Summary
No infringement of Regulation (EC) No 44/2001 of 22 December 2000, namely of its Art. 42, occurred in relation to the enforcement in Italy of a judgement which orders a periodic payment by way of a penalty issued by a Belgian court pursuant to Art. 1385-bis of the Belgian Code judiciaire (so called astrainte), even though one of the parties against whom enforcement was sought was not timely serviced with the judgment, if the competent Court of Appeal has ascertained that the same party fully exercised his right of defence (in the case at stake, having abundantly arranged his defence on any issues dealt with in the proceedings for opposition to the declaration of enforceability), as only actual breach of the right of defence are to be taken into consideration, the system created by EU law being based on the automatic recognition of the judgments given by the courts of any member State in all the other member States (save for the possibility to challenge its recognition on specific grounds provided for by EU uniform rules).
No infringement of Art. 49 of Regulation (EC) No 44/2001 of 22 December 2000 occurred with regard to the declaration of enforceability in Italy of an astrainte given by a Belgian court pursuant to Art. 1385-bis, par. 1 of the Belgian code judiciaire, which was not final at the time of the application for the exequatur but has become so during the proceedings for opposition, as such requirement, i.e. the enforceability of the foreign judgment must be satisfied at the time of the proceedings for opposition against the declaration of enforceability before the Court of Appeal, rather then at the time of the issuance of the judgment.
As to the grounds of non-recognition, a Belgian judgment which orders a periodic payment by way of a penalty for the delay in the delivery of confiscated shares of a Belgian company to the guardian previously appointed by another Belgian court is not contrary, by its nature, to Italian public policy, thus being enforceable in Italy pursuant to Arts. 45 and 34(1) of Regulation (EC) No 44/2001. In fact, an order to pay a sum, which becomes greater as the delay in the performance of the obligations increases, given by a court with the aim of having a non-fungible obligation enforced, does not conflict with any fundamental principle enshrined in the Constitution or other equivalent sources of law. On the contrary, such penalty protects the right of the creditor to the performance of the main obligation as recognised by a court, thus granting compliance with fundamental and shared principles, such as the right to a fair trial in the context of proceedings to determine civil rights and obligations – interpreted as the right to have effective remedies within a reasonable time – and the right to economic freedom. In this regard, the fact that Art. 614-bis of the Italian Civil Code (which provides for an indirect coercive measure intended to enforce non-fungible obligation to do something and refrain from doing something) did not exist at the time when the Belgian astrainte had been given is completely irrelevant since, apart from the fact that the compatibility with the public policy of the State where enforcement is sought must be assessed at the time of the proceedings for opposition against the declaration of enforceability of the foreign judgment, other rules providing for similar remedies for specific cases already existed in Italy at the time. Nor the astrainte conflicts with public policy with regard to its proportionality for, by its nature, protecting the creditor’s rights according to the principle “the later the enforcement, the greater the penalty”, it progressively increases in relation to the increasing delay and can be avoided simply by way of performance.