In 2004, Malta became a member of the European Union and the Council of Europe. This created a new legislation which prevails over national law and includes a considerable body of regulations. The primacy of European law is enshrined in Article 825A of the Code of organization and civil procedure (‘COCP’). This article provides that European regulations take precedence over national law, which will only apply where it is not incompatible with European law or on matters not covered by European law.
Thus, it is provided in article 826 of the COCP, that judgments issued by foreign courts and constituting res judicata (i.e. judgments which are not subject to appeal in respect of the same subject matter and the same parties to the litigation) shall be recognised and/or enforced by the Maltese courts on request.
1. Recognition vs Enforcement of foreign judgments
The law does not provide us with definitions to distinguish recognition of a judgment from its enforcement. However, it is established that recognition allows Maltese courts to treat a foreign judgment as effective and legitimate in Malta. This implies, inter alia, that a person may rely on a foreign judgment either to prevent a decision which has already produced effects abroad from producing effects in Malta or to bring a new claim in Malta on the basis of the legal situation created abroad.
On the other hand, the enforcement of a judgment gives effect to the judgment. For example, the creditor can seize the debtor’s property situated in Malta when executing the judgment. For this purpose, the foreign judgment acquires the same legal status as a Maltese judgment. Thus, a recognised judgment can be enforced.
In this case, a distinction must be drawn between two situations:
- decisions issued by European courts;
- decisions issued by non-European courts.
There is a wealth of European legislation on the recognition of judgments, including the following regulations: the recast Brussels I Regulation [1215/2012] establishing the procedure for the enforcement and recognition of judgments given in an EU Member State; the Brussels I Regulation (44/2001) on judgments given in legal proceedings instituted before 10 January 2015; the EU’s European Enforcement Order for uncontested claims (805/2004), which allows the court of origin to certify a judgment as a European Enforcement Order for uncontested claims. The judgment is then enforceable throughout the EU. And the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
A judgment given in a Member State after 10 January 2015 is enforceable in Malta without any declaration of enforceability. In the case of a judgment given in a non-EU Member State, the Brussels I Regulation provides that the applicant is obliged to seek enforcement in the competent Maltese courts.
The following documents will be required for this process:
- an application for an enforcement order stating the circumstances of the case;
- a certified copy of the application translated into Maltese or English;
- proof that the judgment is res judicata.
These proceedings must be notified to the opposing party in order to respect the right to be heard and the rights of the defence.
2. Scope of application
A court decision is the position that a competent court will take with regard to the facts presented to it. In European law (see the Regulations and Conventions referred to, art. 826 Chapter 12 Laws of Malta), a judgment may be a decree, judgment, order, decision or title of enforcement and it may also relate to the determination of costs or expenses by a judicial officer. It may also be a provisional or conservatory measure ordered by a competent court.
In order for a foreign judgment to be enforced, a decision must have substantive and formal requirements. According to the letter of Article 826, a decision that can be recognised must have been given by a competent foreign court and it must be res judicata. A decision which has the force of res judicata is a final decision without appeal under the law of the country in which it was issued.
Once these conditions have been met, the enforcement procedure is in principle simplified for EU judgments. The interested party is not required to submit an application for enforcement to the First Hall Civil Court. However, the judgment in question must not fall within the scope of Article 811 of the COCP, must not be contrary to public policy, must not have been notified to parties not contumacious (Article 827 COCP).
3. Grounds for refusal of an application
European judgments are in principle automatically enforceable in the Maltese courts.
On the other hand, non-European judgments may be refused recognition and enforcement if they fall under the conditions listed in Articles 811 and 827 of the COCP.
To this end, the opposing party may assert the following grounds to challenge an application for recognition :
- if it has been obtained by fraud;
- if the claim was not notified to the opposing party who was unable to appear despite this omission;
- if one of the parties to the proceedings was unable to appear in court, provided that no plea has been raised and determined;
- in the event of a plea of lack of jurisdiction on the part of the court which handed down the judgment;
- if the judgment contains a misapplication of the law;
- if the court that issued the judgment ruled ultra petita;
- if the judgment was given on any matters not included;
- if the judgment conflicts with a previous judgment given in a case involving the same subject matter and between the same parties, and constituting res judicata, provided that no plea of res judicata has been raised and decided;
- where the judgment contains contradictory provisions;
- where the judgment was based on evidence which was declared false or which was declared but not known to the other party;
- where, after the judgment, a conclusive document has been obtained of which the party who produced it was not aware, or which with the means provided for by law he could not have produced, before the judgment;
- where the judgment was the effect of an error resulting from the procedure or the documents in the case;
In addition to these regulations, Malta has developed its legislation by becoming a party to numerous multilateral conventions which allow nationals of the countries covered by these conventions to apply for enforcement of a judgment according to specific procedures: this is notably the case with The British Judgments Act which promotes the principle of Reciprocal Enforcement (Chapter 52 of the Laws of Malta).
4. Special Regimes
Under the bilateral convention The British Judgement Act and Chapter 52 of the Laws of Malta, the procedure for the enforcement of judgments given in the UK is simplified. These decisions must first be registered in Malta, whose Maltese Court of Appeal will decide whether or not to enforce them. The principle is that of reciprocal enforcement. For this purpose, the decision in question must be final, for a specific amount, not related to fines or taxes, not obtained fraudulently or in breach of a court or arbitration agreement and issued by a competent court.
An application for registration must be submitted to Malta within 12 (twelve) months from the date of the judgment, but an extension is possible. The applicant will need to provide the following documents:
- authenticated copy of the relevant foreign judgment;
- a declaration that it constitutes res judicata;
- the application must specify the grounds for enforcement, the amount in respect of which the foreign judgment remains unsatisfied, and the amount of interest claimed.
However, it is still possible to challenge such an application on the following grounds:
- jurisdictional competence;
- the subject matter of the dispute is contrary to public policy, or cannot otherwise be allowed by the court of registration for a similar reason;
- the judgment debtor did not appear voluntarily or did not submit or agree to submit to the jurisdiction of the court of origin and, furthermore, did not have his habitual residence and was not carrying on business in that jurisdiction;
- the judgment debtor was not duly summoned before the court of origin and did not appear, even though he had his habitual residence or carried on business in that court or agreed to submit to the jurisdiction of that court;
- the judgment was obtained by fraud;
- the judgment is the subject of ongoing proceedings or appeals are still possible.
For further information and guidance on the subject matter we recommend seeking professional assistance.
SMM Litigation Department
For assistance with all litigation-related matters, get in touch with our legal department by filling in the contact form or call +356 2123 7167 for immediate assistance or send us an email at [email protected].