Default Judgments and the Rights of Defence in Brussels I bis Regulation / Decisioni contumaciali e diritto di difesa nel Regolamento Bruxelles I bis (DefaultDecisionDefence)

The project aims to contribute to the correct implementation of the Brussels I bis Regulation (Regulation (EU) No 1215/2012) within the framework of human rights obligations of the EU and its member States.

The principle of mutual recognition is increasingly being questioned by courts. So is the finding of the European Court of Human Rights that in principle the EU offers equivalent protection to that provided for under the European Convention of Human Rights (ECHR) - the Bosphorus presumption, upon which the relationship between the EU legal order and the ECHR is premised.

Procedural systems of many Member States allow the claimant to obtain default judgments without examination of the merits against non-appearing defendants, ensuring a swift and cost effective administration of justice. At the recognition stage, Member States courts are required to verify if “useful” and “effective” remedies are available for the defaulting defendant in the country of origin. Such enquiry is problematic, as information on how local remedies are applied in practice is often unavailable to litigants and courts. Unlike lis pendens rules, Regulation (EU) no 1215/2012 does not provide for the exchange of information between courts of Member States regarding available procedural remedies for the defaulting defendant opposing recognition of default judgments. Also, it is unclear whether recognizing courts are required to verify ex officio if and which remedies are available in the State of origin. This creates an obstacle to the development of the European area of justice and jeopardizes mutual trust.

By clarifying the standard of a useful and effective remedy, which according to Article 45, Regulation 1215/2012 is a condition for the recognition of default judgments, this project focuses on the effects of non-appearance of defendants in civil and commercial proceedings, with a view to improving mutual knowledge and understanding of potential obstacles to the functioning of the European area of justice.