STATUTORY INSTRUMENT

( S.I. No. 52 of 2002 )

EUROPEAN COMMUNITIES (CIVIL AND COMMERCIAL JUDGMENTS) REGULATIONS 2002

Published by the Stationery office, Dublin

To be purchased from the Government Publications Sales Office, Sun Alliance House, Molesworth Street, Dublin 2

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I, John O'Donoghue, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 ( No. 27 of 1972 ) and for the purpose of giving full effect to Council Regulation (EC) No. 44/2001 of 22 December 2000 ¹ on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, make the following Regulations:

Citation

1.         These Regulations may be cited as the European Communities (Civil and Commercial Judgments) Regulations 2002.

Commencement

2.         These Regulations shall come into operation on 1 March 2002.

Interpretation

3.         (1)       In these Regulations -

“Brussels I Regulation” means Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“Act of 1994” means No. 28 of 1994 );

“Act of 1998” means the Jurisdiction of Courts and Enforcement of Judgments Act 1998 ( No. 52 of 1998 );

“enforceable maintenance order” means -

(a)        a maintenance order respecting all of which an enforcement order has been made, or

(b)        if an enforcement order has been made respecting only part of a maintenance order, the maintenance order to the extent to which it is so ordered to be enforced;

“enforcement order” means an order for the recognition or enforcement of all or part of a judgment where the order -

(a)        is made by the Master of the High Court under Regulation 4, or

(b)        is made or varied -

(i)         on appeal from a decision of the Master under that Regulation, or

(ii)        on appeal from a decision of the High Court on such an appeal;

“judgment” means a judgment or order (by whatever name called) that is a judgment for the purposes of the Brussels I Regulation and, except in Regulations 8 and 10, includes an authentic instrument within the meaning of Article 57 and a settlement referred to in Article 58;

“maintenance” means maintenance within the meaning of the Brussels I Regulation;

“maintenance creditor” means, in relation to a maintenance order, the person entitled to the payments for which the order provides;

“maintenance debtor” means, in relation to a maintenance order, the person who is liable to make a payment under the order;

“maintenance order” means a judgment relating to maintenance;

“member state” means a member state of the European Communities other than the State and Denmark.

(2)       In these Regulations -

(a)        a reference to a Regulation is to a Regulation of these Regulations,

(b)        a reference to a paragraph or subparagraph is to the paragraph or subparagraph of the Regulation in which the reference occurs, and

(c)        a reference to a numbered Chapter or Article is to a Chapter or Article so numbered of the Brussels I Regulation.

Applications for recognition or enforcement of judgments

4.         (1)       An application under the Brussels I Regulation for the recognition or enforcement in the State of a judgment shall be made to the Master of the High Court.

(2)       The Master shall determine the application by order in accordance with the Brussels I Regulation.

(3)       If the application is for the enforcement of the judgment, the Master shall declare the judgment enforceable immediately on completion of the formalities provided for in Article 53 without any review under Articles 34 and 35 and shall make an enforcement order in relation to the judgment.

(4)       An order under paragraph (2) may provide for the recognition or enforcement of only part of the judgment concerned.

(5)       For the purposes of these Regulations references in Articles 42, 43, 45, 47, 48, 52, 53 and 57 to a declaration of enforceability may be treated as references to an enforcement order.

Enforcement of judgments

5.         (1)       Subject to Regulation 6 and the restrictions on enforcement contained in Article 47(3), if an enforcement order has been made respecting a judgment, the judgment -

(a)        shall, to the extent to which its enforcement is authorised by the enforcement order, be of the same force and effect as a judgment of the High Court, and

(b)        may be enforced by the High Court, and proceedings taken on it, as if it were a judgment of that Court.

(2)       Subject to paragraphs (3) and (6), paragraph (1) shall apply only to a judgment other than a maintenance order.

(3)       On application by the maintenance creditor under an enforceable maintenance order, the Master of the High Court may by order declare that the following shall be regarded as being payable under a judgment referred to in paragraph (1):

(a)        any sum payable under the enforceable maintenance order as a periodic payment but not paid before the relevant enforcement order was made,

(b)        a lump sum (not being a sum referred to in subparagraph (a)) which is payable under the enforceable maintenance order.

(4)       A declaration shall not be made under paragraph (3) unless the Master considers that by doing so the enforceable maintenance order would be more effectively enforced respecting any sum referred to in that paragraph.

(5)       If such a declaration is made, the sum to which it relates shall be deemed for the purposes of this Part to be payable under a judgment referred to in paragraph (1) and not otherwise.

(6)       A maintenance order shall be regarded as a judgment referred to in paragraph (1) if the District Court does not have jurisdiction to enforce it under Regulation 6.

Enforcement of enforceable maintenance orders

6.         (1)       In this Regulation -

“Act of 1940” means No. 23 of 1940 );

“Act of 1976” means No. 11 of 1976 );

“Act of 1987” means No. 26 of 1987 ).

(2)       Subject to Regulation 7(4) and the restrictions on enforcement contained in Article 47(3), the District Court shall have jurisdiction to enforce an enforceable maintenance order.

(3)       An enforceable maintenance order shall, from the date on which the maintenance order was made, be deemed for the purposes of -

(a)        paragraph (1),

(b)        section 98(1) of No. 18 of 1954 ), and

(c)        subject to the Brussels I Regulation, the variation or discharge of that order under section 6 (as amended by the Act of 1987) of the Act of 1976,

to be an order made by the District Court under section 5, 5A or 21A of the Act of 1976, as may be appropriate.

(4)       Paragraphs (2) and (3) shall apply even though an amount payable under the enforceable maintenance order exceeds the maximum amount the District Court has jurisdiction to award under the appropriate enactment mentioned in paragraph (3).

(5)       Where an enforceable maintenance order is varied by a court in a member state and an enforcement order has been made respecting all or part of the enforceable maintenance order as so varied, or respecting all or part of the order effecting the variation, the enforceable maintenance order shall, from the date on which the variation takes effect, be enforceable in the State only as so varied.

(6)       Where an enforceable maintenance order is revoked by a court in a member state and an enforcement order has been made respecting the order effecting the revocation, the enforceable maintenance order shall, from the date on which the revocation takes effect, cease to be enforceable in the State except in relation to any sums under the order that were payable, but not paid, on or before that date.

(7)       Subject to paragraph (3) to (5) of Regulation 5, the following shall be regarded as being payable pursuant to an order made under section 5, 5A or 21A of the Act of 1976:

(a)        any sum payable under an enforceable maintenance order but not paid before the relevant enforcement order was made;

(b)        any costs of or incidental to the application for the enforcement order that are payable under Regulation 7(2).

(8)       The jurisdiction vested in the District Court by this Regulation may be exercised by the judge of that Court for the time being assigned to -

(a)        if the maintenance debtor under an enforceable maintenance order resides in the State, the district court district in which the debtor resides or carries on any profession, business or occupation, or

(b)        if such a maintenance debtor does not so reside but is employed by an individual residing or having a place of business in the State or by a corporation or association having its seat in the State, the district court district in which the individual resides or the corporation or association has its seat.

(9)       Despite anything to the contrary in an enforceable maintenance order, the maintenance debtor shall pay any sum payable under that order to -

(a)        in a case referred to in paragraph (8)(a), the district court clerk for the district court area in which the debtor for the time being resides, or

(b)        in a case referred to in paragraph (8)(b), a district court clerk specified by the District Court,

for transmission to the maintenance creditor or, if a public authority has been authorised by the creditor to receive the sum, to the public authority.

(10)     If a sum payable under an enforceable maintenance order is not duly paid and if the maintenance creditor so requests in writing, the district court clerk concerned shall make an application respecting that sum under -

(a)        section 8 (which relates to the enforcement of certain maintenance orders) of the Act of 1940, or

(b)        section 10 (which relates to the attachment of certain earnings) of the Act of 1976.

(11)     For the purposes of paragraph (10)(a) a reference to an applicant in section 8 (other than subsections (4) and (5)) of the Act of 1940 shall be construed as a reference to the district court clerk.

(12)     Nothing in this Regulation shall affect the right of a maintenance creditor under an enforceable maintenance order to institute proceedings for the recovery of a sum payable to a district court clerk under paragraph (9).

(13)     Section 8(7) of the Act of 1940 does not apply to proceedings for the enforcement of an enforceable maintenance order.

(14)     The maintenance debtor shall give notice of any change of address to the district court clerk for the district court area in which the debtor has been residing.

(15)     A person who, without reasonable excuse, contravenes paragraph (14) is guilty of an offence and liable on summary conviction to a fine not exceeding €1,300.

(16)     If there are two or more district court clerks for a district court area, a reference in this section to a district court clerk shall be construed as a reference to any of them.

(17)     For the purposes of this Regulation the Dublin Metropolitan District is deemed to be a district court area.

(18)     References in this section to sections 5A and 21A of the Act of 1976 are to those sections as inserted therein by the Act of 1987.

Interest on judgments and payment of costs

7.         (1)       Where, on application for an enforcement order respecting a judgment, it is shown -

(a)        that the judgment provides for the payment of a sum of money, and

(b)        that, in accordance with the law of the member state in which the judgment was given, interest on the sum is recoverable under the judgment at a particular rate or rates and from a particular date or time,

the enforcement order, if made, shall provide that the person liable to pay the sum shall also be liable to pay the interest, apart from any interest on costs recoverable under paragraph (2), in accordance with the particulars noted in the order, and the interest shall be recoverable by the applicant as though it were part of the sum.

(2)       An enforcement order may provide for the payment to the applicant by the respondent of the reasonable costs of or incidental to the application for the enforcement order.

(3)       A person required by an enforcement order to pay costs shall be liable to pay interest on the costs as if they were the subject of an order for the payment of costs made by the High Court on the date on which the enforcement order was made.

(4)       Interest shall be payable on a sum referred to in paragraph (1)(a) only as provided for in this Regulation.

Currency of payments under enforceable maintenance orders

8.         (1)       An amount payable in the State under a maintenance order by virtue of an enforcement order shall be payable in the currency of the State.

(2)       If the amount is stated in the maintenance order in any other currency, payment shall be made on the basis of the exchange rate prevailing, on the date the enforcement order is made, between the currency of the State and the other currency.

(3)       For the purposes of this Regulation a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the currency of the State shall be admissible as evidence of the facts stated in the certificate.

(4)       In this Regulation, “authorised institution” means any of the following:

(a)        a body licensed to carry on banking business under the Central Bank Acts, 1942 to 1998, or authorised to carry on such business under the ACC Bank Acts, 1978 to 2001, or regulations under the European Communities Acts, 1972 to 1998,

(b)        a building society within the meaning of No. 17 of 1989 );

(c)        a trustee savings bank within the meaning of the Trustee Savings Banks Acts, 1989 and 2001,

(d)        An Post.

Proof and admissibility of judgments and certain translations

9.         (1)       For the purposes of the Brussels I Regulation a document that is duly authenticated and purports to be a copy of a judgment shall without further proof be deemed to be such a copy, unless the contrary is shown.

(2)       A document purporting to be a copy of a judgment shall be regarded for those purposes as being duly authenticated if it purports -

(a)        to bear the seal of the court or authority concerned, or

(b)        to be certified by a judge or officer of the court or authority to be a true copy of the judgment.

(3)       A document which -

(a)        purports to be a translation of -

(i)         a judgment given by a court of a member state,

(ii)        an authentic instrument within the meaning of Article 57(1),

(iii)       a settlement within the meaning of Article 58, or

(iv)       a certificate mentioned in Article 54, 57(4) or 58, and

(b)        is certified as correct by a person competent to do so,

shall be admissible as evidence of the document of which it purports to be a translation.

Provisional, including protective, measures

10        (1)       On an application for provisional or protective measures in accordance with Article 31 the High Court may grant any such measures that the Court has power to grant in proceedings that, apart from these Regulations, are within its jurisdiction if -

(a)        proceedings have been or are to be commenced in a member state, and

(b)        the subject matter of the proceedings is within the scope of the Brussels I Regulation (whether or not that Regulation has effect in relation to the proceedings).

(2)       On such an application the High Court may refuse to grant the measures sought if, in its opinion, the fact that, apart from this Regulation, the Court does not have jurisdiction in relation to the subject matter of the proceedings makes it inexpedient for it to grant the measures.

(3)       Subject to Article 47(3), an application to the Master of the High Court for an enforcement order respecting a judgment may include an application for any protective measures the High Court has power to grant in proceedings that, apart from these Regulations, are within its jurisdiction.

(4)       Where an enforcement order is made, the Master shall grant any such protective measures so applied for.

Domicile

11.       (1)       For the purposes of the Brussels I Regulation and these Regulations -

(a)        an individual is domiciled in the State or another state (not being a member state) only if he or she is ordinarily resident in the State or that other state,

(b)        an individual is domiciled in a place in the State only if he or she is domiciled in the State and is ordinarily resident or carries on any profession, business or occupation in that place, and

(c)        a trust is domiciled in the State only if the law of the State is the system of law with which the trust has its closest and most real connection.

Venue for certain proceedings

12.       (1)       Subject to Chapter 11, the jurisdiction of the Circuit Court in proceedings that may be instituted in the State by virtue of Article 2, 9(1)(a), 12, 16, 19(1) or 20 or the proviso to Article 22(1) shall be exercised by the judge of the Court for the time being assigned to the circuit where the defendant, or one of the defendants, ordinarily resides or carries on any profession, business or occupation.

(2)       Paragraph (1) shall apply where, apart from that paragraph, the Circuit Court's jurisdiction would be determined by reference to the place where the defendant resides or carries on business.

(3)       The jurisdiction of the Circuit Court or District Court in proceedings that may be instituted in the State under Article 9(1)(b) or 16 by a plaintiff domiciled in the State may be exercised by the judge for the time being assigned -

(a)        in the case of the Circuit Court, to the circuit, and

(b)        in the case of the District Court, to the district court district,

in which the plaintiff or one of the plaintiffs ordinarily resides or carries on any profession, business or occupation.

Amendment of Act of 1994

13.       (1)       The Act of 1994 is amended -

(a)        in section 3(1), by the insertion of the following definition:

“ ‘the Brussels I Regulation’ means Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”,

(b)        in section 4(2) (as amended by section 45(b) of the Family Law Act, 1995 , and section 53(b) of the Family Law (Divorce) Act, 1996 ), by the substitution of the following paragraph for paragraph (a):

“(a)       (i)        For the purposes of section 8 of the Enforcement of Court Orders Act 1940 , the Acts of 1976, 1995, 1996 and 1998, the Brussels I Regulation and this Act the Central Authority shall have authority to act on behalf of a maintenance creditor or of a claimant (as defined in section 13(1)), and references therein to a maintenance creditor or to such a claimant shall be construed as including references to that Authority.

(ii)        In subparagraph (i) “maintenance creditor” means, in the context of the Brussels 1 Regulation, a maintenance creditor referred to in Article 5(2) of that Regulation.”,

(c)        in section 5, by the insertion of “and the Brussels I Regulation” after “Jurisdiction of Courts and Enforcement of Judgments Act, 1998”,

(d)        in section 6(1), by the substitution of the following for the definition of “reciprocating jurisdiction”:

“ ‘reciprocating jurisdiction’ means a Contracting State within the meaning of the Act of 1998 or, as appropriate, a member state within the meaning of the Brussels I Regulation;”,

(e)        in section 7 -

(i)         by the insertion in subsection (1) of “or with the Brussels I Regulation” after “the Act of 1998”,

(ii)        by the substitution in subsection (2) of “In the case of an application under the Brussels Convention or the Lugano Convention the Master shall consider it” for “The Master shall consider the application”,

(iii)       by the insertion of the following subsection after subsection (2):

“(2A) In the case of an application under the Brussels I Regulation the Master shall determine it in accordance with Regulation 4 of the European Communities (Civil and Commercial Judgments) Regulations, 2002.”,

(iv)       by the insertion in subsection (4)(a) of “or Article 43 (right of appeal against declaration of enforceability) of the Brussels I Regulation, as appropriate” after “Brussels Convention”,

(v)        by the insertion in subsection (5)(a) of “or (2)” after “subsection (1)”, and

(vi)       by the insertion in subsection (5)(b)(iv) of “or Article 53, 54 or 57 of the Brussels I Regulation, as appropriate,” after “Brussels Convention”,

(f)         in section 14 -

(i)         by the insertion in subsection (1) of the following paragraph after paragraph (a):

“(aa)     if the request is accompanied by an order of a court of a member state (as defined in the Brussels I Regulation), transmit the request to the Master of the High Court for determination in accordance with that Regulation”, and

(ii)        by the substitution in subsection 9A (inserted by the Act of 1998) of the following paragraph for paragraph (a):

“(a)      an instrument or settlement within the meaning of the Brussels Convention, as defined in Part II, or the Brussels I Regulation”,

and

(g)        in section 20 by the substitution of the following for subsection (1):

“(1)      The Central Authority may, for the purposes of obtaining any information that is necessary or expedient for the performance of its functions, require any holder of a public office or body financed wholly or partly by means of moneys provided by the Oireachtas to provide it with any information in the possession or procurement of the holder or body as to the whereabouts, place of work, or location and extent of the assets, of a person who is liable to make payments under a maintenance order (the maintenance debtor) or respondent, and the holder or body shall, as soon as practicable, comply with the requirement.”.

(2)       References in this section to sections of the Act of 1994 are to those sections as amended by section 22 of the Act of 1998.

Restriction of Act of 1998

14.       The Act of 1998 shall, except as provided in Article 68, cease to apply as between the State and member states.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

This Regulation sets out the effect on domestic legislation of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) and makes the necessary provisions for the good administration of the Regulation.

Insofar as Member States of the European Community, other than Denmark, are concerned, the Brussels I Regulation supersedes the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It is the provisions of this Regulation rather than those of the Jurisdiction of Courts and Enforcement of Judgments Act 1998 which will now apply between relevant Member States.

¹ O.J. L12 of 16.1.2001