ART.
57 OF E.U. REGULATION 44/2001:
AUTHENTIC ISSUES OF HUMAN RIGHTS ?
AN
ARTICLE BY
GREGORY
TAYLOR
[NOTE : This article will soon be updated to take into
account
Regulation (EC) 805/2004 of 21
April 2004 relating
to
European Enforcement Orders for uncontested
claims, which
applies from
21 October 2005. To
download the new Regulation in PDF format, click
HERE ]
EU
Council Regulation (EC) No. 44/2001 of 22 December 2000
came into force on 1st March 2002 [to download the full
text of the Regulation in PDF format, click
HERE].
At first sight, a Regulation describing itself as
dealing with jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters
may seem to have little or no relevance to Notarial
acts, which are not "given by a court or tribunal", and
although Notaries are appointed by a Court or other
lawful authority, they are independent and therefore not
"officers of the court" (Art. 32). Turning however to
Art. 57.1, we find : "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
State, be declared enforceable there...".
Oddly, the Regulation does not define the term "authentic
instrument", but by Art. 57.3, the document must satisfy
the conditions necessary to establish its authenticity in
the EU Member State of origin. The concept of an "authentic
instrument", being unknown to the common law, has no
practical meaning in England and Wales. However, other
"equally authentic" versions of the Regulation translate
the term as : German - öffentliche Urkunden ("public
certifications") ; French - actes authentiques ("authentic
acts") ; Spanish - documentos públicos ("public documents")
; Italian - atti pubblici ("public acts").
The Regulation states that an "authentic instrument" within
Art. 57.1 and which is enforceable in the Member State of
origin can be enforced in another Member State if it has
also been declared enforceable in that other Member State
(and in the case of the UK, in the relevant jurisdiction
within the UK).
In the Continental European "civil-law" jurisdictions,
Notarial acts can give a valid title for enforcement,
provided that they are in "public" form. An example : A
German contract for the purchase of land must be entered
into in the form of a Notarial "public" act, and in the
document, the parties can submit to enforcement in the
event of default by either party. If the buyer defaults in
payment, the seller can enforce in Germany his rights
against the buyer without recourse to the Courts, as the
contract operates as an acknowledgment of indebtedness by
the buyer. Supposing the buyer has moved to, say, England,
then the Regulation provides for the acknowledgment to be
directly enforced in England, subject to the procedures
laid down in the Regulation, i.e. a certificate of
enforceability (Annex VI) by the German Notary (as the
"competent authority", within Art. 57.4, of the Member
State of origin), followed by a certificate of
enforceability by the "court or competent authority" (Art.
57.1) in England, i.e. the High Court of Justice (Annex V).
It is clear from the prescribed form of the Notary's Annex
VI certificate, which refers to "creditor" and "debtor",
that the enforcement can only be in relation to a
liquidated, i.e. already ascertained, sum of money, such as
would otherwise be the subject of a debt action if Court
proceedings were required.
Such cross-border enforceability of Continental European
contracts could be used in almost any contractual
situation, i.e. in addition to those cases specifically
prescribed by national law (such as real estate
transactions in Germany), provided that the contract is
entered into in Notarial "public" form. There can be no
doubt that "civil-law" EU Notaries will increasingly seek
to apply in other EU jurisdictions, including England and
Wales, enforcement provisions contained in their own
Notarial acts, through the simple device of drawing up
contractual documents in Notarial "public" form.
Art. 57.1 requires that the document be "formally drawn up
or registered as an authentic instrument". While the term
"formally" is also not defined in the Regulation, it is
simply taken for granted by "civil-law" jurisdictions that
Notarial acts drawn up in "public" form come within the
Regulation, even though the word "Notary" does not appear
in the Regulation.
As mentioned above, the term "authentic instrument" has
little or no meaning in "common-law" jurisdictions, such as
England and Wales, whose legal culture has been based since
the
Magna Carta of 1215
on the principle of "due process of law", i.e. on the
determination of legal rights and obligations by the
Courts. Our
Human Rights Act 1998,
which incorporates into UK law the
European Convention on Human
Rights
("ECHR"), can therefore be seen as a formal statutory
codification of a centuries-old legal and social
principle.
Art. 6 ECHR
states : "In the determination of his civil rights and
obligations..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law". The often-cited
advantage of an enforceable Notarial "public" act is that
it avoids the necessity for Court proceedings, however it
is precisely this "advantage" which makes it vulnerable to
attack under Art. 6 ECHR. It may well be that the debtor
has the right to have enforcement stayed and/or amended or
revoked by application to the Court in the original Member
State, but this is an entirely separate right to that
guaranteed by Art. 6 ECHR, which requires that the
determination of the obligation is itself effected by due
process of law, i.e. by a Court.
The Courts in the UK are increasingly extending the
application of the Human Rights legislation and principles
into areas which involve property and commercial issues.
Art. 57.1 of the Regulation states that the court with
which an appeal is lodged against the decision on an
application for a declaration of enforceability shall
refuse or revoke such a declaration only if enforcement of
the instrument is "manifestly contrary to public policy" in
the Member State addressed. It is submitted that our Courts
will probably hold that a prima facie breach of Art. 6 ECHR
renders the enforcement of Notarial "public" acts
"manifestly contrary to public policy", i.e. on the basis
that such acts purport to create extra-judicial remedies.
It is even possible that Notarial acts containing
enforcement provisions might not be enforceable at all in
any EU jurisdiction which has incorporated the ECHR into
its own national legislation. In any event, we will have to
wait and see how the Courts, both here and in other EU
jurisdictions, will seek to strike the right balance
between commercial practicalities and reciprocity within
the European single market, on the one hand, and the
consistent upholding of human rights throughout the
European Union, on the other hand.
Gregory Taylor [Notary Public]