The Brussels I Regulation (No 44/2001)
ON THE BRUSSELS I REGULATION
Our comment on the Brussels I Regulation takes, as a starting point, the explanation given in the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (/* COM/99/0348 final - CNS 99/0154 */ ) (OJ C 376 E, 28/12/1999 p. 0001 – 0017). This Proposal directly refers to the Regulation itself.
Given the great similarity between the 1968 Brussels Convention and its successor, the Brussels I Regulation, that Proposal only considers departures from the 1968 Brussels Convention. Many Articles of the 1968 Brussels Convention have been transferred unchanged to the Brussels I Regulation. For those Articles, the Proposal refers to the Explanatory Reports on that Convention, made by Jenard (1968), Schlosser (1979), Evrigenis-Kerameus (1986) and Almeida-Desantes (1990). In our comment on the Regulation we have made immediate links to the most important parts of these official reports.
Since the Lugano Convention of 1988 was largely based on the 1968 Brussels Convention, also the report of Jenard-Möller (1988) on the Lugano Convention may provide valuable information with regard to the scope and interpretation of the various provisions (Articles) of the current Brussels I Regulation. The same applies, even in a more profound way, to the comments made by Pocar (2007) in his Explanatory Report on the new Lugano Convention 2007, in view of the fact that this Convention is an exact copy of the Brussels I Regulation. As a result thereof, frequently a direct link to those reports has been made too.
Where appropriate, we have inserted the most important decisions of the
European Court of Justice in our comment, with direct links to the full
content of the Court's decision and, as far as possible, to the accompanying
opinion of the Advocate-General.
By Article 2 of the Treaty on European Union, the Member States set themselves the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country.
To establish such an area the Community has adopted, among others, the measures relating to judicial cooperation in civil matters needed for the sound operation of the internal market. Reinforcement of judicial cooperation in civil matters, which many believe has developed too slowly, represents a fundamental stage in the creation of a European judicial area which will bring tangible benefits for every Union citizen .
The sound operation of the internal market creates a need to create clear rules on jurisdiction and to improve and speed up the recognition and enforcement of judgments in civil and commercial matters. To this end, rapid enforcement procedures and legal certainty as regards jurisdiction are of the essence at a time when the increasing frequency of exchanges between persons and economic operators in different Member States leads to a growth in litigation (Proposal OJ 1999 C 376 E / 1-17).
On 27 September 1968, the six Member States of the European Economic Community concluded a Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (the Brussels Convention) on the basis of Article 293(4) (formerly 220(4)) of the EEC Treaty. A Protocol concerning the interpretation of the Convention by the Court of Justice of the European Communities was signed in 1971. The Convention and the Protocol, which are part of the Community acquis, have been extended successively to all the new Member States . The Brussels Convention was also taken as a model for the drafting of a similar Convention between the Member States and the States belonging to the European Free Trade Association (EFTA) - the Lugano Convention - signed on 16 September 1988 (Proposal OJ 1999 C 376 E / 1-17).
At its meeting on 4 and 5 December 1997 the Council instructed an ad hoc working party composed of representatives of all the Member States and the EFTA States Parties to the Lugano Convention, with observers from various sources, to undertake work on the parallel revision of the Brussels and Lugano Conventions. The Commission presented a proposal for a Convention to replace the Brussels Convention on the basis of Article K.3(2) of the Treaty on European Union (Proposal OJ 1999 C 376 E / 1-17)
Work continued on the basis of Article 293(4) (formerly 220) of the EC Treaty, the Commission being closely involved, until the Amsterdam Treaty entered into force on 1 May 1999. On 28 May, the Council gave its political agreement on the outcome of the work done by the ad hoc working party(Proposal OJ 1999 C 376 E / 1-17). This has resulted in the year 2000 a revised Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - the Brussels I Regulation 2000 - and in a revised Lugano Convention 2007, taking effect as of 1 January 2010, which is, with regard to its material scope and content, an exact copy of the Brussels I Regulation.
The purpose, when revising the old 1968 Brussels Convention, was to uniformise the rules of private international law in the Member States relating to jurisdiction and to improve the recognition and enforcement of judgments in civil and commercial matters. THe Brussels I Regulation has replaced and updated the Brussels Convention of 1968 and the Protocol to it, with a view inter alia to take account of new forms of commerce which did not exist in 1968. The new Regulation is based on the results of the Council ad hoc working party's revision negotiations preceding the entry into force of the Amsterdam Treaty. It thus incorporates the substance of the agreement reached in the Council on the balance needed between the interests of the different parties who might be involved in litigation. It is clear that the choice made for the purposes of achieving this balance may have consequences for those who engage in these new forms of commerce (see in particular the comments on Article 15 below) (Proposal OJ 1999 C 376 E / 1-17).
The effect of incorporating the revision in a Regulation, instead of
a Convention, is that the new rules have entered into force for all EU
Member States, with the exception of Denmark, which Which explicitly has
renounced any applicability. Nevertheless, Denmark has afterwards concluded
a separate Agreement with the European Union in which it accepts the application
of the Brussels I Regulation effectively as of 1 January 2007.
The subject-matters covered by the Regulation are now within the ambit of Article 65 of the Treaty; the legal basis for this proposal is Article 61(c) of that Treaty.
The form chosen for the instrument - a Regulation - is warranted by a number of considerations. The Member States cannot be left with the discretion not only to determine rules of jurisdiction, the purpose of which is to achieve certainty in the law for the benefit of individuals and economic operators, but also the procedures for the recognition and enforcement of judgments, which must be clear and uniform in all Member States.
Moreover, transparency is a vital objective in this context; it must be possible to come to an immediate uniform understanding of the rules applicable in the Community without the need to seek the provisions of national law that transpose the content of the Community instrument, bearing in mind that national law will very often be foreign to the plaintiff. And opting for a Regulation enables the Court of Justice to ensure that it is applied uniformly throughout the Member States.
The instrument is adopted by the procedure of Article 67 of the Treaty, which provides that, during a transitional period of five years, the Council is to act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament.
The new Title IV of the EC Treaty, which applies to the matters covered
by this proposal for a Directive, is not applicable in the United Kingdom
and Ireland, unless they "opt in" in the manner provided by
the Protocol annexed to the Treaties. At the Council meeting (Justice
and Home Affairs) held on 12 March 1999, these two Member States announced
their intention of being fully associated with Community activities in
relation to judicial cooperation in civil matters. It will be for them
to embark on the procedure of Article 3 of the Protocol in due course.
(Proposal OJ 1999 C 376 E / 1-17)
What are the objectives of the Brussels I Regulation in relation to the obligations imposed on the Community?
The objectives of the Brussels I Regulation proposal are to improve and expedite the free movement of judgments in civil and commercial matters within the internal market. This contributes to the establishment of an area of freedom, security and justice within which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country. To establish such an area the Community has adopted, among others, the measures relating to judicial cooperation in civil matters needed for the sound operation of the internal market. (Proposal OJ 1999 C 376 E / 1-17)
Does the measure satisfy the criteria of subsidiarity?
Its objectives cannot be attained by the Member States acting alone and must therefore, by reason of the cross-border impact, be attained at Community level.
Are the means deployed at Community level proportional to the objectives?
The Brussels I Regulation is confined to the minimum needed for the attainment
of these objectives and does not exceed what is necessary for that purpose
(Proposal OJ 1999 C 376 E / 1-17).
Like the Convention it is to replace, the Regulation, which takes over
its essential structure and most of its fundamental principles, aims to:
The Brussels I Regulation closely corresponds to the 1968 Brussels Convention and the results of the negotiations in the ad hoc working party for the revision of the Brussels and Lugano Conventions, which it takes over to a substantial extent (Proposal OJ 1999 C 376 E / 1-17).
The chief innovations following the work done by the working party are in the following areas:
1. Rules of jurisdiction:
- The concept of the domicile of natural persons is maintained, but there is now an autonomous definition of the seat of a legal person in place of a reference to the rules of private international law of the State in which jurisdiction is exercised. But there is still a reference to that law as regards the validity, nullity and dissolution of legal persons and decisions of their managing bodies;
- The alternative jurisdiction under Article 5(1) (contracts) has been reframed. The place of performance of the obligation underlying the claim will now be given an autonomous definition in two categories of situation: the sale of goods and the provision of services. This solution obviates the need for reference to the rules of private international law of the State whose courts are seised.
- The material scope of the provisions governing consumer contracts has been extended so as to offer consumers better protection, notably in the context of electronic commerce;
2. Procedure for recognition and enforcement:
- The procedure has been modified to improve the time taken for the declaration
of enforceability and therefore the enforcement of judgments for the creditor.
In particular, the first stage of the enforcement procedure in the Member
State requested becomes virtually automatic, as no grounds for non-recognition
or non-enforcement may be raised automatically. A uniform certificate,
containing certain basic information, will help to expedite and facilitate
the procedure. The protection afforded to the claimant is maintained:
he may now appeal against the decision.
Apart from the changes of substance described at 4.5 below, the obvious differences between the two types of instrument warrant departures from the Brussels Convention in a number of respects:
- the 1971 Protocol concerning the interpretation of the Convention by the Court of Justice of the European Communities is now superfluous in view of Articles 293 et seq. of the EC Treaty, which will apply here subject to Article 68. It should, however, be noted that where a case is brought in a national court before the Regulation enters into force, and the Brussels Convention accordingly applies, the Protocol will continue to apply to such case;
- Given the position of the United Kingdom, Ireland and Denmark, the specific provisions of Articles 3, 5(6), 17(3), 30(2), 31(2), 32, 37, 38(2), 40, 41, 44(2), 53(2), 54(2), 54a and 55 of the Brussels Convention are deleted;
- the formal provisions of Articles 60 to 68 of the Convention would be out of place in a Community instrument. Articles 249 and 254 of the Treaty are fully applicable to the entry into force of the Regulation. The Commission, acting under Article 211 of the Treaty, will fully assume the role of proposing amendments if need be;
- Article 59 of the Convention, which permitted the signing of bilateral agreements not to recognise judgments given against nationals of non-member countries on grounds of excess of jurisdiction would be out of place in a Community instrument. Such agreements by their very nature affect the Community rules of recognition and, after adoption of the Regulation, will be within the exclusive powers of the Community without the need for an express provision to that effect. Articles 28(1) and 59 of the Convention have accordingly been dropped in the Regulation. But agreements already entered into between Member States and non-member countries should be preserved;
- since the Regulation will be binding on some Member States but not others, provision should be made for rules implementing the rules on jurisdiction in the Regulation and in the Brussels Convention and on recognition and enforcement under the Regulation of judgments given on the basis of the Convention;
- the Protocol
annexed to the Convention is dropped. Certain articles are incorporated
in the Regulation itself, either because they apply to all the Member
States or because they reflect specific procedural rules of individual
Member States. But some derogations in the Protocol for certain Member
States have not been taken over (Articles I and Vb). If the relevant Member
States wish to preserve them, they must demonstrate the need for them
to be reinstated in the Regulation itself. (Proposal OJ 1999 C 376
E / 1-17)
Given the great similarity between the 1968 Brussels Convention and the Brussels I Regulation, only departures from the Convention are considered in the comment on the Proposal for the Brussels I Regulation.
Certain language versions of the Regulation contain minor corrections in relation to the Convention, designed to restore perfect concordance of all versions.
Many Articles of the Convention have been taken over unchanged. For those Articles, refer to the Explanatory Reports published on the occasion of successive accessions . (Proposal OJ 1999 C 376 E / 1-17)