Short answer
Under Brussels I Recast, a civil or commercial judgment from one Member State is normally recognised and enforced in another without exequatur. Refusal is exceptional and requires an application by an interested party.
The three grounds most often relevant to procedural or decisional conflict are narrow:
- Service: a defaulting defendant did not receive the originating or equivalent document in sufficient time and in a manner allowing a defence. The ground normally disappears if the defendant could have challenged the judgment but did not.
- Irreconcilable judgments: the foreign judgment conflicts with a judgment between the same parties in the Member State addressed, or with an earlier recognisable judgment from another Member State or a third country involving the same cause of action and parties.
- Public policy: recognition would be manifestly contrary to public policy in the Member State addressed. This protects fundamental principles and rights, not ordinary legal or factual error.
The enforcing court may investigate these grounds, but it cannot review the substance of the original dispute.
The starting point is mutual recognition
Regulation (EU) No 1215/2012—Brussels I Recast—applies to judgments in civil and commercial matters within its scope. Article 36 begins:
“A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.” —
Under Article 39, origin-state enforceability carries across without exequatur. Before the first enforcement measure, the judgment and Article 53 certificate must generally be served on the person concerned. Article 43 enforcement-stage service is distinct from the Article 45 defective-service ground.
Recognition can be decided incidentally or on a dedicated application. Articles 45 and 46 make the same refusal grounds available for recognition and enforcement.
Service defects matter primarily for default judgments
Article 45(1)(b) applies where a judgment was “given in default of appearance”. Recognition may be refused:
“if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence”. —
This is not a penalty for every technical error. The question is whether the originating or equivalent document reached the absent defendant in time and in a way that genuinely enabled a defence. Article 45(1)(b) does not cover a defendant who appeared and defended, or automatically cover later-document defects; an extreme denial of the right to be heard may instead engage public policy.
The final part of Article 45(1)(b) prevents refusal where the defendant failed to commence proceedings to challenge the judgment when it was possible to do so. In ASML, C-283/05, the Court of Justice held under the predecessor provision that this exception presupposes awareness of the judgment's contents in sufficient time to challenge it. Mere abstract availability of a remedy is not enough if the defendant did not know what the judgment decided.
The origin-court certificate is important but not conclusive. Trade Agency, C-619/10, allows the requested court to check it against the originating document, translations, service method, addresses, delivery records, procedural timetable, judgment, date its contents became known and available origin-state remedies.
Where cross-border service was required, the validity of the originating service must also be tested under the applicable EU service rules. In Volvo (Service of a summons at the address of a subsidiary), C-632/22, the Court held that a parent company was not validly served merely by serving the summons at its subsidiary's address in another Member State, even though the two companies formed one economic unit for competition-law purposes.
Conflicting judgments must be legally irreconcilable
Article 45 distinguishes two conflicts:
- Under Article 45(1)(c), a judgment may be refused if it is irreconcilable with a judgment between the same parties in the Member State addressed. The text does not require that local judgment to be earlier.
- Under Article 45(1)(d), the conflicting judgment must be earlier and given in another Member State or a third State. It must involve the same cause of action and the same parties, and it must satisfy the conditions for recognition in the Member State addressed.
Different reasoning, legal analysis or outcomes on related issues do not suffice. In Hoffmann v Krieg, Case 145/86, the Court supplied the practical test:
“it should be examined whether they entail legal consequences that are mutually exclusive”. —
There, a maintenance order presupposing marriage conflicted with a divorce judgment between the same spouses. The Court also indicated that public policy cannot bypass the specific irreconcilability conditions.
A party should produce both judgments, identify the parties and claims, establish the required chronology and explain the incompatible legal consequences.
Public policy is an exceptional safety valve
Article 45(1)(a) permits refusal only where recognition is manifestly contrary to public policy in the Member State addressed. Each State identifies its interests, but EU law controls the concept's outer limits and mutual trust requires restraint.
Public policy can protect procedural fundamental rights. In Krombach, C-7/98, a defendant was prevented from having a lawyer defend the civil damages claim because he did not appear personally in connected criminal proceedings. The Court accepted that a manifest breach of the fundamental right to be defended could justify refusal. In Trade Agency, however, a default judgment lacking reasons could be refused only after an overall assessment showed a manifest and disproportionate breach of the Article 47 Charter right to a fair trial, including the impossibility of an appropriate and effective appeal.
Ordinary legal error does not meet the threshold. Diageo Brands, C-681/13, confirms that even a judgment said to conflict with EU law is not refused unless the error manifestly breaches a rule regarded as essential in the EU legal order and the national legal order, or a right recognised as fundamental. Except where special circumstances made remedies in the State of origin too difficult or impossible to use, the affected party is expected to pursue them there.
Two recent judgments illustrate how that demanding test can nevertheless be met. In Charles Taylor Adjusting, C-590/21, the Court accepted that public policy could justify refusing a judgment that operated as a “quasi” anti-suit injunction by imposing provisional damages for the costs of continuing proceedings in another Member State. In Real Madrid Club de Fútbol, C-633/22, enforcement of defamation damages had to be refused where it would produce a manifest breach of Article 11 Charter freedom of the press. The requested court must make that assessment without revisiting the originating court's findings and, if only part of the award is manifestly disproportionate, limit refusal to that portion. Both judgments interpreted the materially equivalent public-policy clause in the predecessor Brussels I Regulation.
Public policy also cannot be used for a general review of the originating court's jurisdiction. Article 45(3) permits jurisdiction review only for the Regulation's specified protective and exclusive-jurisdiction grounds and expressly prevents the public-policy test from being applied to jurisdiction rules.
The enforcing court cannot retry the case
Article 52 draws the boundary:
“Under no circumstances may a judgment given in a Member State be reviewed as to its substance.” —
The court addressed may establish facts necessary to decide a refusal application—such as what was served, whether remedies were realistically available, or whether two judgments have mutually exclusive consequences. It may not reconsider witness credibility, contractual interpretation, damages or the correctness of the original court's ordinary application of law.
If the judgment is being challenged in the Member State of origin, Articles 38 and 51 permit the court addressed to suspend the recognition or refusal proceedings, in the circumstances specified, rather than predetermine the challenge. In enforcement proceedings it may also limit enforcement to protective measures, make enforcement conditional on security, or suspend it.
A practical assessment
The resisting party should obtain the judgment, Article 53 certificate, originating document and service record; establish whether there was a true default and what origin-state remedies were available; compare conflicting judgments by parties, cause, date, recognisability and consequences; and identify the precise fundamental principle allegedly breached. A pending origin-state challenge may support suspension or protective limits.
The Regulation excludes several fields, including arbitration, insolvency, maintenance obligations, matrimonial-property regimes, wills and succession. Family-status judgments and other excluded matters may fall under different EU instruments with their own recognition and refusal rules. The Brussels I Recast grounds should therefore not be assumed to govern every cross-border judgment.
Conclusion
Refusal remains exceptional: service requires a default and real inability to defend, irreconcilability requires incompatible legal consequences, and public policy requires a manifest violation of an essential principle or right. None permits a retrial.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.