To start providing characteristics of the current Ukrainian legal system, it is impossible not to mention the European integration which has been launched since 2014 and caused full renewal of national legislation. Notwithstanding the full-scale invasion of russian troops, Ukraine continues European integration processes and intends to become the EU Member State after the victory in the war. Moreover, it is worth noting all these processes are not related to particular branches of law and respective legislation: we are talking about deep structural revision of the role of the law as a tool to regulate legal social relations, changing the general approach and increasing the importance of basic law principles (primarily the accent is made on rule of law principle and its constituent elements). At the same time private international law is not an exception: having a special subject of legal regulation and specific methods, private international law being both domestic and international law requires special approach to revision and adaptation with regard to the EU integration process. Moreover, of particular scientific interest is the issue of adapting private international law of Ukraine to European legal mechanism on recognition and enforcement of judgments in order to ensure their free circulation in civil and commercial matters.
It should be noted that certain problems of the legislation on private international law with regard to EU integration were analyzed by such outstanding scientists as V. I. Kisil, A. S. Dovgert, R. A. Maidanik, N. S. Kuznetsova and others. However, today the doctrine of private international law does not provide a clear vision of the importance of European integration processes for further development of private international law legislation in Ukraine. To our mind, one of the most important aspects to be analyzed is available legal mechanisms to ensure recognition and enforcement of Ukrainian judgments in civil and commercial matters in the EU and vice versa.
To start with, it should be mentioned that an association between the European Union and its Member States, of the one part, and Ukraine, of the other part, is established with the aim, among others, to enhance cooperation in the field of Justice, Freedom and Security with the aim of reinforcing the rule of law and respect for human rights and fundamental freedoms (art. 1 (2(e) of the Association agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part as of May, 29, 2014) [1].
Article 24 of the mentioned above Agreement enshrines mutual obligations of the Parties to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial. When it comes to civil matters in particular, further EU-Ukraine judicial cooperation should be established on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children [1].
All mentioned above demonstrates once again the importance of legal mechanism to ensure free circulation of judgments in civil and commercial matters between Ukraine and the EU.
The main act of procedural civil and commercial legislation governing the interactions among the court systems of the Member States within the EU is 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 (hereinafter – the Brussels I bis Regulation) [2]. The provisions of this Regulation should be analyzed in details.
The main rules and requirements governing the recognition and enforcement of foreign judgments are enshrined in Chapter III of the Brussels I bis Regulation. It should be specifically underlined the principle according to which a judgment given in a Member State shall be recognized in the other Member States without any special procedure being required. Any interested party may apply for a decision that there are no grounds for refusal of recognition as referred to in the Regulation (art. 36 of the Brussels I bis Regulation). A party who wishes to invoke in a Member State a judgment given in another Member State shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity and special certificate issued pursuant to Article 53 of the Regulation [2]. The described above approach is known as the principle of automatic recognition.
When it comes to enforcement of judgments the same approach takes place: a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required. An enforceable judgment shall carry with it by operation of law the power to proceed to any protective measures which exist under the law of the Member State addressed (art. 39, 40 of the Brussels I bis Regulation).
Of particular interest for us there are provisions of the Brussels I bis Regulation referring to refusal of recognition and enforcement. According to article 45 of the Regulation on the application of any interested party, the recognition of a judgment shall be refused:
- if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;
- where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
- if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed;
- if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed;
- if the judgment conflicts with provisions of Section 3, 4 or 5 of the Chapter II with regard to policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant [2].
It is crucial to take into account that under the Brussels I bis Regulations the grounds for refusal of recognition and enforcement are the same: on the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Article 45 is found to exist (art. 46 of the Brussels I bis Regulation).
While analyzing other international instruments to ensure free circulations of foreign judgments it should be stated that the Brussels I bis Regulation enshrines one specific provision which is of particular importance for the aim of this research. Article 71 outlines that the Regulation shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. SO, the Brussels I bis Regulation shall not affect the application of the 2007 Lugano Convention [3].
Lugano Convention as of December, 21, 2007 is an international treaty on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters concluded between the European Union and Iceland, Norway, Swiss as these countries are not EU Member States and Denmark (as of Danish right to opt out). The legal norms enshrined in Lugano Conventions are similar to those in the Brussels I bis Regulation allowing automatic recognition of judgments given in a State bound by this Convention in the other States bound by it without any special procedure being required. It’s important to stress that for states that join the European Union after the conclusion of the Lugano Convention, the Convention applies automatically from their EU accession date. Taking all mentioned above into account the advantages of Lugano Convention ratification for Ukraine are obvious.
It is crucial to stress that the lack of applicable international legal instruments makes the recognition and enforcement of judgments between the EU and Ukraine extremely complicated and time consuming. To our mind, this issue could be solved through Lugano Convention ratification by Ukraine. Lugano Convention could be the most realistic and prompt way for Ukraine to establish automatic recognition and enforcement of Ukrainian judgments in civil and commercial matters in the EU (as well as the other way around) and to enhance judicial cooperation. We are sincerely committed to the idea that this can definitely contribute to accelerating Ukraine's European integration and obtaining the status of a Member State.
Literature:
1. Association agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part as of May, 29, 2014. URL: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:22014A0529(01) (дата звернення: 29.07.2023).
2. 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. URL: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32012R1215 (дата звернення: 29.07.2023).
3. Lugano Convention as of December, 21, 2007. URL: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:22007A1221(03) (дата звернення: 29.07.2023).
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