For businesses and funds pursuing cross-border enforcement, the choice between Brussels Ia (Regulation (EU) 1215/2012) and the Hague Convention of 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is not merely procedural – it determines speed, cost, and the realistic prospect of recovering assets. Brussels Ia remains the dominant instrument within the European Union, offering automatic recognition and enforcement of civil and commercial judgments without the requirement of exequatur in the receiving Member State. The Hague 2019 Convention, by contrast, operates on a global plane, filling enforcement gaps where Brussels Ia simply does not reach.
The Legal Architecture: Two Instruments, Two Logics
Brussels Ia was designed for a zone of mutual trust among EU Member States. Its core innovation – the abolition of exequatur for judgments falling within its scope – means that a judgment rendered in one Member State is treated as directly enforceable in another, subject only to limited grounds for refusal. The instrument covers civil and commercial matters broadly, but excludes insolvency, arbitration, family law, and certain other fields where separate EU instruments or national rules apply.
The Hague 2019 Convention takes a fundamentally different approach. Rather than mutual trust between closely integrated legal systems, it creates a multilateral framework based on indirect jurisdiction – the enforcing state examines whether the court of origin had jurisdiction on grounds enumerated in the Convention, and recognition may be refused only on specified, limited grounds. It does not abolish exequatur; it harmonises the conditions under which exequatur will be granted.
Understanding these two logics is essential for any creditor pursuing an unpaid invoice, a payment order, or a judgment on late payment interest across borders. Choosing the wrong instrument – or failing to structure litigation with both instruments in mind – can result in an otherwise valid judgment becoming practically unenforceable.
Scope: Where Each Instrument Applies
Brussels Ia governs enforcement of civil and commercial judgments between EU Member States. Once a judgment is obtained in, say, Germany, a Portuguese enforcement creditor can proceed directly in Portugal without any intermediate recognition procedure. The practical effect on debt collection timelines is significant: there is no separate exequatur stage consuming months or years.
The Hague 2019 Convention applies where the judgment originates in – or must be enforced in – a state that is neither an EU Member State for this purpose nor covered by another bilateral or regional arrangement. Critically, the Convention's relevance for EU-based creditors has grown as more states complete ratification. Its scope covers commercial judgments generally but excludes, among other matters, arbitral awards, insolvency proceedings, intellectual property, and certain family and succession matters.
One practical point frequently overlooked: where a defendant is domiciled outside the EU and holds enforceable assets in a non-EU jurisdiction that has ratified Hague 2019, structuring litigation so that the originating court falls within a Hague 2019-compliant jurisdiction may be the decisive strategic step. Similarly, for creditors dealing with debtors who are shifting assets across multiple jurisdictions, parallel proceedings – one within the Brussels Ia zone, another aimed at Hague 2019 states – may be necessary.
If you are considering enforcement action across multiple jurisdictions and are uncertain which instrument governs your situation, the team at Ferraz & Whitmore is available to advise. Please contact us at info@ferrazwhitmore.com or visit our contacts page.
Recognition Without Exequatur: The Brussels Ia Advantage
The abolition of exequatur under Brussels Ia is not merely a procedural convenience – it reflects a constitutional presumption of equivalence between Member States' judicial systems. A judgment creditor needs only an enforcement order from the court of origin, accompanied by a standard certificate, to initiate enforcement in another Member State. The receiving court does not re-examine the merits. Grounds for refusal are narrowly drawn: manifest incompatibility with public policy, breach of the defendant's right to be heard, or irreconcilable judgments.
For creditors pursuing asset freezing alongside judgment enforcement, Brussels Ia interacts with the European Account Preservation Order (EAPO) Regulation, which itself operates on similar cross-border principles within the EU. This combination – judgment enforcement plus provisional measures – gives EU-based creditors a powerful toolkit that has no equivalent in the Hague 2019 framework, which does not address provisional measures at all.
The practical value of Brussels Ia also depends on where the debtor's assets are located. If assets are in an EU Member State, Brussels Ia is almost always the faster and cheaper route. If, however, assets are predominantly outside the EU – for instance, held in jurisdictions that are signatories to Hague 2019 – then reliance on Brussels Ia alone will be insufficient, and a parallel or sequential enforcement strategy is required.
Hague 2019: A New Global Layer – Opportunities and Open Questions
The Hague 2019 Convention entered into force on 1 September 2023, initially among a limited number of contracting states. The EU, having signed on behalf of its Member States in respect of matters falling within EU competence, is a participant. However, the global footprint of Hague 2019 is still developing: the practical network of enforceable jurisdictions remains narrower than that of the New York Convention on arbitral awards.
Several open questions affect how practitioners should assess Hague 2019 in any given enforcement scenario:
- Indirect jurisdiction filters: The Convention requires the enforcing state to verify that the originating court exercised jurisdiction on one of the listed bases (e.g., the defendant's habitual residence or place of business, choice of court agreement, counterclaim). If the originating judgment was obtained on a jurisdictional basis not listed in the Convention, recognition may be refused.
- Overlap with choice-of-court agreements: Where parties have concluded an exclusive choice-of-court agreement covered by the Hague 2005 Convention on Choice of Court Agreements, that instrument may take precedence over Hague 2019 for the recognition and enforcement stage. Creditors should map which instrument governs at each procedural step.
- Interaction with Brussels Ia: The EU's accession to Hague 2019 does not displace Brussels Ia for intra-EU cases. Rather, Hague 2019 fills the outward-facing gap – enforcement of EU judgments in third states and recognition of third-state judgments in EU Member States – where no other instrument applies.
- Pending national implementation: Even where a state has ratified Hague 2019, the procedural mechanics of how an application for recognition is submitted, what documentation is required, and which courts have jurisdiction remain subject to national rules that are still being developed in many jurisdictions.
- Public policy reservation: Like Brussels Ia, Hague 2019 preserves a public policy exception, but the substantive content of that exception varies by state. Judgments involving punitive damages or certain regulatory penalties may face greater resistance in civil law jurisdictions.
For creditors holding an EU judgment and seeking enforcement in a Hague 2019 signatory state, the practical approach involves verifying: (i) whether that state has completed ratification and implementation, (ii) whether the originating court's jurisdiction satisfies one of the Convention's listed bases, (iii) whether any reservation or exclusion declared by that state affects the subject matter of the judgment, and (iv) what domestic procedural steps must be taken to file the recognition application.
Strategic Considerations for Cross-Border Debt Collection
For businesses pursuing unpaid invoices or payment orders with a cross-border dimension, the instrument choice should ideally be made before litigation commences, not after judgment is obtained. Several factors shape the analysis:
- Location of assets: Map the debtor's known assets at the outset. If principal assets are in EU Member States, Brussels Ia will govern enforcement and the process is relatively predictable. If assets are spread across EU and non-EU jurisdictions, a multi-track approach is likely necessary.
- Contractual clauses: Choice-of-court and choice-of-law clauses determine which court will hear the dispute and, downstream, which enforcement instrument applies. A clause designating a Hague 2005-compliant exclusive court in an EU Member State may support recognition under both Brussels Ia (for intra-EU enforcement) and Hague 2019 (for third-state enforcement).
- Timing of enforcement action: Under Brussels Ia, enforcement can proceed promptly after judgment. Under Hague 2019, the creditor must account for potential delays in recognition procedures in the enforcing state, particularly where national implementation is incomplete or untested.
- Interaction with insolvency: Where a debtor is subject to insolvency or restructuring proceedings in an EU Member State, enforcement actions may be stayed or redirected under the EU Insolvency Regulation. Creditors should assess the insolvency risk early and consider whether debt recovery should be pursued independently or through a proof of claim process.
- Sanctioned or restricted entities: Where the debtor is subject to EU or third-country sanctions, enforcement of a judgment – even a valid one – raises compliance issues that cut across both instruments. Specialist advice is essential before committing to an enforcement strategy in such cases.
For creditors with exposure in Austria specifically, our dedicated practice provides guidance on enforcement of foreign judgments within that jurisdiction: Debt recovery in Austria. Where enforcement intersects with insolvency proceedings, our bankruptcy and restructuring practice works alongside the enforcement team to coordinate strategy across both tracks.
Late Payment Interest, Ancillary Claims and Enforcement Scope
A judgment for principal debt is rarely the whole picture. Claims for late payment interest, costs, and ancillary amounts must also be enforceable in the receiving jurisdiction. Under Brussels Ia, the enforcement certificate issued by the originating court covers the judgment as given, including accrued interest and costs awarded. Whether post-judgment interest continues to accrue in the enforcing state, and at what rate, depends on the law of the enforcing state – a point often missed in cross-border debt collection strategies.
Under Hague 2019, the position is similar in principle: the Convention requires recognition of the judgment as rendered, including amounts for costs and interest specified in the judgment. However, where the rate of late payment interest embedded in the judgment reflects a rule specific to the originating state and differs significantly from the enforcing state's legal culture, there is a residual risk that enforcement of that element may encounter resistance under the public policy exception. This risk is generally low in commercial contexts but is worth flagging in transactions involving unusually high contractual penalty interest.
The Regulatory and Institutional Landscape
Brussels Ia is a directly applicable EU regulation, monitored and periodically reviewed by the European Commission. Interpretive questions of significance are resolved by the Court of Justice of the European Union (CJEU), whose case law on Brussels Ia and its predecessor instruments is extensive and continues to develop. Legal practitioners should monitor CJEU developments and guidance available through EUR-Lex to ensure that enforcement strategies reflect current judicial interpretation.
Hague 2019 is administered under the auspices of the Hague Conference on Private International Law. Unlike Brussels Ia, it generates no supranational court with authority to issue binding interpretations – divergences in how contracting states apply the Convention's provisions are inevitable in the early years. Practitioners operating under Hague 2019 must therefore engage carefully with the domestic case law and procedural rules of each enforcing state.
Financial regulatory considerations may also arise where enforcement intersects with regulated activities. Where asset freezing orders or enforcement actions affect assets under management or custody, the involvement of supervisory bodies such as the EBA or ESMA may be relevant in identifying which assets are available for enforcement and which are subject to regulatory constraints. This intersection of enforcement law and financial regulation is a specialist area that warrants early analysis.
For cross-border enforcement involving sanctioned entities or assets subject to restrictive measures, our analytical guide on enforcing a judgment against a sanctioned entity addresses the specific procedural and compliance considerations that apply.
Outlook: Convergence or Continued Fragmentation?
The longer-term trajectory points towards gradual expansion of the Hague 2019 network, with additional states expected to complete ratification in the coming years. As that network grows, the gap between the relatively seamless Brussels Ia regime and the more fragmented global landscape will narrow, at least for judgments originating in contracting states. However, full convergence remains distant: the mutual trust and institutional architecture underpinning Brussels Ia cannot be replicated by a treaty that does not abolish exequatur or create a supranational interpretive authority.
For EU-based businesses and funds, the practical implication is that Brussels Ia will remain the primary instrument for intra-EU enforcement for the foreseeable future, while Hague 2019 becomes an increasingly important secondary instrument for outward-facing enforcement strategies. Structuring commercial contracts, dispute resolution clauses, and litigation strategies to take full advantage of both instruments – and to avoid being caught by gaps between them – is a core element of cross-border legal risk management.
Developments in EU private international law, including any further legislative review of Brussels Ia, will also be relevant. The European Commission has signalled interest in the coherence of the EU's external enforcement framework, and practitioners should monitor legislative consultations and proposals as they emerge through EUR-Lex and official EU channels.
Ferraz & Whitmore advises international businesses, funds, and institutional creditors on cross-border enforcement strategy across EU and non-EU jurisdictions. If you are assessing which instrument best protects your enforcement position, or if a judgment you hold has not been satisfied, we welcome the opportunity to discuss your situation. Please write to info@ferrazwhitmore.com or use our contacts page to arrange a consultation.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.