The Brussels I Regulation (No 44/2001)



CHAPTER II  JURISDICTION


Section 1 General provisions

Underlying the Regulation is the idea that the Member States of the European Union wanted to set up a common market with characteristics similar to those of a vast internal market. Everything possible must therefore be done not only to eliminate any obstacles to the functioning of this market, but also to promote its development. From this point of view, the territory of the Member States may be regarded as forming a single entity: it follows, for the purpose of laying down rules on jurisdiction, that a very clear distinction can be drawn between litigants who are domiciled within the Community and those who are not.

Starting from this basic concept, Chapter II of the Regulation makes a fundamental distinction, particular in Section 1, between defendants who are domiciled in a Member State and those who are domiciled elsewhere. The Brussels I Regulation is in any event applicable if the defendant has his domicile in one of the Member States of the European Union.

  1. If a defendant is domiciled in a Member State, he must in general be sued in the courts of that State in accordance with the rules of jurisdiction in force in that State (Article 2 BR I).
  2. If a defendant is domiciled in a Member State, he may be sued in the courts of another Member State only if the courts of that State are competent by virtue of the Regulation (Article 3 BR I).
  3. If a defendant is not domiciled in a Member State, that is if he is domiciled outside the Community, the rules of jurisdiction in force in each Member State, including those regarded as exorbitant, are applicable (Article 4 BR I).

    The nationality of parties and the domicile (or habitual residence) of the plaintiff play no part, at least not for the application of Articles 2, 3 and 4 BR I. This rule can only be maintained because none of the EU Member States is bound by an International Convention which in general governs jurisdiction in civil and commercial matters in the same way as the Brussels I Regulation does. An exception has to be made for the Lugano Convention 2007. The relationship between the Brussels I Regulation and the Lugano Convention 2007 is, however, well defined. Where EU Member States are a Contracting Party to an International Convention which deals with jurisdiction for specific subject-matters on the field of civil or commercial law, like aviation, maritime law or freight and carriage, such International Conventions are not effected by the Brussels I Regulation (Article 71 BR I). This means that such International Conventions remain effective, even between nationals or residents of EU Member States mutually.

The instances in which a person domiciled in a Member State may be sued in the courts of another Member State or must be so sued, in cases of exclusive jurisdiction or prorogation of jurisdiction, are set out in Sections 2 to 7 of Chapter II of the Brussels I Regulation.

Section 8, named 'Examination as to jurisdiction and admissibility', is mainly concerned with safeguarding the rights of the defendant.

Section 9 concerns lis pendens and related actions. The very precise rules of this Section are intended to prevent as far as possible conflicting judgments being given in relation to the same dispute in different States.

Section 10 relates to provisional and protective measures and provides that application for these may be made to any competent court of a Contracting State, even if under the Regulation, that court does not have jurisdiction over the substance of the matter (Jenard Report 1976 C 57/13).

The Brussels I Regulation is only applicable as far as it concerns disputes with an international element. It then assigns the Member State of which the courts have jurisdiction. In principle it doesn’t point out which type of court within that Member State must (or may) take the case in consideration. Neither does it say in which town or territory of that Member State the case must be brought to court. This is decided by the national law regarding the internal jurisdiction within that State. The Regulation, however, does not necessarily leave the internal jurisdiction of the courts of the assigned Member State untouched: in many cases, the rules of jurisdiction set out in Chapter II of the Regulation have implications not only for the jurisdiction of a particular State, but also for the distribution of territorial jurisdiction among its courts, and may even confer jurisdiction on a specific court (Pocar Report OJ 2009 C 319/9).

See also:

 


Article 2 of the Brussels I Regulation

Index Article 2

 


Defendant's domicile as general ground for jurisdiction [Article 2 BR I]

Article 2(1) Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
(2) Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.


General principle for cross-border disputes

Article 2 of the Brussels I Regulation establishes the principle of the defendant's domicile as the general ground for jurisdiction (Proposal OJ 1999 C 376 E / 1-17). The place where the domicile of a natural person is located, has to be determined by the seised court on the basis of its own national law. If from the application of internal law shows that this natural person is not domiciled in that specific Member State, the seised court of that State has to examine whether this natural person is possibly domiciled in another Member State of the European Union. In doing so, it must apply the national laws of these EU Member State where the involved person may be domiciled (Article 59 BR I). If it appears from these investigation that the defendant is not domiciled in any EU Member State, then the Brussels I Regulation cannot confer any jurisdiction on the seised court, nor on any other court of a EU Member State, unless an exception is applicable, for instance in the case of exclusive jurisdiction as meant in Article 22 BR I or in the event of related proceedings. Where there is no exemption on the basis of which any jurisdiction by virtue of the Brussels I Regulation can be granted, the seised court has to establish on the basis of its national law, including its private international law, whether it is allowed to accept the legal claim and to give a judgment on it. This may, for instance, be the case if the defendant is domiciled in the Member State whose court has been seised by the plaintiff, while the plaintiff is domiciled in a third State, and both, that Member State and third State, are Contracting Parties to bilateral or multilateral International Convention on jurisdiction with regard to this subject-matter.

When the seised court of a EU Member State has to answer the question where a legal person is domiciled, it must apply its national rules on international private law related to this question, yet with due observance of the provisions laid down in Article 60 BR I. According to this Article a company or other legal person or association of natural or legal persons is domiciled at the place where it has its statutory seat, central administration, or principal place of business.

Again, it should be noted that the general rule of Article 2 BR I assigns, in the event of a case with an international element, jurisdiction to the State in whose territory the defendant is domiciled without prejudice to the determination of a specific court with jurisdiction within that State on the basis of the national law of that State. A defendant domiciled in a Member State need not necessarily be sued in the court for the place (town or region) where he is domiciled or has his seat. He may be sued in any court of the State where he is domiciled which has jurisdiction under the law of that State, depending on the internal rules for distribution of national jurisdiction of that State. As a result, if a defendant is sued in one of the courts of the State in which he is domiciled, the internal rules of jurisdiction of that State are fully applicable. Here the Regulation requires the application of the national law of the court seised of the matter. The Regulation determines whether the courts of the State in question have jurisdiction, and the law of that State in turn determines whether a particular court in that State has jurisdiction. This solution seems equitable since it is usual for a defendant domiciled in a State to be subject to the internal law of that State without it being necessary for the Regulation to provide special rules for his protection. It is, moreover, an extremely practical solution because it means that in most cases the court will not have to take the Regulation any further into consideration (Jenard Report OJ 1979 C 59/18). The Regulation, however, does not necessarily leave the internal jurisdiction of the courts of the assigned Member State untouched: in many cases, the rules of jurisdiction set out in Chapter II of the Regulation have implications not only for the jurisdiction of a particular State, but also for the national distribution of territorial jurisdiction among its courts, and may even confer jurisdiction on a specific court (Pocar Report OJ 2009 C 319/9). It then specifies that the involved person may, for instance, be sued in the court in whose judicial territory the contract was performed or in the courts for the place where the maintenance creditor is domiciled or habitually resident.

Many Articles of the Brussels I Regulation not only specify which Member State has jurisdiction, but also which court within that designated Member State has to be seised. An example is Article 5, point (1), under (a) BR I. In matters relating to a contract the defendant, who is domiciled in a specific Member State, may be sued also in the courts of another Member State if the place of performance of the obligation is located in that other Member State. But this Article then also specifies in which town within that other Member State a court must be seised. This is the court in whose judicial territory the obligation actually has been or ought to have been performed. If there is a dispute between, for instance, a British plaintiff and a Belgian defendant about a contract that had to be performed in the Amsterdam harbour, the Netherlands, the plaintiff has two possibilities. He may initiate legal proceedings before a Belgian court pursuant to the principal rule of Article 2 BR I (domicile of the defendant), in which case national Belgian law on territorial jurisdiction points out in which town a competent Belgian court must be seised by the plaintiff. The British plaintiff may as well initiate legal proceedings before a Dutch court pursuant to Article 5, point (1), under (a), BR I, but in that case the Brussels I Regulation points out in which town a competent Dutch court has to be sought. In this event this has to be the Amsterdam court, since the contract was performed in its judicial territory. The national rules on territorial jurisdiction of the Netherlands are then overruled by the Brussels I Regulation. National rules on subject-matter jurisdiction are, in principal, not affected by the Brussels I Regulation, unless a specific Article provides otherwise. So the Dutch Code of Civil Procedure still indicates which type of court has to be seised by the before mentioned British plaintiff. If the claim of the British plaintiff has a value of less than € 5,000, it must be lodged with the Amsterdam Subdistrict Court. If the claim has a value exceeding that amount, it must be filed at the District Court of Amsterdam (see also national rules for territorial and subject-matter jurisdiction within the Netherlands.



'Maxim actor sequitur forum rei' [Article 2(1) BR I]

The 'maxim actor sequitur forum rei', which expresses the fact that law leans in favour of the defendant, is even more relevant in the international sphere than it is in national law. It is more difficult, generally speaking, to defend oneself in the courts of a foreign country than in those of another town in the country where one is domiciled (Jenard Report OJ 1979 C 59/18). In common with the internal law of many States, the Brussels I Regulation bases in Article 2, paragraph 1, BR I for this reason, international jurisdiction, where it has to be devided between several Member States, on the domicile of the defendant, in the sense that the courts of the Member State where that domicile is located, have jurisdiction.

The Regulation does not itself define domicile. Instead, where it concerns the domicile of natural persons, reference is made to the internal law of the State in the territory of which domicile is being investigated for the case in point (Articles 59 BR I) [see here for national Dutch rules to determine the domicile]. However, the mere place of residence of the defendant was rejected as a basis of jurisdiction (see Jenard Report OJ 1979 C 59/15-16). Additional criteria are provided to determine the domicle of legal persons (Article 60, first paragraph). A company or other legal person or association of natural or legal persons is domiciled at the place where it has its (a) statutory seat, (b) central administration or (c) principal place of business.

The fundamental provision in the first paragraph of Article 2 expressly dissociates jurisdiction from nationality and, secondly, requires proceedings against persons domiciled in the territory of a Member State to be brought before the courts of that State except where the Regulation itself provides otherwise (specifically in Articles 5 to 24 BR I). If no other provision of the Regulation is governing the question of jurisdiction over a dispute with an international element, jurisdiction is to be determined on the basis of the place of the defendant's domicile in accordance with Article 2 of the Regulation. This is for instance the case where the employee’s obligation to carry out the agreed work is performed and had to be performed outside the territory of a Member State (ECJ 15 February 1989 ‘Six Constructions v Humbert’, 32/88) or where the place of performance of the obligation in question cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit and is therefore characterised by a multiplicity of places for its performance (ECJ 19 February 2002 ‘Besix v WABAG’, C-256/00). In such situations the special jurisdictional rules in matters relating to individual employment agreements (Article 18) respectively contracts (Article 5) are not applicable, so that the question has to be answered in view of the general criterion laid down in the first paragraph of Article 2 of the Brussels I Regulation. Consequently, the domicile of a defendant in a Member State, irrespective of whether he is a national of such a State, also serves as the criterion for defining the application of the Regulation externally.

Except in situations of exclusive jurisdiction (Section 6, Chapter II BR I) or prorogation of jurisdiction (Section 7, Chapter II BR I), the plaintiff always has the option under Article 2 of the Regulation to bring his (entire) claim before the courts of the place where the defendant is domiciled. This may be desirable when the same court does not have jurisdiction to hear the whole of an action founded on two obligations of equal rank arising from the same contract against the same defendant, because, according to the conflict rules of the State where that court is situated, one of those obligations is to be performed in that State and the other in another Member State. To prevent that there will be two different courts ruling on different aspects of the same dispute, the plaintiff may ignore the possibilities provided to him by Article 5, point (1), of the Regulation and start one case before the court of the Member State where the defendant is domiciled (ECJ 5 October 1999 ‘Leathertex v Bodetex’, ECR 1999 Page I-06747).

The application of the Brussels I Regulation is not limited to situations where both, the plaintiff and defendant, are domiciled in a Member State of the European Union (so called ‘intra-Community’ disputes). It also applies to disputes which are ‘integrated into the Community'. A defendant domiciled in a Member State may rely on the specific rules on jurisdiction set out in that Regulation against a plaintiff domiciled in a non-Member State, like Canada. The European Court of Justice has ruled that the seised national court of a Member State essentially has to ascertain if the rules of jurisdiction laid down by the Regulation apply where the defendant has his domicile or seat in a Member State, even if the plaintiff is domiciled in a non-member country. The basic rule in Article 2 BR I and the special rules in, inter alia, Article 5 and Article 6 BR I, invariably refer to where a person, domiciled in a Member State, may be sued. Neither in those provisions nor in any of the special provisions such as Article 15 (consumer contracts) or Article 22 (exclusive jurisdiction) is any reference made to the domicile of the plaintiff. This is only different in exceptional cases where an Article of the Regulation explicitly provides that the application of the rule of jurisdiction, which it sets out, is dependent on the plaintiff's domicile being in Member State. Such is the case where the plaintiff exercises the option open to him under Article 5, point (2), Article 9, paragraph 1, point (2), and Article 16 of the Brussels I Regulation, and also in matters relating to prorogation of jurisdiction under Article 23 of the Regulation, solely where the defendant's domicile is not situated in a Member State (ECJ 13 July 2000 'Group Josi v UGIC', C-412/98). The national courts of non-Member States, of course, do not have to follow the basic rules of the Brussels I Regulation. They will determine jurisdiction on the basis of the private international law of that non-Member State. The Brussels I Regulation doesn't belong to the private international law of that State.

The rule, indicating that the domicile of the plaintiff is in principal not of importance to establish whether the seised court of a EU Member State has jurisdiction, even if the plaintiff is domiciled outside the European Union, can be upheld only for the reason that the EU Member States are not bound by any other (multilateral) International Convention which in general covers jurisdiction in civil and commercial matters. So it is not possible that the seised court of a EU Member State also has to apply such a Convention in order to determine, in view of the fact that the plaintiff is domiciled outside the European Union, whether that Convention or the Brussels I Regulation is decisive (whereas a conflict between the Brussels I Regulation and the Lugano Convention 2007 is out of the question). Only the rules of the Brussels I Regulation are significant, on the understanding that the defendant has to be domiciled in a EU Member State or, if the defendant is not, that an additional rule of the Brussels I Regulation grants jurisdiction. There are, however, many bilateral and multilateral Conventions, to which also EU Member States are a Contracting Party, which deal with matters of jurisdiction for specific subject-matters. The Brussels I Regulation expresses explicitly that such Conventions remain applicable and are not affected by the Brussels I Regulation, even when the dispute only involves residents of two or more EU Member States (Article 71 BR I). [See also formal scope of the Brussels I Regulation]

In another case the European Court of Justice had to answer the question whether Article 2 of the Brussels I Regulation is applicable in circumstances where the plaintiff (claimant) and one of the defendants are domiciled in the same Member State (United Kingdom), while the case between them, before the courts of that State (United Kingdom), has certain connecting factors with a non-Member State (Jamaica), but not with another Member State. The Court indicated that, for the jurisdiction rules of the Brussels Regulation to apply at all, the existence of an international element is required. But for the application of the Regulation the international element doesn't necessarily require the involvement of at least two Member States, in the sense that the plaintiff (claimant) and defendant must be domiciled in two different Member States or, when they both live in the same Member State, in the sense that the subject-matter of the proceedings (the case) must be connected with another Member State (for example that the obligation was performed or the accident occurred in another Member State than the Member State where plaintiff and defendant both live). The involvement of a Member State and a non-Member State, for example because the plaintiff (claimant) and one of the defendants are domiciled in the first State (the same Member State, like the United Kingdom) and the events at issue occurred in the second State (the non-Member State, like Jamaica), would, for the purpose of the application of the Brussels I Regulation, also make the legal relationship at issue international in nature (ECJ 1 March 2005 ‘Owusu v Jackson c.s.’, C-281/02).

See also:


'Equality of treatment' [Article 2(2) BR I]

Given that the first paragraph of Article 2 excludes nationality as a factor in determining jurisdiction, the second paragraph provides for the positive assimilation of foreigners to nationals of the State concerned by making the former subject to the rules of jurisdiction applicable to the latter (Evrigenis Report 1986, C 298/11). So persons who do not have the citizenship (nationality) of the State in which they are domiciled are subject to the same jurisdiction as citizens of that State having its nationality. In doing so, the second paragraph of Article 2 embodies the principle of 'equality of treatment': where a foreigner is domiciled in the State of the forum, such a foreigner, whether he is defendant or plaintiff, is governed in that State by the same rules of jurisdiction, including the Brussels I Regulation, as its own nationals, or more precisely, as its nationals who are domiciled in that State. The positive aspect of equality of treatment is set out in the second paragraph of Article 4 BR I.

See also:

 


Article 3 of the Brussels I Regulation

Index Article 3

 


Rules for special jurisdiction and for the exclusion of exorbitant jurisdiction [Article 3(1)(2) BR I]

Article 3(1) Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.
(2) In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them.


Rules for special jurisdiction [Article 3(1)]

Article 3 BR I provides in paragraph 1 for rules for special jurisdiction and deals in paragraph 2 at the same time with rules of exorbitant jurisdiction in force in each of the Member States. These paragraphs have to be applied simultaneously to understand their meaning.

First of all, Article 3, paragraph 1, BR I refers to other Articles of the Brussels I Regulation on the basis of which either an alternative jurisdiction may be founded, therefore a jurisdiction in addition to that based on the principle rule of Article 2 BR I, or on the basis of which an exclusive jurisdiction of a specific (court of one single) Member State must be established, pushing aside jurisdiction which normally would result from the principle rule of Article 2 BR I.

Article 3, paragraph 1, BR I reflects to those cases in which a defendant domiciled in a Member State may be sued in another Member State, although he is not living or seated there, which would be necessary in order to base jurisdiction on the principle rule of Article 2 BR I. A person domiciled in a Member State may be sued only before the courts of another Member State in situations expressly provided for in the Brussels I Regulation itself. Any national rule indicating differently is set aside by this general principle, whereas paragraph 2 of Article 3 BR I expresses for greater security that neither national rules of exorbitant jurisdiction are able to get around this standard. Article 3, paragraph 1, BR I indicates for this purpose that only to the extent permitted under the special jurisdictions stipulated in Articles 5 to 24 (Sections 2-7) of the Regulation, these national rules keep having any influence with regard to situations covered by the Regulation, which itself has as leading principle that a defendant can be sued only before the court of the State where he is domiciled. As far as a national rule is in conflict with what the Regulation still allows, it has no meaning, not even when a national rule of exhorbitant jurisdiction is pushed forward to justify jurisdiction. This, however, only applies to situations falling within the scope of the Regulation. Therefore, Article 3 BR I doesn't totally exclude rules of exorbitant jurisdiction; they are excluded only in respect of persons who are domiciled in another Member State. Thus they remain in force with respect to persons who are not domiciled within the European Community.

It should be observed that, though Article 3, paragraph 1, BR I refers in general terms to the ‘courts’ of another Member State bound by the Brussels I Regulation, this reference does not necessarily leave the internal jurisdiction of the courts of that Member State untouched: in many cases, the rules of jurisdiction set out in Title II of the Brussels I Regulation have implications not only for the jurisdiction of a particular Member State, but also for the distribution of territorial jurisdiction among its courts, and may even confer jurisdiction on a specific court (Pocar Report C 319/9). This is, for example, the case where a provision explicitly refers to the court of the place where the contract was performed or where the plaintiff claiming maintenance has his domicile or habitual residence. In such event the legal claim has to be filed, according to that provision, at that specific court within the Member State whose courts have jurisdiction according to the Brussels I Regulation.

 


Examples of excluded national rules of exorbitant jurisdiction in Annex 1 [Article 3(2)]

The second paragraph of Article 3 prohibits the application of the most important and best known rules of exorbitant jurisdiction, mentioned as such in Annex 1.

'Exorbitant jurisdiction' can be described as jurisdiction validly exercised under the jurisdictional rules of a State that nevertheless appears unreasonable to non-nationals because of the grounds used to justify jurisdiction. In other words jurisdiction is exorbitant when the court seized does not possess a sufficient connection with the parties to the case, the circumstances of the case, the cause or subject of the action, or fails to take account of the principle of the proper administration of justice, but nevertheless finds itself competent to give a binding judgment. Such jurisdiction exists because there appears to be a common core in the nations' urge to disregard defendants' interests in order to give their own people a way to sue at home, when the forum country will be able to enforce the resulting judgment locally. The most common examples of exorbitant jurisdiction are jurisdiction based on nationality, jurisdiction based upon assets and jurisdiction based upon ‘doing business’.

Article 14 of the French Civil Code makes it, for example, possible that a person with French nationality, but living in Canada, sues a Mexican before a French court with regard to injuries resulting from an accident in Tokyo. Any foreigner, thus, may be sued before a French court, irrespective of the basis of the lawsuit. The fact that the plaintiff is of French nationality is sufficient.

Article 15 of the French Civil Code provides that a French citizen may always be sued in the French courts by a French citizen or by a foreigner, and can even insist on this. As a result the French court may rule it has exclusive jurisdiction over the matter. So when a foreign plaintiff has started proceedings in another State, for instance Japan, which has lead to a judgement against a French citizen, he may be confronted with a French court that refuses to recognize and enforce that decision in France, because the French court sees itself as the only court allowed to give a judgment on the matter.

Article 23 of the Code of Civil Procedure of Germany lays down that, where the defendant is not domiciled in Germany, so that no other German court has jurisdiction, actions relating to property instituted against a person who is not domiciled in the national territory come under the jurisdiction of the court of the place where the property or subject of the dispute is situated. Due to this, German courts have jurisdiction over any defendant who owns assets in Germany, regardless of their value. A Chinese who has forgotten his camera in his hotel in Berlin, may be sued before a German court for an enormous amount with regard to a case that has no connection with that camera at all.

Some countries, like the United States, regard their courts competent to accept a lawsuit against a person who does business in that country, and even accept causes of action that do not arise from this business. In the case Bryant v. Finnish National Airlines a resident of New York sued the defendant for injuries incurred at a Paris airport through the alleged negligence of the defendant. The Court of Appeal held that it had jurisdiction because the Finnish National Airlines maintained a one and a half-room office in New York City, where some publicity work was done. No flight operations were conducted within the U.S., no stockholders, officers or directors were residents of New York, the plaintiff's cause of action was totally unrelated to the defendant's activities in New York (Olivia Struyven, Exorbitant jurisdiction in the Brussels Convention, jura falconis, jg 35, 1998-1999, nr 4, p. 521-548).

Paragraph 2 makes clear, in connection with paragraph 1 of Article 3 BR I, that the seised courts of Member States are not allowed to apply their own national rules of jurisdiction as long as the legal claim falls within the material scope of the Brussels I Regulation, and it states moreover that this applies as well to national rules of exorbitant jurisdiction. It refers for this purpose to Annex I, containing a list of national rules of exorbitant jurisdiction as applied in several Member States.

Annex I gives a specific, but only indicative, list of bases of jurisdiction provided for under national procedural rules, but considered under the Brussels I Regulation to be exorbitant (règles de compétence exorbitantes). These include rules which base jurisdiction on the fact that either the plaintiff or the defendant is a national of the State in question (Belgium, France, Luxembourg, Netherlands), on the service of a writ of summons on national territory on a defendant who is temporarily present there (Ireland, United Kingdom), on the seizure of property situated on national territory (United Kingdom), on the presence on national territory of property belonging to the defendant (Denmark, Germany, Greece, United Kingdom) or on other forms of unfavourable treatment of foreign nationals (Italy). Consequently, Greek courts will be unable to base their jurisdiction on the special jurisdiction in respect of property under Article 40 of the Code of Civil Procedure, if the defendant is domiciled in any Member State. The existence, in a State, of property belonging to the defendant, and even the presence there of the object in litigation, are not regarded by the Regulation as constituting a sufficient connecting factor to provide a basis of jurisdiction (Evrigenis Report 1986 C 298/12).

In this context, Article 3, paragraph 2, BR I together with Annex I, to which it refers and in which national rules that cannot be invoked are listed, is intended merely as a description and guide for operators indicating the main national rules whose application is not permitted. Paragraph 1 of Article 3 BR I provides that proceedings cannot be brought in courts other than those referred to in Sections 2 to 7 of Chapter II, and it follows that any other criterion of jurisdiction is excluded, whether or not the rule that provides for it is listed in Annex I. The list in Annex I is exemplary only, and does not restrict the effect of paragraph 1, according to which all national rules that do not comply with the rules of the Brussels I Regulation must be considered inapplicable (Pocar Report OJ 2009 C 319/9).

But at the same time, of course, the list of Annex 1 mentiones as well national grounds of jurisdiction that may be used in the Member States against defendants not domiciled in a Member State. The Annex may be amended if need be and will be published in the Official Journal. The list has been amended very slightly to reflect a subsequent change in Italian national legislation (Proposal OJ 1999 C 376 E / 1-17).

See also:

 

 

 


Position of defendants domiciled in a Non-Member State ('scope rationae personae') [Article 4 BR I]

Article 4(1) If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State.
(2) As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.

The rule determining the scope rationae personae distinguishes between two situations: cases where the defendant is domiciled in a non-member country and cases where the defendant is domiciled in a Member State not bound by the Regulation.

Where the defendant is domiciled in a non-member country, rules of national jurisdiction of the forum will apply to determine whether the seised court has jurisdiction. But this rule does not operate where a court in a Member State has exclusive jurisdiction (Article 22 BR I). Nor will it operate where the defendant, although domiciled in a non-member country, has signed a contract containing a clause conferring jurisdiction on a court in a Member State. By Article 23 BR I, it is enough that one of the parties to the case (not necessarily the claimant) be domiciled in a Member State. [See also formal scope of the Brussels I Regulation].

It is important to notice that, where the defendant is not domciled in any Member State, the opposite party (plaintiff), provided that he indeed is domiciled in one of the Member States, may invoke against that defendant any national rule of jurisdiction of the forum State, including those that are regarded as exorbitant and therefore not allowed in disputes against a defendant domiciled within the European Union. This is specified explicitly in paragaph 2 of Article 4 BR I.

Where a defendant domiciled outside the European Union, gets involved, in the courts of a Member State, in a dispute relating to an insurance, consumer or employment agreement, because that dispute has arisen out of operations of an agency or establishment of this defendant, he is nevertheless protected against the use of exorbitant jurisdiction rules of the forum State against him. In such event he is equated with a person domiciled in a EU Member State, so that Article 4, paragraph 1, does not apply to him, with the result that neither paragraph 2 of that Article has relevance anymore (see Article 9, paragraph 2, Article 15, paragraph 2, and Article 18, paragraph 2 BR I).

Where the defendant is domiciled in a Member State not bound by the Regulation, the 1968 Brussels Convention rules on jurisdiction will, of course, be applicable (Proposal OJ 1999 C 376 E / 1-17). This especially was the case with regard to Denmark in relation to the other EU Member States. Meanwhile, however, Denmark has submitted itself by separate Agreement to the Brussels I Regulation too.

See also: