Danish Supreme Court on Procedural Limits for Exequatur Decisions under the Lugano Convention
National procedural rules, the Court added, cannot be applied to issues for which the Convention itself provides a rule.
Background
A person who had defaulted on his Icelandic student loans was ordered by Icelandic courts to repay the amounts owed.
The Icelandic Student Loan Fund (Menntasjóður námsmanna) applied for enforcement of the ruling in Denmark under the Lugano Convention.
The Danish court of first instance granted enforcement, but the debtor appealed. The Court of Appeal dismissed the appeal on the ground that it had been lodged too late under Danish procedural law. The appellant challenged this finding, arguing that the applicable time limit was four weeks.
Judgment
The procedural issue was referred to the Danish Supreme Court, which first noted that the Lugano Convention takes precedence over Danish procedural rules.
The Court observed that the Convention itself contains a rule on the time limit for appealing an exequatur decision in Article 43. According to Article 43(5), an appeal must be lodged within one month. Consequently, there was no scope for supplementing the Convention with Danish procedural law.
Comment
The Danish judgment underscores the importance of interpreting international conventions and EU law consistently, ensuring that international rules prevail over conflicting national procedural norms. Challenges arise when national courts must “fill in the gaps” of an international instrument, as any supplementary rules must not undermine its purpose. In EU law, this principle is often referred to as the principle of effectiveness (“effet utile”).
The Swedish Supreme Court’s decision in NJA 2018 p. 957 illustrates the role of the principle of effectiveness in the context of a conflict between national procedural rules and EU jurisdiction rules. In applying the rule on tacit prorogation under Article 26 of the Brussels I bis Regulation (1215/2012), the Court rejected a direct application of Sweden’s procedural time limits, which would have extended the effect of tacit prorogation beyond the Regulation’s intended rationale. The Swedish Supreme Court’s approach mirrors that of the Danish case, emphasizing the need for caution when national procedures intersect with international and EU law.
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