situations  85–86, 87, 393 non-contentious practice civil law systems  24–26 common law systems  23–24 preventive justice  23–26 non-notarial authority issue of authentic instruments  26n Northern Ireland generally  3 incoming authentic instruments  98 Norway Lugano Convention  125 notarial instrument authenticity  40 cross-border legal effect  87–91, 100–101 enforcement  40 evidence, as  40–41 executory force  37–39, 40, 42, 57, 67–68, 73–77, 84, 85 formalised evidential significance  41 historical development  33, 34–43 legalisation (consularisation)  93–94 modern legal codifications  41–43 probative force  37–39, 40, 42, 66–67, 73–75, 84, 85 seal  39, 94 notary Anwaltsnotar  65n archive see Protocol authentic instrument must be read to parties  28, 59 authorisation  3, 47–48 capacity to act  47–48, 94 competence and expertise  3, 27 copies, issue of  20–21 corrupt or suborned  256 creation of authentic instruments  26–28 domestic expansions of role  7–8 draft instrument  28, 59 drawing-up by see drawing-up authentic instruments duty to parties  25, 27, 28, 38 EEO Regulation, significance  186–190 England  3 evidence which may be recorded  41–42, 48–49 facts perceived by  1 forgery by, French concept of  47, 48, 50–57 formal identification of parties  29 French legal system  42, 43, 47–48

476  Index German legal system  12, 42, 44, 64–65, 64–65n global diversity of profession  101 hauptberufliche Notar (Nurnotar)  64n historical significance and development  26, 33, 34–43 Hungary  8 impartially, duty as to  25, 27, 59, 70 judicial or court related functions  21n, 403–407 legal efficacy of act, consideration  59 maintenance obligations, authentic instruments regarding  269 mediation by  269–270, 269n, 272, 338 modern legal codifications  41–43 nature and meaning of transaction, parties must be aware of  28 non-contentious legal practice  26 Northern Ireland  3 original instrument retained by  20–21 papal or apostolic  35–36 Protocol  20 public officer, as  25 record-keeping by  21, 26–27 regulation  13, 38, 41–42, 83 retirement  21 Scotland  3 seal  28, 36–37, 59, 94 secular  36–37, 36n, 38 signature of authentic instrument  28, 46, 59, 94, 205, 207–208, 350–351 status  187 two or more concluding same juridical act  27 verifiable evidence only to be recorded  41–42 verification of statements by  26–27, 28–30, 31, 48, 66, 84 Nurnotar  64n N.V. Sunclass Sonnevijver  174, 176 offer checking  59 recording  28 Pamboukis, C  396 Paraschas, K  356–357 parental responsibility authentic instruments  340–343, 344 Brussels II Convention  344 Brussels IIa Regulation  328, 330, 344, 346–348, 349, 350, 356, 358–360, 362–366

Brussels IIa Regulation recast  338, 346–348, 358–359, 366–384 development of intra-European legislation  329–337 enforcement infringing  362, 380 Hague Convention on  343 out-of-court agreements  342–344 Scottish legal system  341–342 parties authentic instrument must be read to  28, 59 bilateral instruments  27–28 consent  28, 59 contractual capacity  53, 94, 117 declarations to be recorded  28 details listed in authentic instrument  28 formal identification to notary  29 legal presence  27 legal transaction effected by  20 must be aware of nature and meaning of transaction  28 notary’s duty to advise impartially  25, 27, 59, 70 physical presence  27 proxy, representation by  59n, 62–63 signature by  28, 46, 59, 94 single  27 soundness of mind  48, 53 statements see statements of parties use of authentic instruments  20 voluntary declarations  28 Partnership assets, mortgage or security over French legal system  45 paternity development of EU law  335 German legal system  71 Picht, P  285 Pintens, W  269 Poland Matrimonial Property Regulation  388–389 Registered Partnership Property Regulation  388–389 postnuptial agreement English law  315 prenuptial agreement applicable law  320 choice of court agreements  316–320 enforcement  320, 324–326 English law  314–326 Lugano Convention  317

Index  477 maintenance obligations, generally  263–264, 313–314 Maintenance Regulation and  315–326 unfairness and irregularity  323 preventive justice authentic instruments  23, 33 civil law concept  22–23, 22–23n, 24–26, 33 common law concept  22 non-contentious practice  23–26 registration  25–26 probative force see also evidentiary status authentic copies  30 domestic enforceability see domestic authenticity/enforceability foreign authentic instruments  84, 85, 86–87, 90, 94, 97, 99, 100–103 foreign public documents  100 French legal system  48–50, 84n generally  28–30, 40, 42, 57, 84, 85 German legal system  66–67, 73–75, 84n procuration, French legal system  62–63, 62n promissory note whether authentic instrument  129 property regulations see Matrimonial Property Regulation; Registered Partnership Property Regulation; Succession Regulation Protocol, notarial compilation and maintenance costs  21 original instruments retained in  20–21 retirement of notary  21 proxy, party represented by  59n, 62–63 public authority, authentication by  11, 73, 126–131, 136, 137, 142–144, 148, 205, 206 public document authentic instrument as  21–22, 26–27, 28, 85 challenging status as  30 conversion from private document  28 foreign, probative force  100 public policy exception Brussels Convention  119, 121–122, 157, 169, 182, 333 Brussels I family of regulations  134–135, 137, 147–148, 157–161, 182 Brussels I Regulation  134–135, 157–161, 182 Brussels Ia Regulation  157–161, 182 Brussels IIa Regulation  356, 361–362 Brussels IIa Regulation recast  371, 379–380

capacity of party  166, 178 case law  162–168 categories  169–178 challenging enforcement on grounds of  148, 155, 156, 182 diverse national policies  170, 171–172 domestic formal validity  148–157 ECHR and  166–168 EEO Regulation  185, 242, 245, 248–256 enforcement injuring public policy  169–176 evasion of enforcement venue law  169, 176–178 exequatur procedure  108, 110–111, 113–114, 118–119, 121–122, 147, 157, 160–161, 168–169, 182 French legal system  150 hypothetical cases  168–178 illicit assignment of valid instrument  177, 182 impermissible discrimination  429–430 intimidation of debtor  175 judgments, cross-border enforcement  158–160, 171 Lugano Conventions  157–161 Maintenance Regulation  267, 275–276, 277, 306–307 Matrimonial Property Regulation  446, 447, 551 non-liquidated claims  174–175 Registered Partnership Property Regulation  446, 447, 551 Succession Regulation  392, 409, 410–411, 417, 427–430, 432, 434–437 Pula Parking  7 Radmacher v Granatino  315, 316, 319, 321–325, 323n, 326 RAND Report  191, 192–195, 242, 243 Rauscher, T  352, 401, 433 reciprocity cross-border effect  14, 106, 126 Lugano Convention  126 registered partnership circulation of documents relating to  96n Registered Partnership Property Regulation Article 1  443 Article 2  455 Article 3  443–445 Article 22  441–442 Article 37  454–455 Article 40  450

478  Index Article 42  453 Article 44  452 Article 45  450–451, 452–453 Article 46  452–453 Article 47  453 Article 48  453 Article 49  453–455 Article 50  453–455 Article 51  454–455 Article 52  453 Article 53  453 Article 54  453 Article 58  446–451, 452, 453 Article 59  450–452, 453 Article 64  445 Article 69  441–442 acceptance, cross-border  385–387, 389, 445–451 Annex 2 form  448–449, 452–453 appeals  451, 453–455 applicable law  386 authentic instruments  385, 444–445 challenging  446 conflict of laws rule  447, 448 court decisions  445 cross-border legal effect  385–387, 445–455 domestic enforceability of instrument  251 enforcement  386–387, 445, 451–455 exequatur procedure  452–453, 454–455 generally  337, 439–441 incompatible authentic instruments  455 jurisdiction  386 non-participating states  385–386, 387–389, 445 partnership property agreement, definition  444 public policy exception  446, 447, 551 recognition procedure  386–387 registered partnership, definition  444 révision au fond  450 scope  441–443 temporal application  389, 441–442 triple Regulation, as  386 registration common law systems  24 defect in, challenge on grounds of  148 evidentiary status of authentic instruments  25–26 French legal system  45 generally  21, 25–26, 350–351 German legal system  70 Reichscivilprozeβordnung (CPO)  68–69, 76

res judicata cross-border judgments, recognition  88, 99 révision au fond appeals  160 EEO prohibition  216, 220, 233, 234–242 Matrimonial Property Regulation  450 Registered Partnership Property Regulation  450 restriction on  149, 158–160, 234–242, 285, 312 Succession Regulation  428, 436, 439 Roman law Corpus Iuris Civilis  37 generally  20, 34–35, 41 instrumenta  34–35, 37 notarii  34–36, 41 scribae  34–36 tabelliones  34–36, 41 Romania Matrimonial Property Regulation  389 notarial authentic instruments from  145 notarial issue of divorce  339 Registered Partnership Property Regulation  389 Rome III Regulation  72n, 333, 337, 388–389 Schlosser Report Brussels Convention  128, 263, 292, 341 maintenance obligations  263, 292 Schubert, W  67 Scottish legal system authentic instruments, generally  2, 3, 341–342, 344 circulation of instruments within UK  98 incoming foreign instruments  14, 98 Maintenance Regulation  305 notaries  3 parental responsibility agreements  341–342 registration of enforceable obligations  3 separation Brussels II Convention  344 Brussels IIa Regulation  328–366 Brussels IIa Regulation recast  366–384 circulation of documents relating to  96n Rome III Regulation  72n, 333, 337, 388–389 settlement, cross-border enforcement Brussels Convention  118 Brussels I family of regulations  133, 137–138, 151 Brussels II Convention  338–343, 345 Brussels II Regulation  352 EAPO Regulation  4

Index  479 EEO Regulation  202–203 generally  75, 95, 106, 118 Hague Conference  282 Lugano Convention  124–125 Maintenance Regulation  276, 277, 278–280 shares, requirement to register  25 Sier, K  361–362 Slovakia Matrimonial Property Regulation  389 notarial authentic instruments from  145 Registered Partnership Property Regulation  389 Slovenia notarial issue of divorce  339 Solo Kleinmotoren GmbH v Emilio Boch  138 Spain Maintenance Payment Guarantee Fund  270 statements of parties declarations of fact  26–27 evidentiary status  28–30 inclusion in authentic instrument  29 notarially unverified facts  28–30 notarially verified facts  26–27, 28–30, 66, 84 public document, conversion into  27, 28 recording  26–27 Sturla v Freccia  21 succession common law systems  23–24 European Certificate of  392, 411–412 generally  335 non-harmonisation of authentic instruments  391, 398, 401 public documents, circulation  391–392 wills  23, 45, 391–392 Succession Regulation Article 1  401 Article 2  437 Article 3  401, 402–407, 414, 416–417, 421, 422, 424, 427, 428, 429, 430, 432 Article 34  392–395, 398, 399–400, 414–415, 416, 431 Article 35  393, 400, 415, 431 Article 39  435 Article 40  435, 439 Article 41  428, 436, 439 Article 44  432 Article 45  433 Article 46  432, 434 Article 47  434 Article 48  434 Article 49  434

Article 50  432, 434–437 Article 51  432, 434–437 Article 52  435 Article 53  434 Article 55  434 Article 59  401, 402, 407–408, 409, 410–434, 437–439, 446–447, 449 Article 60  401, 402, 403, 407, 409, 414, 415, 416–417, 419, 430–439, 446–447, 450, 453 Article 74  391–392, 403, 428 Article 78  432 Article 79  405–407 Article 81  410, 432 Article 83  401, 402 abstract formal enforceability  433 acceptance, cross-border  385–387, 389, 400, 402, 410–417, 419, 422, 423–424 adaptation of enforcement State’s procedural law  426–427, 430 Annex 2 form  404–405, 408, 410, 418–423, 425–426, 427, 428, 432, 433–434 appeals  429, 430, 432, 434–437 applicable law  386 authentic instruments  385, 387, 390–393, 399–400, 402–410 autonomous concept, instrument as  408–409 certificate of succession  411–412 challenging  410–413, 417–418, 425–426 conflict of laws rule  415–418, 422, 424–425, 426–427, 430, 431, 439 cross-border legal effect  385–387, 390–397, 407, 410–417, 430–437 declaratory instruments  431 definition of authentic instrument  402–403 demonstration of authenticity  407–410, 417 discrimination, impermissible  429–430 domestic enforceability of instrument  392, 407, 410–411, 421–422, 431, 432 domicile of defendant  432–433 draft text, meaning  399–400 drafting process  389–399 enforceable authentic instruments  431, 432 enforcement under  386–387, 392–393, 401, 410–419, 430–437 exequatur procedure  430–437 generally  337, 385–386 incompatible authentic instruments  437–439 inter vivos authentic instruments  391–392, 401, 403, 404

480  Index judicial function, notary exercising  403–407 jurisdiction  386 mutual recognition principle  390, 395–399 non-participating states  385–386, 387–389, 401 officially verified facts in instrument  408, 417, 422–423 public policy exception  392, 409, 410–411, 417, 427–430, 432, 434–437 recognition under  386–387, 392–397, 399–400, 401, 410, 414 révision au fond  428, 436, 439 scope  401 suspensive effect of challenge  425–426 temporal application  389, 401 translations  420, 434 triple Regulation, as  386 Sweden Lugano Convention  125 out-of-court divorce agreements  342, 343, 344 Switzerland enforcement in  30n, 125 Lugano Convention  125 notarial authentic instruments from  145 tabellio  34–36, 35n, 41 taxation, misrepresenting or concealing to avoid  58 titre exécutoire  144, 164–165 translation, right to request  156, 215, 243–244, 301, 365–366, 375, 420 trust, common law systems  23 Unibank principles  19, 83, 123, 127–132, 134, 135, 142–143, 144, 145, 161, 169, 205–208, 349–351, 402–403

United Kingdom Maintenance Regulation  267–268, 298–300, 305, 308 Matrimonial Property Regulation  385–386, 387–389 Registered Partnership Property Regulation  385–386, 387–389 Succession Regulation  385–386, 387–389 usurious demand, public policy exception  178 Van den Boogaard v Laumen  292, 293 verification of facts cross-border legalisation  93–94 French legal system  48 German legal system  66–67 notary, by  26–27, 28–30, 31, 84 Vogel v Lothschutz  256 Vollstreckbarkeit  75n, 84n Vollstreckungsklausel  68, 69, 80 Vollstreckungstitel  144 Walker, L  106 WB  404–406 will common law systems  23 French legal system  45 public documents, circulation as  391–392 Willenserklärung  76–77 Wolfsteiner, Hans  37 Z v Z  325 Zilken and Weber v Scholl  143 Zivilprozessordnung (ZPO)  69, 73–77, 78–79, 80–81, 104 Zulfikarpašić  7