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Last update: 04-11-2009
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Interim and precautionary measures - Community law

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“ I want measures to be taken quickly in another Member State without waiting for final judgment to be given.”

You will have to apply to the courts there for provisional enforcement of the judgment or for protective measures. In many Member States these measures are confined to assets located in the State of origin, or are difficult to implement in another Member State.

The Brussels I Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters lays down common rules on jurisdiction and the enforcement of judgments. As regards interim and precautionary measures, it contains two provisions which refer to the Member States' domestic la
  • Article 31 provides: “Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.” The Court of Justice of the European Communities has restricted the possibility of using such measures: Interim and precautionary measures for the purposes of Article 31 means only measures which, in the matters to which it applies, are designed to preserve a situation of fact or law in order to safeguard rights the recognition of which is applied for in other proceedings in a court hearing the case on the merits. In addition, the grant of interim or precautionary measures within the meaning of Article 31 is subject to the condition, among others, that there must be a real link between the purpose of the measure and the territorial jurisdiction of the court applied to in the Member State. Furthermore, the defendant's right to an adversarial procedure must be respected.
  • Article 47 provides: “1. When a judgment must be recognised in accordance with this Regulation, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State requested without a declaration of enforceability under Article 41 being required. 2. The declaration of enforceability shall carry with it the power to proceed to any protective measures.” However, paragraph 3 adds: “During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.”
The "Programme of measures" for implementation of the principle of mutual recognition of decisions in civil and commercial matters” of 30 November 2000 calls for progress in several stages in the matters to which the Brussels I Regulation applies. What is planned as a first series of measures directly concerning mutual recognition is further streamlining of intermediate measures and strengthening the effects in the requested State of judgments made in the State of origin by means of:
  • Establishing provisional enforcement;
  • Establishing protective measures at European level;
  • Improving attachment measures concerning bank accounts.

In 2002, the European Commission ordered a study on making more efficient the enforcement of judicial decisions within the European Union. The study's report analyses the situation in the then 15 Member States and proposed several measures to improve the enforcement of judicial decisions in the European Union, notably the creation of a European order for the attachment of bank accounts, a European protective order to the same effect and a number of measures enhancing the transparency of a debtor's assets.

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In October 2006, a Green Paper on this issue was adopted. With this Green Paper, the Commission launched a consultation on the possibility of creating a Community legislative instrument to make the enforcement of monetary claims more efficient, by ensuring that sums of money in a debtor's bank accounts in any Member State are frozen at the outset of proceedings.

Reference documents

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Last update: 04-11-2009

 
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