Unjustified Interruption of the Taking Evidence by the Court of Origin as a Ground to Refuse Cross-Border Enforcement Under the Brussels I Rules

Abstract

The contribution examines a recent decision by the Italian Corte di Cassazione rendered in matters of recognition and enforcement of foreign judgments issued in other European Union Member States. By analysing the reasoning of the Italian Corte di Cassazione in the application of the public policy test as a ground to refuse enforcement in Italy of a Polish ruling, the Corte di Cassazione’s methodological approaches are scrutinised against the background of the founding principles of mutual trust and free movement of decisions in the European judicial space. The conclusions of the Italian Corte di Cassazione are supported as it emerges from the commented decision that the public policy exception is applied in such a way to avoid an application that would go beyond its scope and purpose. More specifically, the circumstance a foreign decision has been adopted without an evidence being taken has not been considered to be in violation of a general substantive “right to evidence,” whilst it has been deemed that, in relevant fields of life, the lack of taking of an evidence already admitted to trial by the court of origin does constitute a breach of a (constitutionally protected) procedural fair trial in Italy.