Summary
As to recognition and execution of foreign judgements, the stay of proceedings which might be granted, under Art. 37 of Regulation (EC) No 44/2001 of 22 December 2000, by the court of the member State where recognition is sought, if an ordinary appeal against the judgment has been lodged, is lato sensu protective and cannot constitute per se the substantive cause of action of the proceedings against the declaration of enforceability of a foreign judgment at issue if not accompanied by the explicit request of its revocation.
Hence, the application made under Art. 37 of Regulation (EC) No 44/2001 to the competent Court of Appeal is not admissible, as the claimant primarily sought the stay of the proceedings for the declaration of enforceability in Italy of a French judgment condemning an Italian company to the payment of a sum and, only as an alternative, the provision of a guarantee for such payment (plus interests) by the party against whom enforcement is sought. In fact, the issue of the revocation of the decree that declares the foreign judgment enforceable in Italy is not deemed to be included in the thema decidendum of the opposition proceedings by virtue of a simple reference made in the preamble of the application to the need for its amendment. Rather, an explicit request to revoke such decree is necessary for the issue to be included in the thema decidendum (moreover, in the case at stake, the applicant had no interest in the stay of the proceedings provided for by Art. 37 of the regulation, as the appeal against the French judgment lodged in France had meanwhile been cancelled from the court’s register).
As to the grounds for refusing its recognition, the French judgment at issue is not contrary to the forum public policy – and, therefore, is enforceable in Italy under Art. 34 of Regulation (EC) No 44/2001 – in relation to either the solve et repete prohibition laid down by Art. 24 of the Italian Constitution or the prohibition of compound interests (anatocismo) or, else, the rights to a fair trial and to an effective remedy enshrined in the European Convention on human rights. On the one hand, the solve et repete principle is not contrary to international public policy, the fact that it has repeatedly been declared contrary to the Italian Constitution being confined to tax law and, thus, irrelevant to the issue of the provisional enforceability of an ordinary judgement in civil matters, pending its appeal; furthermore, compound interests (anatocismo) are not contrary to public policy, as they are not entirely prohibited by Italian law but only subject to limitations pursuant to Art. 1283 of the Italian Civil Code.
At last, the alleged infringement of Arts. 6 and 13 of the European Convention on human rights by the order of the French Supreme Court of Cassation to cancel the appeal proceedings from the register pursuant to Art. 1009-1 et seq. of the French Code of Civil Procedure is referred to in a far too general way, especially because that such sanction is neither automatic nor final and is related to the extraordinary nature of the proceedings before the French Supreme Court of Cassation (Cour de Cassation).