A Plea for the Article 53 Certificate: A Reply to Gilles Cuniberti
This post was written by Marco Buzzoni, Doctoral Researcher at the Luxembourg Centre for European Law (LCEL).
By a post of 16 July 2025, Professor Gilles Cuniberti reported on this blog about a ruling of the Grenoble Court of Appeal that refused enforcement of a Luxembourg judgment because the certificate required by Article 53 of the Brussels I bis Regulation had neither been provided to the French enforcement authority nor served on the debtor prior to the first enforcement measure.
The post draws attention to an important and yet often overlooked feature of the Brussels I bis Regulation: the role of the Article 53 certificate in cross‑border enforcement proceedings. Echoing some of Professor Cuniberti’s earlier contributions (in English, see, eg, here and here), the post emphasises the ‘formal’ character of the certificate and urges a more liberal redrafting of Articles 42 and 43 of the Regulation.
While I share Professor Cuniberti’s concern for streamlining cross-border enforcement among Member States, I contend that the certificate fulfills an important function under the Regulation. As the Commission is currently considering a new recast, this post therefore advances reasons to reinforce, rather than undermine, its significance within the overall Brussels I bis system.
Leaving aside the specifics of the Grenoble case, Professor Cuniberti’s core arguments rightfully shed light on a major ambiguity concerning the value of Article 53 certificates.
According to the conventional interpretation, the Article 53 certificate is often perceived, as Professor Cuniberti argues, as a ‘purely formal requirement which serve[s] no purpose’ other than facilitating the tasks of enforcement authorities in the Member State of enforcement. This reading purportedly aligns with earlier case law issued by the Court of Justice under Regulation 44/2001 (ECJ, Case C-619/10, Trade Agency), and draws on distinctions between this Regulation and subsequent ‘second-generation’ instruments that abolished exequatur proceedings, such as Regulation 805/2004 (the ‘EEO Regulation’) and Regulation 1896/2006 (the ‘EOP Regulation’).
On further reflection, however, the abolition of exequatur in the 2012 Brussels I recast raises the question of how the responsibilities once handled at that intermediate stage should now be divided between the court of origin and the authorities of the Member State(s) of enforcement. These responsibilities may involve disputes about the enforceability of the judgment, as well as interpreting the scope of the obligations arising from it. To the extent that the Article 53 certificate contains some information on each of these points, one might wonder which role it should play in allocating tasks between the State of origin and the State(s) of enforcement.
Against this backdrop, Professor Cuniberti advances some theoretical and practical reasons to keep treating the Article 53 certificate as a ‘mere formality’. To do so, he relies in particular on the wording of Article 39 of the Brussels I bis Regulation, which provides: ‘A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required’.
Relying on this principle, Professor Cuniberti argues that enforcement should be carried out as expeditiously as possible. As a matter of policy, he thus advocates for suppressing the service requirement under Article 43 of the Regulation, and contends that the lack of the certificate should not necessarily impede the enforcement of the underlying judgment in the other Member States.
In my view, this approach may overlook a critical point: if the enforceability of the judgment in the Member State of origin is indeed a paramount requirement for cross-border enforcement, which authority is best suited to determine whether this prerequisite is met when a dispute arises between the parties?
From Professor Cuniberti’s standpoint, the answer is simple: disputes about the (un)enforceability of the judgment under Article 39 of the Brussels I bis Regulation can be adjudicated in the Member State of enforcement, even though the issues presented will almost always be governed by the domestic procedural law of the Member State of origin. Although that answer fits traditional conflict‑of‑laws logic, this outcome may seem at odds with the (admittedly implicit) allocation of tasks created by Articles 42, 43 and 53 and with the Regulation’s broader objectives.
In my opinion, these provisions should be interpreted as conferring on the court of origin the authority to rule conclusively on issues such as the judgment’s enforceability and the precise content of its operative part, using the certificate as the vehicle for doing so. Rather than downgrading the Article 53 certificate, the forthcoming recast of Brussels I bis should therefore consider strengthening it.
An Implied Allocation of Authority Favouring the Court of Origin
By requiring creditors to provide the enforcement authorities with the Article 53 certificate and to serve it on the debtor prior to the first enforcement measure, Articles 42 and 43 of the Brussels I bis Regulation effectively allow disputes concerning the enforceability of the judgment and other issues concerning the title to be pre-emptively settled by the authorities in the Member State of origin in accordance with their own law, rather than to be second-guessed by the authorities in the Member State(s) of enforcement based on the interpretation of foreign law.
When issuing the certificate under Article 53, the court of origin must indeed declare, inter alia, whether the judgment has already become enforceable ‘without any further conditions having to be met’, whether it can be enforced against all defendants or only some of them, and under which terms (see Annex I to the Regulation).
By expanding the role of the Article 53 certificate compared to its predecessor, the Brussels I bis Regulation has thus implicitly displaced traditional conflict-of-laws solutions in a manner consistent with the abolition of exequatur, which is inspired by the idea that challenges against the decision should, when possible, be adjudicated in the Member State of origin (see eg Articles 45(1)(b), (2), and (3) of the Brussels I bis Regulation).
In my view, the determinations made by the court of origin in the certificate should be binding on the authorities in the Member State(s) of enforcement, provided they do not fall within one of the grounds for refusal of recognition and enforcement set out in Article 45 of the Brussels I bis Regulation. This position is consistent with the Court of Justice’s holding in Trade Agency (cit above), and also comports with the Court’s statement that the Article 45 grounds are exhaustive (ECJ, Case C-139/10, Prism Investments).
In addition to fostering the principle of mutual trust, this solution also acknowledges the practical reality that the court of origin is better positioned to adjudicate questions requiring the application of its own procedural law. If Professor Cuniberti is correct in noting that, in most cases, a Luxembourg judgment looks ‘identical to a French judgment’, that might not always be true in all contexts (for how difficulties may arise even among similar legal systems, see, eg, Cass Civ 2, 2 Dec 2021, No 20-14.092). Furthermore, this approach also prevents fragmentation that might arise in case of conflicting rulings stemming from parallel enforcement attempts in several Member States.
In my view, the same rule of deference towards the certificate should also apply to disputes concerning the applicability of the Brussels I bis Regulation as a whole. Indeed, deciding whether a national measure constitutes a ‘judgment’ within the meaning of Article 2(a) of the Regulation (ECJ, Case C-568/20, H Limited), or whether the legal proceedings were ‘instituted’ on or after the relevant date set out in the Regulation (ECJ, Case C‑99/24, Chmieka) may at times require a technical assessment of the content of domestic procedural rules, which is best to be left to the court of origin acting under the supervision of the Court of Justice (see eg ECJ, Case C-579/17, Korana). Indeed, this approach seems to correspond to an emerging trend observed during the empirical research conducted in the course of the EFFORTS Project (see, in particular, M Buzzoni and C Santaló Goris, Report on Practices in Comparative and Cross-Border Perspective, 2022, pp 18-20).
Necessary Improvements to the Current Enforcement Framework
Even though I disagree with Professor Cuniberti’s conclusions, I nonetheless largely share his critiques about the current drafting of Arts 42, 43, and 53. Indeed, these provisions not only create considerable uncertainty about how the Regulation’s uniform rules interact with the law of the Member State of origin and that of the Member State of enforcement, but also leave major gaps in the procedure governing the issuance of Article 53 certificates.
To address these difficulties, the EU legislature should therefore consider several measures to streamline cross-border enforcement and to advance the path opened in 2012 by the abolition of exequatur:
Firstly, the contents of the certificate should be refined and updated to better reflect the diversity of judgments covered by the Regulation (see eg Bundesgerichtshof, 25.01.2018, IX ZB 89/16, BeckRS 2018, 1121).
Secondly, Article 53 of the Brussels I bis Regulation should clarify that the certificate must be issued by a judge (ideally, the one who issued the decision whose enforcement is sought).
Thirdly, the provision should also set out a lean procedure for issuing the certificate, explicitly allowing any interested party to request it during the merits proceedings or to apply ex parte after the judgment and setting a short time‑limit to issue the certificate.
Fourthly, the Regulation should create a uniform remedy in the State of origin for challenging wrongly issued certificates, keeping disputes from spilling into the requested State(s). The appeal should be subject to a strict time limit and distinguish between certificates issued ex parte versus those granted after adversarial proceedings.
Fifthly, creditors should likewise have a prompt remedy against refusals to issue the certificate or against certificates whose content is inaccurate.
Sixthly, retain the rule that the certificate must be served—under the service rules of the State of origin—on the person against whom enforcement is sought before the first enforcement measure. That service triggers the debtor’s right to challenge the certificate in the State of origin and to file a pre‑emptive Article 45 action for refusal of recognition.
Finally, the Regulation should clarify that contesting the certificate does not preclude enforcement abroad, although the measures set out in Article 44 of the Brussels I bis Regulation remain available.
The forthcoming recast gives the EU legislature a rare chance to explicitly codify the allocation of authority between the court of origin and the authorities of the Member State of enforcement. For the reasons set out above, I believe a swiftly issued, judicially reviewable Article 53 certificate — served on the debtor before the first enforcement measure — delivers upstream certainty and downstream efficiency. It lets the court of origin apply its own procedural law, spares enforcement authorities from second‑guessing foreign rules, and gives debtors a single point of challenge in case of parallel proceedings across Member States.
Far from encouraging procedural chicanery, strengthening the certificate is the logical next step toward the Regulation’s promise of mutual trust and the free circulation of judgments. Rather than downplaying its importance, the Commission should elevate the Article 53 certificate so that it serves as a trait d’union between Europe’s diverse judicial systems.
Many thanks, dear Marco, for a very interesting post.
I am not sure, however, that we disagree on a lot. I think it is useful to distinguish four issues.
1) Is the Art 53 certificate useful? Absolutely. It facilitates the work of enforcement officers, including by clarifying whether the judgment is enforceable in the MS of origin. I think we agree on this.
2) Is it necessary that the Brussels I bis Regulation requires service of the certificate on the defendant? You state that service is necessary to ensure that the debtor can challenge it in the MS of origin. Very well, but this is not an issue for the Brussels I bis regulation, and for EU law in general, but rather for national law. So the national law of origin should regulate this. In contrast, the current obligation to serve the certificate under art 43 Brussels I bis aims at informing the debtor that the judgment will be enforced in another MS. Is this a legitimate goal? I have argued before that the answer is no. Service for such purpose is an additional formality/cost for cross border enforcement, that the abolition of exequatur aimed at suppressing. There is no need to help the debtor, who was found liable, by an enforceable judgment, that this judgment will be enforced here or there. The EU is a single area of justice. All judgments are enforceable throughout the EU. There is no rationale for adding obstacle to cross border enforcement such as service of the art 53 certificate.
3) Then, if an enforcement officer does not need the certificate to carry out enforcement proceedings, and if nobody is challenging that the judgment was enforceable in the MS of origin, should the absence of the certificate be a ground for denying enforcement? I cannot see any rationale for this conclusion.
4) Last but not least, if an enforcement measure was carried out by the enforcement officer without any certificate, or service of the certificate (if necessary under art 43), should this enforcement measure be cancelled/lifted? The answer should be no: the CJEU has consistently ruled that the Brussels I bis Regulation does not govern enforcement per se, and this must mean that violation of the Regulation cannot impact the validity of an enforcement measure.
Dear Professor Cuniberti,
Thank you so much for your attention and your thoughtful comment. I have some remarks to share as a rejoinder. For convenience, I’ll only reference EU and French law. For comparative insights, I invite anyone interested to look at the research outputs produced during the EFFORTS Project (cit. above).
1. We agree.
2. a. On the remedies against the certificate:
De jure condito, you are absolutely right that the Regulation does not provide for a uniform challenge against the certificate. De jure condendo, however, I respectfully disagree that this issue should be left to national law. In my view, the questions are:
– Can the EU legislature intervene?
Of course, yes, because the certificate itself is a creature of EU law, much like the ex parte declaration of enforceability was under Brussels I bis’s predecessors. There is therefore ample precedent for regulating the certification proceedings and related challenges at the EU level (see already, by analogy, Arts 32 ff Brussels Conv., and especially Arts 35–36). The debate is thus not whether EU law can set up a uniform challenge procedure, but rather whether it should and to what extent (on this last point, cf. ECJ, Case C-433/18).
– Should the EU legislature intervene then?
In my opinion, yes. Our research showed that leaving the issue to the States has proven inefficient due to national regulators’ inertia and their lack of coordination (on this, see e.g. the French Cour de cassation’s reform proposals here: https://www.courdecassation.fr/files/files/Publications/Rapport%20annuel/rapport-annuel_2023.pdf, pp 28-29). As a result, the judicial protection of the parties’ rights with respect to the certification process differs greatly depending on the State of origin of the judgment, even though the certificate is supposedly a single EU instrument.
2. b. On the notification requirement:
Empirical data show that concerns related to the additional time/costs due to the certification procedure and service are largely overstated. For example, a creditor who obtained a French judgment can immediately obtain a certificate by applying ex parte to the court of origin and then serve it on the debtor just once, together with the underlying judgment, just prior to the first enforcement measure. Therefore, no double service is required. Problems arise not because of certification, but because of bad administrative practice by French court clerks who mistakenly conflate the notions of “jugement exécutoire” and “jugement ayant force exécutoire” under French law (for the distinction, see e.g. Cass. (ord), 30/06/2022, 21-18.406) and thus require service of the judgment before delivering the certificate. Therefore, I would keep the notification requirement under the Regulation. I do, however, agree with you that the reference to the “reasonable time” in Art. 43 should be eliminated.
Does this amount to reintroducing the very kind of intermediate steps that “the abolition of exequatur aimed at suppressing”? I submit that this is a false parallel. By suppressing exequatur, EU law abolished 27 local intermediate procedures that were as many prerequisites for the enforcement of titles and could lead to different results. By contrast, regulating certification sets up a single checkpoint that improves consistency by preempting local challenges and allowing the same title to be treated equally throughout the EU.
3. We are here under Art. 2 Brussels I bis.
I agree that failing to provide the certificate to the competent enforcement authority should not be an autonomous ground for challenging the enforcement procedure in the MS of enforcement. The provision should not be read to grant an individual right to the person against whom enforcement is sought. Therefore, procedural irregularities should not per se lead to the lifting of an enforcement measure, absent proof of actual harm suffered by the person against whom enforcement is sought (e.g. the enforcement authority calculated statutory interest in a manner incompatible with the information provided by the court of origin in the certificate). One obvious caveat on which I believe we agree: non-compliance with Art. 42 Brussels I bis may allow the enforcement authority not to proceed with enforcement.
4. We are here under Art. 43 Brussels I bis.
De jure condito: Art. 41 Brussels I bis provides: “Subject to the provisions of this Section, the procedure for the enforcement of judgments given in another Member State shall be governed by the law of the Member State addressed.” Hence, national law does not entirely govern enforcement procedures.
Now, service of the certificate is an explicit requirement under Art. 43 Brussels I bis. In a similar context, the ECJ has already held that: “if the sole issue were whether the document authorising enforcement came to the attention of the party against whom enforcement was sought, that could render the requirement of due service meaningless. Claimants would then be tempted to ignore the prescribed forms for due service” (Case C-3/05).
To me, the judgment and the certificate should thus be viewed as a ‘complex enforcement title’, and lack of service of the latter should hence lead to the enforcement measure to be cancelled/lifted because of lack of an enforceable title (see, by analogy, Civ. 2, 30/06/2022, 21-10.229).
De jure condendo: I acknowledge the internal coherence of your reform proposal, but for the reasons set out above I would maintain the service requirement and link it more explicitly to the question of the binding force of its contents (see post) and the remedies available against certification (see above, no. 2).
Thank you for this thoroughly researched and thought-provoking post. The discussion about the functional role of the Article 53 certificate within the Brussels I bis Regulation is especially timely as the EU prepares for another recast. I found the comparison between national procedural frameworks and their interaction with EU mechanisms particularly insightful.
In my view, the certificate’s role goes beyond being a mere formality—it acts as a bridge between procedural autonomy and mutual trust. Strengthening its content and clarifying its procedural path could indeed help minimize fragmentation and inconsistent enforcement outcomes across Member States. I also appreciate the suggestion of designing a uniform remedy mechanism for wrongly issued certificates, which seems both logical and necessary to ensure legal certainty in cross-border enforcement.