Summary
The recognition and enforcement proceedings were initiated on 18th June 2007.
The parties were Romanian husband and wife. They had a child, A, who was born in 1998. They divorced in 2000.
In 2002, mother and A came over to England. A contract order was rendered by the Romanian court in October 2006 (i.e. before the Romania had joined the EU). The order was sealed by a Romanian Appeal Court in 2007 (i.e. after Romania joined the Union). The question was whether the order was enforceable under the Brussels IIa regime.
On 1st August 2007, Munby J held that the order was unenforceable.
An appeal was made before the English Court of Appeal. The appeal was dismissed. The Court of Appeal held:
“28 Our conclusion is that the judgment was given on October 24, 2006. It was the judgment of October 24, 2006 which was declared enforceable on March 17, 2007. Brussels II Revised distinguishes in several places between a judgment and an enforceable judgment (see Arts
28(1), 41(1), 41(3), and 42(1) ), and in our view this supports the conclusion that it is the original judgment and not the order declaring it enforceable which is the relevant judgment.
29 In those circumstances it seems to us plain that when it was given it was not an enforceable judgment given in a Member State within the meaning of Article 41(1).” [28-29].
The Court further held:
“39 It seems plain that the drafting of Brussels II Revised did not cater for the admission of new Member States, and that a problem arises because the point has not, apparently, been addressed in the accession documents.
40 We do not consider that the solution is to be found in a literal interpretation of Art.64 , which would lead to manifestly absurd results. Our tentative view (since this is not a question which is necessary to decide) is that a purposive interpretation of Brussels II Revised in relation to the new Member States would involve an interpretation, or application by analogy, of Art.64(1) and (2) which would mean that Brussels II Revised would not apply to proceedings commenced before January 1, 2007, except that it could apply to judgments given after that date provided that jurisdiction was founded on rules which accorded with those in Chapter II of Brussels II Revised.” [39-40]