Handling civil legal cases that involve EU countries if there’s no Brexit deal

European Enforcement Orders (EEO) | Handcuffs and euro bills and wooden gavel as crime concept
European Enforcement Orders (EEO)

Handling civil legal cases that involve EU countries if there’s no Brexit deal

British and European playing cards with deal and no deal cards

For two years, the British government has been implementing significant work to negotiate a solution for the day the UK leaves the European Union. But what will happen if the UK must leave the EU with “no deal” in March 2019?

On 14 September 2018 the British government published a series of technical notices, which  sets out information to allow businesses and citizens to understand what a ‘no deal’ scenario would mean in legal terms.

Before 29 March 2019

Currently, the UK applies EU rules to determine:

  • which country’s courts hear a cross-border civil, commercial or family law case with other EU countries (jurisdiction)
  • which country’s laws apply (applicable law)
  • how a EU judgment should be recognised and enforced
  • how cross-border legal procedural matters are handled

These rules  cover civil and commercial disputes, including insolvency, and family law matters. The UK also applies a number of international agreements because of its EU membership, which enable elements of civil judicial cooperation with non-EU countries.

After March 2019 if there’s no deal

In the event of ‘no deal’, there would be no agreed EU framework for ongoing civil judicial cooperation between the UK and EU countries. Most of the EU rules operate on the basis of reciprocity between EU countries. Even if the UK would continue to apply the EU rules unilaterally after BREXIT, the UK would have a third country status, which would mean that EU countries would not consider the UK to be covered by these EU rules. As a result, UK businesses, citizens and families would not benefit from these rules.

In the event of a no deal scenario, the existing reciprocity would be lost. Therefore, the UK would consider to repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries. Only in some specific areas the UK would retain elements of the current EU rules, where they either do not rely on reciprocity to operate or where they form the basis for the  existing domestic or international laws.

The UK government confirmed that it would continue to apply existing international agreements, such as the Hague Conventions, which in many areas provide alternative rules covering the same areas as the EU-specific instruments. Where the UK currently participates in Hague Conventions because of our EU membership (namely the 2005 Hague Convention on Choice of Court Agreements and the 2007 Hague Convention on Maintenance), there should be made the necessary arrangements to continue to participate in these international agreements.

Any party to cross-border legal disputes should consider the effect that these changes would have on any existing or future cases involving parties in EU countries. Where appropriate you may wish to seek professional legal advice on the implications.

Civil and commercial judicial cooperation

In the absence of a deal with the EU, the following rules could be repealed for all parts of the UK:

  • Brussels Ia: 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
  • Small Claims Regulations: Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure
  • The EU/Denmark Agreement
  • The Lugano Convention

For legal questions in these areas UK courts would instead revert to the existing domestic common law and statutory rules, which currently apply in cross border cases concerning non-EU-States (i.e. Norway, Switzerland etc).

Businesses, individuals and legal practitioners should consider how these rules interact with the domestic rules of their relevant EU country to determine how jurisdiction in cross-border disputes should be established, recognised and enforced.

In certain circumstances other countries may not recognise judgments from UK courts!

But the UK would retain the Rome I and Rome II rules on applicable law in contractual and non-contractual matters, because they generally do not rely on reciprocity.

In the event of no deal, the UK government should take the necessary steps to formally re-join the 2005 Hague Convention on Choice of Court Agreements, because the UK participates because of its EU membership from this Convention.

Cross-border insolvency cooperation

The majority of the Insolvency Regulation, which covers jurisdiction, applicable law and recognition of cross-border insolvency proceedings, may be repealed in the UK. But the government intends to retain the EU rules that provide for the UK courts to have jurisdiction where a company or individual is based in the UK. The EU Insolvency Regulation Tests would no longer restrict the opening of proceedings in the UK. It would become be possible to open insolvency proceedings under domestic UK law regardless of whether the debtor is based elsewhere in Europe.

But UK insolvency orders would be subject to an application for recognision in an EU country to have effect there. In certain circumstances, some EU countries may not recognise UK insolvency proceedings, for example if that would prevent creditors from taking action against the assets held in that country.

ON the other hand EU insolvency proceedings and judgments would no longer be recognisable in the UK under the EU Insolvency Regulation, but may be recognised under the UNCITRAL Model Law on Cross-Border Insolvency.

Family law cooperation

In family law the key EU regulation is Brussels IIa (Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments) and the Maintenance Regulation (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).

Currently the UK is contracting state to a number of Hague Conventions on family law, which cover many of the areas as the Brussels IIa and Maintenance Regulations. Where this is the case, the the existing EU rules would be repealed and switch to the relevant Hague Conventions (parental responsibility matters, including jurisdiction, recognition and enforcement, rules for the return of abducted or wrongfully retained children, maintenance recognition and enforcement, central authority cooperation)

There is also a Hague Convention on divorce recognition, which has been implemented by provisions in the Family Law Act 1986.

In child abduction cases, the UK´s participation in the 1980 Hague Convention means that most of the measures would not change. The UK would most probably repeal the child abduction override provisions contained within Brussels IIa, because they are based on reciprocity.

Family law cooperation without corresponding Hague Conventions

In some areas f family laws there exist no Hague Conventions. For instance, currently divorce jurisdiction in UK is based on the Brussels IIa rules (place of residence). This regulation would no longer exist in a “no Deal” scenario. In England, Wales and Northern Ireland the Brussels IIa rules would be repealed, but replicated in English, Welsh and Northern Irish domestic law, so that these bases apply for England, Wales and Northern Ireland for all cases.

All parts of the UK would unilaterally recognise incoming Civil Protection Measures from EU countries, to ensure that vulnerable individuals would continue to be protected.

EU instruments covering both civil and family matters

The EU Service Regulation and the Taking of Evidence Regulation, which both rely on reciprocity to operate, might be repealed. However, there exists an equivalent Hague Convention in this area, to which the majority of EU countries are party.

The effect on ongoing civil and family cases

The UK Government aims to provide legal certainty for businesses, families and individuals who are involved in ongoing disputes on Brexit day. Cases ongoing on 29 March 2019 will continue under the current rules.

More information

This notice is meant for guidance only. You should consider whether you need separate professional advice before making specific preparations.

For further information please do not hesitate to contact our partner Monique Bocklage, accredited specialist attorney in Internationals Commercial Laws, Solicitor of England & Wales, EDIFICIA Rechtsanwälte Hamburg – Frankfurt – Germany www.edificia-internationals.com.

EU civil judicial instruments and international agreements

These EU instruments and international agreement apply to the UK currently:

  • Brussels Ia Regulation (1215/2012): rules which determine which EU country’s courts hear cases in civil and commercial matters (jurisdiction); and rules which enable judgments to be recognised and enforced across borders
  • Brussels IIa Regulation (2201/2003): rules about which EU country’s courts should decide matrimonial and parental responsibility matters; the recognition and enforcement of judgments; administrative cooperation; and cooperation in child abduction cases
  • Maintenance Regulation (4/2009): rules about which EU country’s courts should make decisions in maintenance matters; recognition and enforcement of child, spousal and other forms of family maintenance decisions; and administrative cooperation and assistance
  • Insolvency Regulation (2015/848): rules about jurisdiction, applicable law and recognition of insolvency proceedings in cross-border insolvencies
  • Service of Documents Regulation (1393/2007) and Taking of Evidence Regulation (1206/2001): rules to facilitate the service of legal documents in civil and family judicial proceedings involving parties in more than one EU country and rules about cooperation between the courts of EU countries in taking of evidence in civil and commercial judicial proceedings
  • Rome I Regulation (593/2008) and Rome II Regulation (864/2007): rules which determine the law which is applicable to cross-border contractual and non-contractual disputes
  • Civil Protection Measures Regulation (606/2013): rules ensuring the cross-border recognition and enforcement of civil protection measures
  • Small Claims Procedure Regulation (861/2007), European Enforcement Order Regulation (805/2004) and European Order for Payment Procedure Regulation (1896/2006): rules which establish streamlined procedures for determining small claims and enforcing uncontested judgments and debts
  • Cross-border Mediation Directive (2008/52): rules aimed at promoting the amicable settlement of cross-border disputes through mediation and Legal Aid Directive (2002/8): rules to cover the grant of legal aid in cross-border disputes
  • EU/Denmark 2005 Agreement: this extends the Brussels Ia rules to Denmark
  • Lugano Convention 2007: this deals with jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; it applies between EU countries and Switzerland, Norway and Iceland (European Free Trade Association Member States)
  • 2005 Hague Convention on Choice of Court Agreements: provides rules to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions
  • 2007 Hague Maintenance Convention: provides rules for the recognition and enforcement of child support and other forms of family maintenance and for administrative cooperation between contracting states

24.09.2018, Monique Bocklage

Monique Bocklage is qualified Attorney/Solicitor in Germany and United Kingdom. She is admitted to the German Bar (2003) and to the Bar of England and Wales (2004). She holds a Diploma in International Mergers & Acquisitions. In 2012 she was certified by TÜV Cologne as Compliance Officer. In 2016 Monique was admitted to the roll of accredited Specialist Attorneys in International Commercial Laws. The accredited title is issued by the German Bar Association only to those attorneys at law, who have successfully absolved the exam for specialisation in the respective area of law, and who have proven extensive professional experience and expertise in their area of specialisation. Monique is specialised in the consultation of foreign companies in Germany and United Kingdom, which export to and are active in Germany, United Kingdom and European Union. Due to the numerous companies we advise, who export goods to and are active within the European Union, we have been able to gather valuable and extensive experience, which we always incorporate into our legal counsel. Honorary appointments: legal advisor at Public Advisors Bureau of Hanseatic City of Hamburg.Monique speaks German and English.Member of Hanseatischen Rechtsanwaltskammer Hamburg and Law Society London