“The area of Justice, Freedom and Security will be judicial and … authentic!”, Jean-François SAGAUT, Chair of the CNUE’s European Authentic Instrument Working Group
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (or ‘Brussels Ia’) entered into force on 10 January 2015.
Thus, for all judicial decisions and authentic instruments issued since 10 January 2015, the rules that organise their movement within the European Union have been recast compared to the original Brussels I regulation (EU No 44/2001).
It has taken a long time to get to this point! Since the European authorities announced their wish to recast the Brussels I regulation, the CNUE, through the European Authentic Instrument working group, has been actively engaged at each stage of the drafting then adoption of this new European text.
The ambition declared by the legislator was important. The idea was to breathe new life into a pioneering text, which was slightly outdated, particularly with the entry into force of the regulation on the European Enforcement Order (EEO Regulation No 805/2004 of 21 April 2004) and more recently the regulation on cross-border successions (Regulation EU No 650/2012 of 4 July 2012).
This recast regulation further accentuates the EU Member States’ integration in an area of Justice, Freedom and Security, sought by the European treaties since 1999.
It is reassuring to note that the CNUE’s opinion has essentially been taken into account and that the observations made by the Notaries of Europe to the European authorities have been heeded.
Key points to note:
- The definition of authentic instrument according to the Community acquis resulting from the Unibank judgment has been included in the body of the text;
- Exequatur procedures have been withdrawn since 10 January 2015, when the new Brussels Ia regulation entered into force;
- A notarised document is enforceable in all the Member States without any particular procedure other than the issuing of an Enforcement Order certificate by the notary him/herself.
Accordingly, the notariats of each State and the CNUE must continue, in particular through the European Notarial Network, to strive to implement easier access to the knowledge of a foreign law when it is applicable.
The objective has thus been achieved and we can now believe that other regulations will emerge on this same model to fill the gaps in subjects not covered by the Brussels Ia regulation (the status and capacity of persons, matrimonial property regimes, wills and successions, arbitration and bankruptcy are currently excluded from the scope of this regulation, for example).
The CNUE therefore remains very active in 2015 in promoting the movement of authentic instruments in the European Union.