Update | Enforcement of UK Judgments in Ireland and the UK’s Request to Accede to the Lugano Convention

• Ireland

• Litigation and dispute management

07-05-2021

Before 1 January 2021 cross-border enforcement of judgments between Ireland and the UK was governed by Brussels Recast¹. Following the UK’s exit from the EU, and as and from the 1 January 2021, the enforcement of UK judgments in Ireland will be governed by the 2005 Hague Choice of Court Convention (“Hague 2005”) or Irish common law.

On 8 April 2020, the UK applied to accede to the 2007 Lugano Convention (“Lugano 2007”) in its own right, having previously been a party to it by virtue of its EU membership. Enforcement procedures between the jurisdictions under Lugano 2007 would be more straightforward than under Hague 2005 or common law rules as they are similar to those provided for by Brussels Recast. 

On 4 May 2021, the European Commission published its communication to the European Parliament and Council, giving its assessment on the UK’s application to accede to Lugano 2007.

Significantly, the European Commission considers that the EU should not give its consent to the accession of the UK to Lugano 2007. In circumstances where the European Commission’s assessment is followed, which is likely, then the enforcement of UK judgments in Ireland will continue to be governed by Hague 2005 or Irish common law.

As noted by the European Commission in its communication, “stakeholders concerned, and in particular practitioners engaged in cross-border contractual matters involving the European Union, should take this into account when making a choice of international jurisdiction”.

A summary of the European Commission’s communication is outlined below. The full text can be accessed here.

Lugano 2007

Lugano 2007 regulates international jurisdiction, as well as the recognition and enforcement of foreign judgments, in civil and commercial matters. It has been concluded between the European Union (the “EU”), Denmark, and three out of four members of the European Free Trade Association (“EFTA”) (ie Switzerland, Norway and Iceland) (together the “Contracting Parties”).

The UK’s Application

Lugano 2007 automatically applied to the UK until 31 January 2020, given its then status as an EU Member State. On 8 April 2020, the UK applied to accede to Lugano 2007 in its own right. Accession requires an application to the Depositary², which is then transmitted to the Contracting Parties. If the Contracting Parties unanimously agree, the Depositary will invite the applying State to accede to Lugano 2007.

External competence to conclude Lugano 2007, to agree to the accession of a new State and to object to the accession of a new State lies exclusively with the EU.

Consideration of the European Commission

On 4 May 2021, the European Commission published its communication to the European Parliament and Council, giving its assessment on the UK’s application to accede to Lugano 2007. Significantly, the European Commission considers that the EU should not give its consent to the accession of the UK to Lugano 2007.

The European Commission’s analysis was based on the following:-

1. The nature of the Lugano Convention – Lugano 2007 mirrors the EU’s rules of international jurisdiction and recognition and enforcement of civil and commercial judgments. It represents an “essential feature of a common area of justice” which is a “flanking measure” for the EU’s economic relations with the EFTA/European Economic Area countries. The European Commission’s analysis is that Lugano 2007 supports the EU’s relationship with third countries which have “a particularly close regulatory integration with the EU”;
2. The international framework for the EU’s civil justice cooperation with third countries – the European Commission noted that the EU’s “long-standing approach” is that the appropriate framework for cooperation with third parties is the multilateral Hague Conventions (ie Hague 2005 and the 2019 Hague Judgments Convention³). The UK has, for example, been a party to Hague 2005 in its own right since 1 January 2021.  

In conclusion, the European Commission stated that the UK is a “third country without a special link to the internal market”. Accordingly, it saw no reason for a departure from the EU’s general approach that the Hague Conventions should provide a framework for future cooperation.

The European Commission has given the European Parliament and the Council the opportunity to express their views in advance of informing the Depositary.  

For more information, please contact

Norman Fitzgerald, Partner in Dispute Resolution and Litigation - NormanFitzgerald@eversheds-sutherland.ie

Melanie Ardiff, Associate in Dispute Resolution and Litigation - MelanieArdiff@eversheds-sutherland.ie 

Paula Shine, Solicitor in Dispute Resolution and Litigation - PaulaShine@eversheds-sutherland.ie

1. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012  on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

2. The Swiss Federal Council acts as the official depositary of Lugano 2007 pursuant to Article 69(2) of Lugano 2007. 

3. Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters