«Tolerated» lack of protection of the fundamental right to a defence in the european system of recognition of foreign legal judgments

Abstract

As one of the tools to create an area with no internal borders, the European Union seeks the recognition and enforcement of judgments given in its Member States.
In civil matters, the Regulation (EU) No 1215/2012 is the most important law. This Regulation however contemplates some exceptions. Among these, the exception of ordre public and the exception relating to decisions given by default. In both cases, pleading the exception requires the exhaustion of domestic remedies first.
Nevertheless, the CJEU has developed a case-law on the requirements of the procedural remedy through the default of appearance exception. This doctrine focuses on the requirements that an appeal must demonstrate to rectify the irregularities previously committed and thus allow the decision to be recognised in the addressed Member State.
According to this case-law, the defendant must have the opportunity to challenge the judgement in the Member State of origin, the procedural remedy must be governed by the principle of adversarial proceedings, and it must review whether the defendant was served with the document which instituted the proceedings in such a way as to enable him to arrange for his defence. If these requirements are met, recognition in the addressed Member State will be granted. As long as a procedural remedy is not available or entails an extraordinary effort for the defendant, recognition will be refused.
But, that said, an examination of these requirements leads us to wonder if such a procedural remedy is enough to guarantee the respect for the rights of defence, because the ECHR has stated that respect of the right of defence demands a comprehensive exam of proceedings, not limited to the «procedural remedy phase”. Thus the wording of letter (b) of article 45, paragraph 1, of the Regulation (EU) No 1215/2012 appears no to be sufficient to solve all infringements of the right to a defence when it has been committed in a lower instance.

Both perspectives seem contradictory, as ECHR case-law could bump into the CJEU’s doctrine. On the grounds of mutual trust, the CJEU has limited domestic courts’ power to review another Member State’s decision, even if the infringement of the right to a defence is involved.
This interaction between both courts is currently ruled by the presumption of equivalent protection. Case-law on the presumption lets us deduce that, regarding human rights, there is an unprotected area where some breaches will remain unfixed. This lack of protection is well known and tolerated by both the CJEU and the ECHR, and it arises when a breach of the defendant’s right to a fair trial, though real, has not been manifest and disproportionate.

Summary:
I. STARTING POINT: LEGAL JUDGMENTS GIVEN BY DEFAULT SUGGEST A QUESTION. II. CJEU’S CASE-LAW: THE PROCEDURAL REMEDY AS A TOOL TO EXAMINE THE MANNER IN WHICH THE DEFENDANT WAS SUMMONED. III. THE PROCEDURAL REMEDY IN THE ECtHR’S CASE-LAW. IV. INTERACTION BETWEEN THE CJEU AND THE ECtHR. THE ECtHR CONTROL OVER THE CJEU. V. THE REVIEW OF EXCEPTIONS TO RECOGNITION OF FOREIGN LEGAL JUDGMENTS: THE LESSONS LEARNT IN AVOTIŅŠ. VI. CONCLUSIONS.