Winning a case is half the work. A judgment is a piece of paper until it is enforced against something the losing party owns, and if those assets sit in a different country from the court that gave judgment, enforcement becomes a second legal exercise in its own right. For a cross-border creditor, the enforcement analysis should come before the litigation, not after, because there is little point winning a judgment that cannot reach the assets.
Inside the European Union it is designed to work
The great advantage of litigating within the European Union is that a judgment given in one member state is, as a general rule, recognized and enforceable in the others without the cumbersome re-litigation that applies between many countries. The framework is built precisely to allow a creditor with a judgment from one member state to enforce it against assets in another with limited additional process. This is a genuine and often underappreciated reason to structure both contracts and disputes within the Union where a counterparty and its assets are European.
The mechanism is worth stating precisely, because the practical planning follows from it. Article 36(1) of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provides that a judgment given in a Member State is recognised in the others without any special procedure being required, and Article 39 provides that a judgment enforceable in its home state is enforceable in the others without any declaration of enforceability being required. Recital 26 explains the reasoning and the consequence in the same breath: mutual trust justifies abolishing the declaration of enforceability, with the result that a judgment given by the courts of one Member State should be treated as if it had been given in the state where it is enforced. Article 52 closes the door on the obvious counter-attack by providing that under no circumstances may the judgment be reviewed as to its substance. Article 66(1) fixes the perimeter in time, applying the Regulation only to proceedings instituted on or after 10 January 2015.
The certificate is what makes the judgment travel
Abolishing the exequatur did not abolish the paperwork, it moved it. Article 53 requires the court of origin, at the request of any interested party, to issue a certificate using the form set out in Annex I to the Regulation. Article 42(1) then tells the creditor exactly what to put in front of the enforcement authority abroad: a copy of the judgment satisfying the conditions necessary to establish its authenticity, and the Article 53 certificate certifying that the judgment is enforceable and containing an extract of the judgment together with, where appropriate, the relevant information on recoverable costs and on the calculation of interest. Where recognition rather than enforcement is invoked, Article 37 asks for the same two documents.
The Annex I form is where the enforcement analysis becomes concrete, because its fields are the facts a foreign authority will be looking at. It identifies the court of origin and the parties, the date and reference number of the judgment, whether the judgment was given in default of appearance and, if so, the date on which the document instituting the proceedings was served on the defendant, and whether the judgment is enforceable in the state of origin without further conditions, against which persons and as to which parts. Article 43(1) then adds the step that most often trips up a creditor in a hurry: where enforcement is sought, the certificate must be served on the person against whom enforcement is sought before the first enforcement measure, accompanied by the judgment if that has not already been served. Article 54 deals separately with the case where the judgment contains a measure unknown in the law of the state addressed, which is to be adapted to an equivalent domestic measure without producing effects going beyond those available in the state of origin.
The limited grounds to resist
Enforcement within the Union is not automatic in the sense of being unchallengeable, but the grounds on which a debtor can resist are narrow: essentially matters of public policy, proper service, and irreconcilable judgments, rather than a re-argument of the merits. A debtor cannot generally reopen the case in the enforcing country. That narrowness is what gives a European judgment its practical value across borders.
Article 45(1) sets out the complete list, and it is worth reading as a closed one. Recognition is to be refused where it would be manifestly contrary to public policy in the state addressed; where the judgment was given in default of appearance and the defendant was not served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange his defence, unless he failed to challenge the judgment when it was possible for him to do so; where the judgment is irreconcilable with a judgment between the same parties in the state addressed; where it is irreconcilable with an earlier judgment given in another Member State or in a third state involving the same cause of action and the same parties, provided that earlier judgment itself qualifies for recognition; and where it conflicts with the protective jurisdiction rules for insurance, consumer and employment matters when the weaker party was the defendant, or with the exclusive jurisdiction rules. Article 45(3) then removes the obvious workaround by providing that the jurisdiction of the court of origin may not otherwise be reviewed and that the public policy test may not be applied to the jurisdiction rules at all.
The procedure matters as much as the grounds. Under Article 46 enforcement is refused only on the application of the person against whom it is sought, and Article 47 sends that application to the court each Member State has designated and communicated to the Commission, with the rest of the procedure governed by the law of the state addressed. The portal on which those designations are published lets a creditor identify in advance the courts competent to hear an application for refusal of enforcement and the appeals against it. While that application is pending, Article 44 allows the court in the state addressed, on that person’s application, to limit enforcement to protective measures, to make it conditional on security, or to suspend it, and enforcement must be suspended, again on his application, where enforceability has been suspended in the state of origin. Article 51 adds a discretionary stay where an ordinary appeal is still open at home.
A judgment you cannot enforce is an expensive opinion. The question of where the assets are belongs at the start of the dispute, not the end.
Outside the Union it gets harder
Against assets in a third country, enforcement depends on that country’s own rules and on any treaty in place, and it can range from straightforward to nearly impossible. This is one reason arbitration is often preferred for genuinely global contracts: an arbitral award enjoys wide international enforceability under a convention adopted by most trading nations, frequently more readily than a national court judgment. We deal with the choice in our note on governing law and jurisdiction in cross-border contracts.
The nearest neighbours are the easiest case and still slower than the Union. Under the Lugano Convention of 30 October 2007, recognition under Article 33 needs no special procedure, but Article 38 requires a judgment to be declared enforceable before it can be enforced in another bound state, which is precisely the step the Union regime abolished. Article 41 makes that first stage quick and one-sided: the judgment is declared enforceable immediately on completion of the formalities, without any review of the grounds of refusal and without the debtor being entitled to make submissions. The contest comes afterwards, and it comes with a clock, because Article 43(5) gives one month from service to appeal, extended to two months where the debtor is domiciled in a bound state other than the one that granted the declaration. The Convention names the courts to which the application goes in Denmark, Iceland, Norway and Switzerland alongside the Member States, and Article 36 repeats that a foreign judgment may under no circumstances be reviewed as to its substance.
Further out, the instrument to check is the Hague Judgments Convention of 2 July 2019, and the check is the point. The Convention entered into force on 1 September 2023, and the official status table of which states are contracting parties and from what date it binds each of them shows how uneven the coverage still is: the European Union acceded on 29 August 2022 with effect from 1 September 2023, Ukraine is bound from the same date, the United Kingdom ratified on 27 June 2024 with effect from 1 July 2025, Uruguay from 1 October 2024, and Albania, Montenegro and Andorra only during 2026. Signature is not ratification, which is where the planning error usually creeps in: the United States signed on 2 March 2022 and is not bound, and the same is true of Israel, Costa Rica, North Macedonia and the Russian Federation. Denmark does not appear in the table at all, so the Union accession does not carry it.
The enforcement act itself is still national law
None of these instruments seizes a bank account or registers a charge. Article 41(1) of the Regulation says so directly: the procedure for enforcing a judgment given in another Member State is governed by the law of the state addressed, and the judgment is enforced there under the same conditions as a domestic judgment. Article 41(2) adds that national grounds for refusing or suspending enforcement continue to apply so far as they are not incompatible with Article 45, and Article 41(3) removes two old frictions by providing that the enforcing party need not have a postal address or an authorised representative in the state addressed. The practical consequence is that the creditor still has to run a domestic enforcement file, with domestic formalities, domestic deadlines and a domestic enforcement agent.
Those domestic formalities are not trivial. In the Netherlands, article 430 of the Dutch code of civil procedure provides that an enforceable copy may be executed throughout the country but only after it has been served on the party against whom execution is directed, so service is a condition of the first step rather than a courtesy. Article 431 of the same code shows what the treaty regimes are actually worth, because outside the cases it preserves, decisions given by foreign courts cannot be enforced in the Netherlands at all and the dispute may simply be heard and decided afresh by the Dutch court. That is the default a creditor falls back to when no instrument applies.
Finding the assets
Enforcement presupposes knowing what the debtor owns and where. Locating assets across borders is itself a discipline, and the structures that make assets hard to find, layered holdings, nominee arrangements, movable wealth, are exactly the structures a creditor meets when a debtor has planned for difficulty. This is where enforcement meets asset tracing, and where the specialist practice of cross-border recovery earns its place, as we describe in our note on cross-border debt recovery.
European law offers one genuine investigative tool, and it is narrower than creditors expect. Article 14 of Regulation (EU) No 655/2014 establishing a European Account Preservation Order allows a creditor who has obtained an enforceable judgment, court settlement or authentic instrument, and who has reason to believe the debtor holds an account with a bank in a particular Member State but knows neither the bank nor the account number, to ask the court to have the information authority of that Member State identify the bank and the account. The same article opens the request to a creditor whose title is not yet enforceable only where the amount to be preserved is substantial and there is an urgent risk that enforcement would otherwise be jeopardised. It is an account-tracing mechanism tied to a specific Member State, not a general disclosure order, and it does not reach real property, shares or receivables.
Provisional measures matter early
A judgment enforced against assets that have already been moved is worthless. Provisional and protective measures, freezing assets before or during proceedings, are frequently the difference between a judgment that is collectable and one that is not, and within the Union these measures too can have cross-border effect. A creditor who waits until final judgment to think about the assets has usually waited too long.
The cross-border effect is real but conditional, and the conditions are where cases are lost. Article 35 of the Regulation allows an application for provisional and protective measures to the courts of any Member State whose law provides them, even if the courts of another Member State have jurisdiction over the substance. What such a measure is worth abroad depends on Article 2(a), which includes provisional measures within the definition of a judgment only where they were ordered by a court that has jurisdiction as to the substance, and excludes a measure ordered without the defendant being summoned to appear unless the judgment containing it is served on him before enforcement. Recital 33 states the corollary plainly: a protective measure ordered by a court without substantive jurisdiction is confined to that state’s own territory. Article 42(2) matches the paperwork to this, requiring the Article 53 certificate to describe the measure and to certify substantive jurisdiction, and to evidence service of the judgment where the measure was ordered without the defendant being summoned to appear.
Plan enforcement into the deal
The practical lesson is that enforcement is a structuring question, decided when the contract is written and when the counterparty is assessed, not a problem to solve after a dispute. Where the counterparty’s assets sit, which forum makes those assets reachable, and whether security should be taken at the outset are all questions for the beginning of a relationship. The credit-file discipline we set out in our note on cross-border financing for Spanish assets applies to counterparties as much as to borrowers.
The jurisdiction clause is the first place that discipline shows up, because the Regulation’s own rules decide whether a judgment will travel. Article 4(1) makes the defendant’s domicile the general forum, Article 25 allows the parties to confer jurisdiction on the courts of a Member State regardless of their own domicile, makes that jurisdiction exclusive unless they agree otherwise, and requires the agreement to be in writing or evidenced in writing, in a form matching practices the parties have established between themselves, or, in international trade or commerce, in a form according with a usage the parties knew or ought to have known and which is widely known to and regularly observed by parties in that trade. Article 24 then takes precedence over both, giving exclusive jurisdiction regardless of domicile to, among others, the courts where immovable property is situated for proceedings concerning rights in rem in that property, and Article 25(4) denies legal force to an agreement that purports to exclude them. Drafting against those three provisions is what keeps Article 45(1)(e) from becoming the debtor’s only real defence, and it costs nothing at signature.
Montclare coordinates the legal architecture behind cross-border structures, working with counsel in each relevant jurisdiction to one design. Our services are set out on our services page.
This article is informational and does not constitute legal advice. The law differs by jurisdiction and the treatment of any matter depends on its facts. Each engagement is subject to scope and applicable regulation.