The EU has decided on 24 April 2023 to establish treaty relations with Ukraine under the Hague Judgments Convention. Ukraine acceded to the Convention on 29 August 2022 by submitting its ratification to the depositary, the Dutch Ministry of Foreign Affairs. From that moment, the other Signatories have 12 months to object against the establishment of treaty relations with the new member (Article 29 of the Convention).
The EU Council decided not to do so. According to the Press Release, the Council considers that
there are no fundamental obstacles, such as related to the independence and efficiency of the judiciary, the fight against corruption or the respect of fundamental rights, which could prevent the EU from entering into treaty relations with Ukraine.
The Swedish Minister for Justice, Gunnar Strömmer, said on the occasion that “[w]ith this decision to recognise and enforce each other’s judgments the ties between the EU and Ukraine will only become stronger.”
The Judgments Convention will enter into force for all Signatories on 1 September 2023. Although the EU theoretically still has time until the 29 August 2022 to notify the depositary of its objections to establish relations with Ukraine under the Convention, this is unlikely after the decision by the Council. Courts in the EU will therefore soon be obliged under the Convention to recognise and enforce Ukrainian judgments in civil or commercial matters, and vice versa.
I’m not sure about other EU MS, but Greece has bilateral ties with Ukraine since more than 20 years. The treaty was signed in July 7, 2002, and entered into force in Greece in January 27, 2007. It covers judicial assistance in civil matters, including recognition and enforcement of judgments (Articles 20 et seq.).
The establishment of treaty relations between the EU and Ukraine under the Hague Judgments Convention means, as I see it, that Ukrainian judgments will now enjoy, in the EU, the benefits that result from that Convention (while, reciprocally, judgments emanating from a Member State of the Union will benefit form the same advantages in Ukraine). Indeed, judgments given in Ukraine were permitted to enter the European Judicial Area before, be it under the domestic law of the Member States concerned or under any applicable international conventions. By the way, the entry into force of the Hague Judgments Convention between the EU and Ukraine will not prevent, as such, the continuing operation of domestic rules and international conventions pursuant to Article 15 of the Convention, i.e., where they would facilitate recognition. That said, the development that Matthias reported about is significant. It is a move that the Union as a whole made, meaning that Ukrainian judgments will now travel throughout the whole of the Union in accordance with the Convention, and that judgments rendered in the EU will be recognised and enforced in Ukraine, under the Convention, regardless of the particular Member State in which they were given. Furthermore, it is an indication (or a confirmation) of the Union’s commitment to the Judgments Convention, that is, a sign that the Union takes the Convention seriously and intends to do what it can to make it work (generally speaking, a multilateral convention is more “appealing” to potential new contracting States once it has entered into force and is actually applied).
Thank you for your replies, Apostolos and Pietro. A quick research by my assistant Paul Eichmüller has shown that especially EU Member States from Eastern and Southern Europe have bilateral treaties on judicial cooperation with Ukraine (Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, Italy, Latvia, Lithuania, Poland, Romania). This seems not to be the case for Western European and Scandinavian countries. Germany and Austria for instance have not entered into such agreements with Ukraine. Undoubtedly, therefore, the entry into force of the Hague Judgments Convention will facilitate the circulation of Ukrainian judgments in the EU.
One may be happy about this because it will strengthen the bilateral relations. At the same time, it may be worrying that the EU increasingly instrumentalises judicial cooperation for political reasons. The decision of the EU to not allow the UK’s accession to the Lugano Convention seems particularly strange in this context. The UK features one of the best judicial systems in the world, with a high respect for the rule of law; still, the EU does not allow British judgments to be recognised and enforced like those of Lugano states.
As I have laid out in a contribution with Eva Lein (L’èspace de justice à la carte ? La coopération judiciaire en Europe à géométrie variable et à plusieurs vitesses, in : Marie-Elodie Angel and Louis d’Avout (eds.), Le droit à L’épreuve des siècles et des frontières – Mélanges en l’honneur du professeur Bertrand Ancel, Paris 2018, pp. 1093-1120), the decision over judicial cooperation should be motivated exclusively by considerations relating to the quality of the justice system. It should not be turned into an instrument of ordinary politics or a bargaining chip in bilateral negotiations. It would be welcome if the EU bodies would therefore less politicise the issue and rely more on expert analysis.
The bilateral agreement with Ukraine is from Polish perspective an absolute disaster according to modern standards. Not just in comparison to Polish and Ukrainian domestic PIL rules but also in the field of recognition. In most conferences on legal status of Ukrainians in Poland the main topic from Polish point of view is currently how to – be it in most possible creative way – justify that the scope of application of the bilateral convention is in particular case not opened. Part of that process is the case C-21/22, OP, pending at the CJEU.
Just a small example on recognition: a Ukrainian national comes to the civil registration office in Poland with the biological father of her child, who wishes to recognise the fatherhood of the child (or marry the mother) and she hears… that under the bilateral agreement with Ukraine she is still married to her former husband, whom she had not seen in 20 years and divorced prior to moving to Poland. At the time of the administrative divorce in Ukraine she had no idea she will one day settle down in Poland. It was a divorce between two Ukrainian nationals, living in Ukraine, with no connections to Poland whatsoever. All because administrative divorces under the bilateral agreement need to go through a recognition court procedure of constitutive nature. So according to Polish civil registration office the woman is still married – as long as such recognition in Poland is not carried out with the procedural participation of her former husband. Until than her former husband is the legal father of the child and she cannot re-marry. And that is just a peak of an iceberg.