ALMEIDA-DESANTES REPORT 1990

REPORT ON THE 1968 BRUSSELS CONVENTION

On the accession of the Kingdom of Spain and the Portuguese Republic to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its Interpretation by the Court of Justice with the adjustments made to them by the Convention on the accession of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland and the adjustments made to them by the Convention on the accession of the Hellenic Republic

(90/C 189/06)

(Signed at Donostia/San Sebastián on 26 May 1986)

Mr Martinho de ALMEIDA CRUZ
Judge at First Instance, Legal Counsellor at the Permanent Representation of Portugal to the European Communities
Mr Manuel DESANTES REAL
Professo,. Law Faculty, University of Alicante
and
Mr Paul JENARD
Honorary Director of Administration at the Belgian Ministry of Foreign Affairs
In addition to the draft Convention and the other instruments drawn up by the government experts, the draft explanatory report was submitted to the Governments of the Member States of the European Communities prior to the Conference of representatives of the Governments of the Member States held in San Sebastián on 26 May 1989.

This report takes account of the comments made by certain Governments. It takes the form of an authorized commentary on the Convention of 26 May 1989.

end of page Official Journal of the European Communities No. C. 189/35

(......)

CHAPTER I  GENERAL CONSIDERATIONS

1. Introductory remarks

1. By Article 220 of the Treaty establishing the European Economic Community, the Member States agreed to enter into negotiations with each other, so far as necessary, 'with a view to securing for the benefit of their nationals the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards'.

From this provision has developed, in this specific field, a genuine European legal area which, as will be seen, is destined to extend well beyond the relations between the Member States of the European Communities.

2. Three Conventions have been concluded under Article 220 of the Treaty of Rome prior to the Convention on the accession of Spain and Portugal:

1 . the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, supplemented by the Protocol of 3 June 1971 on its interpretation by the Court of Justice;

2. the Luxembourg Convention of 9 October 1978 on the accession of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention and to the 1971 Protocol;

3. the Luxembourg Convention of 25 October 1982 on the accession of Greece to the Brussels Convention as adjusted by the 1978 Convention and the 1971 Protocol.

In addition, negotiations with the Member States of the European Free Trade Association resulted in the Lugano Convention of 16 September 1988, based very largely on the 1968 Brussels Convention as adjusted by the Accession Conventions of 1978 and 1982.

Before entering on a detailed commentary on the Convention on the accession of Spain and Portugal, a brief description of the previous Conventions is helpful.

2. Previous Conventions concluded under Article 220 of the Treaty of Rome

1. Brussels Convention of 27 September 1968.

3. This Convention on jurisdiction and the enforcement of judgments in civil and commercial matters was concluded between the six original Member States of the European Communities, the Six being Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands [1]. The Convention entered into force between the six Member States concerned on I February 1973.

The Brussels Convention is supplemented by a Protocol signed in Luxembourg on 3 June 1971 conferring on the Court of Justice of the European Communities jurisdiction to interpret the Convention [2]. This Protocol entered into force on I September 1975.

4. The Brussels Convention is based on a number of fundamental principles [3]:
- it lays down rules of direct jurisdiction, i.e. applying from the beginning of proceedings,
- the defendant's domicile, and not his nationality, is considered to be the basic rule for determining the jurisdiction of the courts,
- no derogation from this rule is allowed, unless expressly provided for in the Convention,
- the defendant's rights must have been respected in the State of origin,
- the grounds for refusing recognition and enforcement are limited in the interests of ensuring the greatest possible freedom of movement of judgments in the Community,
- the exequatur procedure is unified and simplified,
- any State which becomes a member of the European Economic Community is required to accept the Convention as a basis for the negotiations necessary to ensure the implementation of Article 220 of the Treaty of Rome;

[(1) The Convention was published in OJ No L 299, 31. 12. 1972. It was published by an explanatory report drawn up by Mr P. Jenard, published in OJ No C 59, 5.3. 1979, hereinafter referred to as the Jenard Report.]
[(2) The Protocol was published in OJ No L 204, 2.8. 1975. For its scope, see Jenard Report, pp. 66 to 70.]
[(3) For a fuller account of these principles, see Jenard-Möller Report, paragraph 13. Details of that report are given in footnote 5 on page 39.]

end of page Official Journal of the European Communities No. C. 189/38

.... however the necessary adjustments may be the subject of special conventions (Article 63).

2. Luxembourg Convention of 9 October 1978

5. After Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland joined the European Communities (Europe of Nine), .a new Convention was concluded on the accession of those three States to the 1968 Convention and to the 1971 Protocol [1].

[(1) This Convention, signed in Luxembourg on 9 October 1978, was published in OJ No L 304,30.10. 1978. It was the subject of a report drawn up by Prof. P. Schlosser, published in OJ No C 59, 5.3. 1979, hereinafter referred to as the Schlosser Report.]

6. That Convention, which is in conformity with Article 220 of the Treaty of Rome and Article 63 of the Brussels Convention, entered into force for Denmark on 1 November 1986, for the United Kingdom on I January 1987 and for Ireland on 1 June 1988.

7. The Convention of 9 October 1978 is thus currently in force between nine Member States of the Communities. While it introduced into the Brussels Convention a number of quite significant amendments, it left unchanged the basic principles of that Convention, as summarized in paragraph 4 above.

3. Luxembourg Convention of 25 October 1982

8. After Greece became a member of the Communities (Europe of Ten), the Luxembourg Convention of 25 October 1982 [2] was concluded on its accession to the 1968 Brussels Convention and to the 1971 Protocol, with the adjustments made to them by the 1978 Convention.

That Convention entered into force between Greece and the other States parties to the 1978 Convention on I April 1989, with the exception of the United Kingdom, for which it entered into force on I October 1989.

[(2) Published in OJ No L 388, 31. 12. 1982. It is accompanied by an explanatory report drawn up by Professors D. Evrigenis and K. D. Kerameus, published 10 OJ. No. C 298, 24. I I. 1986, hereinafter referred to as the Evrigenis-Kerameus Report.}

The amendments made by the Luxembourg Convention to the Brussels Convention and to the 1971 Protocol are technical only [3].

[(3) For the convenience of practitioners, an unofficial consolidated version of the three Conventions (1968, 1978 and 1982) was drawn up by the Council General Secretariat and published in OJ No C 97, 11. 4. 1983. A table giving the dates of publication of the various instruments is provided in Annex I to this report.]

3. Lugano Convention of 16 September 1988

9. The Member States of the European Free Trade Association [4] were desirous of concluding with the Member States of the European Communities a Convention based on the principles of the 1968 Brussels Convention.

[(4) Present EFTA membership: Austria, Finland, Iceland, Norway, Sweden and Switzerland.]

Preparatory proceedings began in 1985 and were completed relatively quickly. They resulted 10 a Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, which was opened for signature in Lugano on 16 September 1988, at the close of a diplomatic conference held at the invitation of the Swiss Government [5].

[(5) Published in OJ No L 319, 25. 11. 1988. The Convention is accompanied by an explanatory report drawn up jointly by Mr P. Jenard and Mr G. Möller, hereinafter referred 10 as the Jenard-Möller Report.]

10. Without entering into great detail, it is important here to note that the Lugano Convention is also based on the fundamental principles of the Brussels Convention [6] and that many of its Articles are identical to those of that Convention.

[(6) See paragraph 4 above.]

Where amendments have been made to the Brussels Convention, these can of ten be regarded as improvements. It was therefore natural that they should be taken into account in the preparatory negotiations, within the Communities, for the accession of Spain and Portugal to the Brussels Convention (see Chapter V).

The relationship between the Brussels and Lugano Conventions is dealt with in a specific Article (Article 54b) [7] of the Lugano Convention.

[(7) Article 54 b states:
'1. This Convention shall not prejudice the application by the Member States of the European Communities of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Brussels on 27 September 19~8 and of the Protocol on interpretation of tbat Convention by the Court of Justice, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities all of these Conventions and the Protocol being hereinafter referred to as the 'Brussels Convention'.
2. However, this Convention shall in any event be applied:
(a) a person, of whatever nationality, domiciled in one Community State, e.g. France, is summoned to appear before a court in another
(a) in matters of jurisdiction, where the defendant is domiciled in the territory of a Contracting State which is not a member of the European Communities, or where Articles 16 or 17 of this Convention confer a jurisdiction on the courts of such a Contracting State;
(b) In relation to a lis pendens or to related actions as provided for in the Articles 21 and 22, when proceedings are instituted in a Contracting State which is not a member of the European Communities and in a Contracting State which is a member of the European Communities;
(c) in matters of recognition and enforcement where either the State of origin or the State addressed' is not a member of the European Communities.
3. In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the ground of jurisdiction on which the judgment has been based differs from that resulting from this Convention and recognition or enforcement is sought against a party who is domiciled in a Contracting State which is not a member of the European Communities, unless the judgment may otherwise be recognized or enforced under any rule of law in the State addressed.’]

end of page Official Journal of the European Communities No. C. 189/39

The Jenard-Möller Report (paragraphs 14 to 17) has the following to say on the subject:

‘As shown above, although the structure of the two Conventions is identical and they contain a great number of comparable provisions, they remain separate Conventions.

Application of the two Conventions is governed by Article 54b. The first point to note is that this Article primarily concerns the courts of member countries of the European Communities, these being the only courts which may be required to deliver judgments pursuant to either Convention. Courts in EFTA Member States are not bound by the Brussels Convention since the EFTA States are not parties to that Convention.

However, Article 54b is relevant for the courts of EFTA countries since it was felt advantageous that Article 54b should, for reasons of clarity, contain details relating to lis pendens, related actions, recognition and enforcement of judgments.

The philosophy of Article 54b is as follows:

According to paragraph 1, the Brussels Convention continues to apply in relations between Member States of the European Communities.

This applies in particular where:

(a). a person, of whatever nationality, domiciled in one Community State, e.g. France, is summoned to appear before a court in another such State, e.g. Italy. The plaintiff's nationality and domicile are immaterial;

(b). a judgment has been delivered in one European Community Member State, e.g. France, and must be recognized or enforced in another such State, e.g. Italy.

The Brussels Convention also applies where a person domiciled outside the territory of a European Community Member State and outside the territory of any other State party to the Lugano Convention. e.g. in the United States, is summoned to appear before a court in a European Community Member State (Article 4 of the Brussels Convention).

In each of these three instances, the Court of Justice of the European Communities has jurisdiction under the 1971 Protocol to rule on problems which may arise with regard to the interpretation of the Brussels Convention.

However, under paragraph 2, the court of a European Community Member State must apply the Lugano Convention where:

1. a defendant is domiciled in the territory of a State which is party to the Lugano Convention and an EFTA member or is deemed to be so domiciled under Articles 8 or 13 of the Convention. For instance, if a person domiciled in Norway is summoned before a French court, jurisdiction will be vested in that court only in the cases for which the Lugano Convention provides. In particular the rules of exorbitant jurisdiction provided for in Article 4 of the Brussels Convention may not be relied on as against that person;
2. the courts of an EFTA Member State possess exclusive jurisdiction (Article 16) or jurisdiction by prorogation (Article 17). The courts of Member States of the European Communities may not, for instance, be seised of a dispute relating to real rights in immovable property situated in the territory of a State party to the Lugano Convention and an EFTA Member State, notwithstanding Article 16 (I) of the Brussels Convention, which does not apply unless the immovable property is situated in the territory of a State party to the 1968 Convention;
3. recognition or enforcement of a judgment delivered in a State party to the Lugano Convention and an EFTA Member State is being sought in a Community Member State (paragraph 2 (2)).

end of page Official Journal of the European Communities No. C. 189/40

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Paragraph 2 also provides that the Lugano Convention applies where a judgment delivered in a Community Member State is to be enforced in an EFTA Member State party to the Lugano Convention.

This does not resolve potential conflicts between the two Conventions, but it does define their respective scope. Obviously, if a judgment has been delivered in a State party to the Lugano Convention and an EFTA Member State and is to he enforced either in a Community Member State or in an EFTA Member State, the Brussels Convention does not apply;

4. Article 54b also contains provisions relating to lis pendens (Article 21) and related actions (Article 22). Under Article 54b (2) (b) a court in a Community Member State must apply these Articles of the Lugano Convention if a court in an EFTA Member State is seised of the same dispute or a related application.
Apart from the greater clarity which they bring, these provisions serve a double purpose: to remove all uncertainty, and to ensure that judgments delivered in the different States concerned do not conflict;

5. Article 54b (3) lays down that a court in an EFTA Member State may refuse recognition or enforcement of a judgment delivered by a court in a Community Member State if the grounds on which the latter court has based its jurisdiction are not provided for in the Lugano Convention and if recognition or enforcement is being sought against a party who is domiciled in any EFTA Contracting State.

These grounds for refusal are additional to those provided for in Article 28, and arise essentially from a guarantee sought by the EFTA Member States. The cases involved can be expected to arise relatively seldom, since with regard to rules of jurisdiction the Conventions are extremely similar. The possibility nevertheless remains. The case would arise in the event of a judgment on a contract of employment delivered by a court in a Community Member State which had erroneously based its jurisdiction with regard to a person domiciled in an EFTA Member State either on Article 4 or Article 5 (1) of the Brussels Convention, i.e. in a manner inconsistent with Article 5 (1) of the Lugano Convention, which includes a specific provision on contracts of employment, or on an agreement conferring jurisdiction which predated the origin of the dispute (Article 17).

However, in the interests of freedom of movement of judgments, the judgment will be recognized and enforced provided that this can be done in accordance with the rules of common law of the State addressed, in particular its common law rules on the jurisdiction of foreign courts;

6. For convenience, we have used the term 'EFTA Member States' in the above examples. Obviously, the same arrangements would apply to States which are not members of either the EEC of EFT A but accede to the Lugano Convention (see Article 62 (1) (b)).'

CHAPTER II  ACCESSION OF SPAIN AND PORTUGAL TO THE 1968 CONVENTION

11. Article 3 (2) of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic to the European Communities states that 'the new Member States undertake to accede to the conventions provided for in Article 220 of the EEC Treaty ... and also to the protocols on the interpretation of those conventions by the Court of Justice, signed by the Member States of the Community as originally constituted or as enlarged and to this end they undertake to enter into negotiations with the present Member States in order to make the necessary adjustments thereto' [1].

[(1) See OJ No L 302, 15.11.1985]

The only Convention in force that is based on Article 220 is the Brussels Convention of 27 September 1968 as adjusted by the 1978 and 1982 Conventions.

end of page Official Journal of the European Communities No. C. 189/41

12. At the request of the two Governments concerned, and ad hoc working party was set up and held its first meeting in Brussels on 20 February 1989 under The chairmanship of Mr A. Boixareu Carrera, First Secretary at the Permanent Representation of Spain to the European Communities.

As rapporteurs, the Permanent Representatives Committee appointed Mr Martinho de Almeida Cruz, Judge at First Instance, Legal Counsellor at The Permanent Representation of Portugal to the European Communities. Mr Manuel Desantes Real, Professor in The Law Faculty of the University of Alicante and Mr Paul Jenard, Honorary Director of Administration at the Belgian Ministry of Foreign Affairs.

The ad hoc working party met three times between 20 February and 10 April 1989 [1].

[(1) For the list of participants, see Annex II]

13. This report deals with:

- the technical adjustments to the Brussels Convention (Chapter IV),
- the adjustments which take account of the Lugano Convention (Chapter V).

In addition, particular attention is given to the final provisions of the Accession Convention, especially as regards its entry into force and territo¬rial application (Chapter VI).

The amendments to the 1971 Protocol on the interpretation of the Convention by the Court of Justice, although only technical, are dealt with in a separate chapter (Chapter VII).

CHAPTER III  INTRODUCTORY REMARKS

In the interests of clarity, we have referred in the report to the corresponding Artic1es of the Brussels Convention. However, Articles land 2 of Accession Convention have no equivalent in the Brussels Convention.

Article 1 containing the undertaking by Spain and Portugal to accede to the Brussels Convention as adjusted by the subsequent Conventions gives rise to no particular comment.

Article 2 includes the provision that The formal adjustments to those Conventions are set out in Annex I to the 1989 Convention, of which it forms an integral part. This provision is designed, in the interests of legal security, to align the various language versions on those of the Lugano Convention, as a number of minor errors in the earlier Conventions were discovered during these negotiations. As Annex I forms an integral part of the Convention, it is the adjusted texts that will be authentic.

CHAPTER IV  TECHNICAL ADJUSTMENTS MADE TO THE BRUSSELS CONVENTION BY THE CONVENTION ON THE ACCESSION OF SPAIN AND PORTUGAL

14. The adjustments concern only:

- exorbitant jurisdictional bases (Article 3 BC 1968),
- the list of Spanish and Portuguese courts with jurisdiction to apply Title III regarding the recognition and enforcement of judgments,
- bilateral Conventions concerned by the Accession Convention.

1. Exorbitant jurisdictional bases (Article 3)

15. Portugal:

Articles 65 (l) (c), 65 (2) and 65a (c) of the Code of Civil Procedure and Article 11 of the Code of Labour Procedure.

This provision, inserted in Article 3 of the Accession Convention, is included in the Lugano Convention: ...

end of page Official Journal of the European Communities No. C. 189/42

... on the basis of information provided by the Portuguese delegation, the Jenard-Möller Report comments as follows (paragraph 31):

'Article 65 of Chapter 11 of the Code of Civil Procedure provides that a foreign national may be sued in a Portuguese court where:
- (paragraph 1 (c)) the plaintiff is Portuguese and, if the situation were reversed, he could be sued in the courts of the State of which the defendant is a national,
- (paragraph 2) under Portuguese law, the court with jurisdiction would be that of the defendant’s domicile, if the latter is a foreigner who has been resident in Portugal for more than six months or who is fortuitously on Portuguese territory provided that, in the latter case, the obligation which is the subject of the dispute was entered into in Portugal.

Article 65a (c) of the Code of Civil Procedure confers exclusive jurisdiction on Portuguese courts for actions relating to employment relationships if any of the parties is of Portuguese nationality.
Article 11 of the Code of Labour Procedure gives jurisdiction to Portuguese labour courts for disputes concerning a Portuguese worker where the contract was concluded in Portugal.'

16. Spain:

Articles 21 and 25 of the Spanish Ley Orgánica del Poder Judicial of I July 1985 governing the international jurisdiction of Spanish civil and social courts are directly based on the Brussels Convention, although drafted unilaterally. There are thus no such exorbitant bases in Spain.
In any event, the particulars for insertion in Article 3 of the Convention are not exhaustive since neither is the list contained in that Article, which merely cites examples, thus if there were any exorbitant jurisdiction, it, too, would be inapplicab1e.

2. Spanish and Portuguese courts having jurisdiction to apply Title III of the Convention

17. The additions are essentially technical in nature:

The formal adjustments to Articles 32 to 41 (...) relate exclusively to the courts having jurisdiction and the types of appeal that may be lodged against their judgments.

With regard to Portugal, it should be pointed out that the term 'appeal on a point of law' used in Articles 37 and 41 re1ates to the restriction of the grounds of appeal to an incorrect application of the law as opposed to an incorrect assessment of the facts.

3. Relationship to existing Conventions and Community acts

(a) Bilateral Conventions (Article 55)

18. The list of bilateral Conventions on the recognition and the enforcement of judgments (of general scope) covers the Conventions conduced by Spain with France, Italy and the Federa1 Republic of Germany. Portugal has concluded no such Conventions with the Member States of the European Communities.

For the scope of Article 55 of the Brussels Convention the reader is referred to page 59 of the Jenard Report.

Article 58: Franco-Swiss Convention

19. During the negotiations on the Accession Convention it was considered advisable to specify the scope of Article 58 of the 1968 Convention with regard to the application of the Franco-Swiss Convention on jurisdiction and enforcement of judgments in civil matters, signed at Paris on 15 June 1869.
The attention accorded to this Convention is due not to its age but to the fact that it will cease to have effect once the Lugano Convention enters into force between France and the Swiss Confederation. The aim here was to prevent any conflict between the Brussels Convention and the Lugano Convention.

(b) Multilateral Conventions (Article 57)

20. This matter is covered by Article 57. Article 57 (2) lays down a much more detailed system for settling conflicts of convention between the Brussels Convention and Conventions concluded on a particular matter. This provision was adopted in the 1978 Accession Convention (see Schlosser Report, paragraphs 238 to 246). In the interests of clarity it was thought preferable that it should be reproduced ...

end of page Official Journal of the European Communities No. C. 189/43

... as such in Article 57 (2), just as it was included in the Lugano Convention, although with some differences from that Convention in order to ensure greater freedom of movement of judgments in the Community (see Jenard-Möller Report, paragraphs 81 to 83).

(c) Community acts (Article 57 (3))

21. This provision, which appears in the 1978 Convention, has been incorporated as such.

It should be noted that no Community act (Regulation or Directive) has so far contained any provision relating to jurisdiction and the recognition and enforcement of judgments.

The problem of Community acts in relations between the Member States of the European Communities, i.e. in the Convention on the accession of Spain and Portugal, undoubtedly differs considerably from that which arises in relations with third countries. It is thus normal that on this point the Accession Convention should depart from the Lugano Convention (see Protocol 3 and relevant Declaration, and Jenard-Möller Report, paragraphs 120 to 128).

4. Special consideration regarding Spain: Actions on a warranty or guarantee

22. Third party intervention in proceedings is not governed by explicit rules in the Spanish legal system and the want of proper procedures is the source of procedural uncertainty. This legal hiatus has been severely criticized in the works of legal experts, who have recommended that it be remedied in the near future. However, this has not prevented acceptance of third party proceedings in some fields of jurisprudence or in civil laws governing certain specific cases, e.g. Article 124 (3) of Law No 11 of 20 March 1986 on patents and Article 1482 [1] of the Civil Code, regarding eviction. Generally speaking, it is the latter rule which is applicable in cases of non-voluntary third party proceedings; in the negotiations between the Member States of the European Communities and those of the European Free Trade Association, it was therefore judged advisable to include it in Article V of Protocol I. Article 1482 is referred to, albeit indirectly, in Articles 638 (gift), 1145 (joint and several obligations), 1529 (assignment of claims), 1540 (exchange), 1553 (tenancy) 1681 (obligations of partners), 1830 (surety), 1831 (co-surety), etc. of the Civil Code.

[(1) Article 1482 of the Spanish Civil Code:
'The purchaser against whom an action for eviction is brought shall request, within the period specified by the Code of Civil Procedure for replying to the action, that it be served on the vendor(s) as soon as possible.
Service shall be in the manner specified in the said Code for service on defendants.
The time limit for reply by the purchaser shall be suspended until the expiry of the period notified to the vendor(s) for appearing and replying to the action, which shall correspond to The periods laid down for all defendants by the Code of Civil Procedure and shall run from the date of the service referred to in the first paragraph of this Article. If those cited in eviction proceedings fail to appear in the manner and time specified, the period allowed for replying to the action shall be extended in respect of the purchaser.' ]

When the problem arose during the negotiations for Spanish and Portuguese accession to the Brussels Convention, the Spanish delegation concluded that jurisprudence in this area could soon develop beyond the limited case of Article 1482 of the Civil Code. It therefore seemed wiser to omit any reference to Spain in Article V of Protocol I, with there to be no difference in interpretation between the Lugano Convention and The Brussels Convention.

CHAPTER V  AMENDMENTS INCORPORATED FROM THE LUGANO CONVENTION

1. Article 5 (1) Contract of employment

23. (a) In negotiations for the Lugano Convention, the EFTA Member States requested that the question of the contract of employment should, where Article 5 and Article 17 were concerned (on the latter Article, see 27 below), be covered by independent provisions in order to ensure that the interpretation of it was that given on a number of occasions by the Court of Justice (see in particular the judgment of the Court of 26 May 1982 in Ivenel v. Schwab, Case 133/81, ECR 1982, p.1891, and that given on IS January 1987 in Shenavai v. Kreischer, Case 266/85, ECR 1987, pp.239 to 257). Under the new Article 5 (l) of the Lugano ...

end of page Official Journal of the European Communities No. C. 189/44

... Convention on the question of the contract of employment, the place of performance of the obligation in question is taken to mean that where the employee habitually carries out his work; if he does not habitually carry out his work in any one country, this place is the place of business through which he was engaged (see Jenard-Möller Report, paragraphs 35 to 44).

(b) Following signature of the Lugano Convention, the working party took cognizance of the judgment given by the Court of Justice on 15 February 1989 (Six Constructions v. Humbert, Case 32/88). In the case, the French Cour de Cassation (Court of Cassation) had requested a ruling, inter alia. on the following question: 'what is the obligation to be taken into account for the purposes of the application of Article 5 (I) of the Brussels Convention of 27 September 1968 where the court is faced with claims based on obligations arising under a contract of employment binding an employee resident in France to a company having its registered office in Belgium which sent him to several countries outside Community territory?'

Although in the operative part of this judgment the Court of Justice restricts itself to pointing out that 'Article 5 (1) of the Convention must be interpreted as meaning that, as regards contracts of employment, the obligation to be taken into consideration is that which characterizes the contract, in particular the obligation to carry out the duties agreed', it stress es obiter dictum the need to ensure adequate protection for the contracting party in the weaker position from the social point of view -:- i.e. the employee - concluding that 'the particular characteristics of contracts of employment do not justify an interpretation under which Article 5 (I) of the Convention would allow the place where the business which engaged the employee is situated to be taken into consideration in cases where it would be difficult or impossible to say in which State The work bad been carried out'.

(c) The solution adopted attempts to improve on that adopted by the Lugano Convention without departing from it too greatly, while following the guidelines laid down by the Court of Justice on the protection of the weaker party in the contractual relationship (note the same concern for protection in Article 17 (5) at 27 below). It was therefore agreed that, where the employee does not habitually carry out his work in any one country, the assumption contained in the last part of Article 5 (1) of the Lugano Convention is to operate in favour of the employee only. In order to avoid all ambiguity, the text states that the employee may bring proceedings before the courts for the place where the business [1] which engaged him was situated either at the time of engagement or at the time when proceedings are brought. This stipulation was found necessary following discussions held within the working party on the degree to which the Six Constructions v. Humbert ruling should be taken into account.

[(1) The term 'place of business', as in the Lugano Convention, is to be understood in the broad sense; in particular, it covers any entity such as a branch or agency with no legal personality (see Jenard-Möller Report, paragraph 43). On the concept of 'place of business' see also the judgments of the Court of Justice of 22 November 1978 (Somafer v. Ferngas, Case 33178, ECR 1978, pp. 2183¬2195) and 19 December 1987 (Schotte v. Rothschild, Case 218/86,OJ No C 2, 6. I. 1988, p. 3).]

(d) It follows from the same concern to protect the employee that the expression 'in any one country' also includes cases where the work has been carried out, in whole or in part, outside Community territory.

(e) The effect of this provision is that, in any dispute between an employer and an employee, where the employee does not habitually carry out his work in any one country (whether or not within the Community):

1. the employer can only bring an action before the courts indicated in general terms in Article 2;
2. the employee can bring proceedings before the courts indicated in general terms in Article 2 or those in the last part of Article 5 (1) (the courts within the jurisdiction of which the business which engaged the employee is or was situated).

2. Article 6 (4) Combinations of actions in rem and in personam

24. This provision is taken directly from the text of the Lugano Convention. The Jenard-Möller Report (paragraphs 46 and 47) gives the following commentary on it:

'When a person has a mortgage on immovable property the owner of that property is quite of ten also personally liable for the secured debt. Therefore it bas in some States been made possible to combine an action concerning the personal liability of the owner with an action for the enforced sale of the ...

end of page Official Journal of the European Communities No. C. 189/45

... immovable property. This presupposes of course that the court for the place where the immovable property is situated also has jurisdiction as to actions concerning the personal liability of the owner.

It was agreed that it was practical that an action concerning the personal liability of the owner of an immovable property could be combined with an action for the enforced sale of the immovable property in those States where such a combination of actions was possible. Therefore it was deemed appropriate to include in the Convention a provision according to which a person domiciled in a Contracting State also may be sued in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Contracting State in which the property is situated.

To illustrate, let us assume that a person domiciled in France is the owner of an immovable property situated in Norway. This person has raised a loan which is secured through a mortgage on his immovable property in Norway. In the eventuality of the loan not being repaid when due, if the creditor wants to bring an action for the enforced sale of the immovable property, the Norwegian court has exclusive jurisdiction under Article 16 (I). This court has however, under the present provision, moreover jurisdiction as to action against the owner of the property concerning his personal liability for the debt, if the creditor wants to combine the latter action with an action for the enforced sale of the property.

It goes without saying that this jurisdictional basis cannot exist by itself. It must necessarily be supplemented by legal criteria which determine on which conditions such a combination is possible. Thus the provisions already existing in or which in the future may be introduced into the legal systems of the Contracting States with reference to the combining of the abovementioned actions remain unaffected by the Lugano Convention.

It goes without saying however that the combination of the two actions which this paragraph deals with have to be instituted by the "same claimant". The "same c1aimant" includes of course also a person to whom another person has transferred his rights or his successor.'

3. Article 16 (1) Tenancies

25.  (a) Taking into consideration the Lugano Convention and the intention, according to the Jenard (page 35) and Schlosser (paragraph 164) Reports, of the drafters of the Brussels Convention, the working party decided to insert a new subparagraph (b) in Article 16 (I), containing a special provision on short-term tenancies. This insertion was necessary in view of the fact that, in giving a ruling on the provision as drafted in 1968, the Court had been obliged to interpret literally Artic1e 16 (1) of the Convention and to decide that it applied to all proceedings concerning the payment of rent, inc1uding cases of short-term rental of holiday accommodation Judgment of 15 January 1985, Rösler v. Rottwinkel, Case 241/83, ECR 1985, pp. 99 to 129).

(b) Because of the interpretation given by the Court to Article 16 (1), the Member States of EFTA and a number of Member States of the Communities expressed interest in including in the Lugano Convention a provision relating to tenancies of immovable property for limited periods. An agreement covering this was reached by which Article 16 (I) would be supplemented by the addition of a new subparagraph (b) (see Jenard-Möller Report, paragraph 49 et seq.).

(c) The solution adopted by the Accession Convention differs from that contained in the Lugano Convention. In the first place, it is more restrictive: under subparagraph (b), the plaintiff may also bring an action before the courts of the Contracting State in the territory of which the defendant has his domicile where the proceedings concern tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months - this refers in particular to contracts agreed for holiday purposes - if (and only if) the tenant and the landlord are natural persons domiciled in the same Contracting State. Legal persons are excluded on the grounds that they are generally concerned with commercial transactions.

Secondly, this provision is not accompanied by any reservation option, since the introduction of a reservation was considered hardly conceivable in connection with a onvention based on Article 220 of the Treaty of Rome. It should be noted that Article I b in Protocol 1 to the Lugano Convention allows for the possibility of entering a reservation by which any Contracting State may deciare that it will not recognize or enforce a decision on tenancies of immovable property if the property concerned is situated on the territory of the State entering ...

end of page Official Journal of the European Communities No. C. 189/46

... the reservation, even where the tenancy is of the type referred to in Article 16 (I) (b) and where the jurisdiction of the court of the State of origin is based on the domicile of the defendant (see Jenard-Möller Report, paragraph 53).

(d) As already pointed out in the Jenard-Möller Report (paragraph 54), 'Article 16 (1) applies only if the property is situated in the territory of a Contracting State. The text is sufficiently explicit on this point. If the property is situated in the territory of a third State, the other provisions of the Convention apply, e.g. Article 2 if the defendant is domiciled in the territory of a Contracting State, and Article 4 if he is domiciled in the territory of a third State, etc.'

4. Article 17 Agreements conferring jurisdiction

(a) Form of agreements conferring jurisdiction

26. Paragraph I of Article 17 is once again directly from the text of the Lugano Convention.

The Jenard-Möller Report deals with this point at some length (see paragraphs 55 to 59); in summary, it says that, under the new arrangements adopted, agreements conferring jurisdiction should be:
- in writing or evidenced in writing; this is in accordance with the terms of the 1968 Convention,
- or in a form which accords with practices which the parties have established between themselves; on this, see the judgment of the Court of Justice of 14 December 1976, Case 25176, Segoura v. Bonakdarian, ECR 1976, pp. 1851 to 1863,
- or, in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware (this is in accordance with the amendments made by the 1978 Convention to the 1968 Convention), but in addition this usage in such trade or commerce must be widely known to, and regularly observed by parties to contracts of the type involved in the particular trade or commerce concerned.

These conditions supplementary to the text of the 1978 Convention were taken from Article 9 (2) of the 1980 Vienna Convention on International Contracts for the Sale of Goods.

(b) Agreements conferring jurisdiction in matters relating to contracts of employment (Article 17 (5))

27.  (a) This paragraph relates to agreements conferring jurisdiction in matters relating to contracts of employment.
There is no one provision of the 1968 Brussels Convention, as modified by the 1978 and 1982 Conventions; which expressly deals with this subject although it has given rise to a judgment of the Court of Justice [1].

[(1) See judgment of the Court of Justice of 13 November 1979 in Case 25179, Sanicentral v. Collin, ECR 1979, pp. 3423 to 3431.]

(b) During negotiations for the Lugano Convention, the representatives of the Member States of EFTA proposed the addition of a new paragraph to Article 17 to the effect that agreements conferring jurisdiction in the matter of an individual contract of employment should only have legal force if they are entered into after the dispute has arisen. The addition was accepted in view of the fact that the idea underlying this provision was the protection of the employee who from the socioeconomic point of view is regarded as the weaker in the contractual relationship (see Jenard-Möller Report, paragraph 60).

(c) It was natural that this amendment made by the Lugano Convention to the Brussels Convention should be the subject of particularly careful study during the negotiations on the Accession Convention, having regard also to the judgment given on 15 February 1989 by the Court of Justice, in which the Court, too, in its grounds for judgment gave particular attention to the protection of the weaker party, i.e. the employee (Case 32/88, Six Constructions v. P. Humbert, OJ No C 62, 11. 3. 1979, p.7; see also 23 above).

(d) The solutiotion adopted by the Accession Convention differs from that contained in the Lugano Convention in its emphasis on protection of the employee.
In other words, the solution incorporated in the Lugano Convention was considered too radical: this would be the case in particular where the agreement conferring jurisdiction, while entered into prior to the dispute arising, could in the employee's own view be favourable to him. For this reason the new paragraph 5 in Article 17 of the Convention provides that the agreement conferring jurisdiction may only take effect where it is entered into after the dispute ....

end of page Official Journal of the European Communities No. C. 189/47

... has arisen - as in the Lugano Convention - or if 'the employee invokes it to seise courts other than those for the defendant's domicile or those specified in Article 5 (1)', which moderates the radicality of the Lugano Convention.

(e) It follows from this provision that:

1. The employee, in any dispute with the employer, may refer the dispute to the agreed courts having jurisdiction, even if the agreement conferring jurisdiction was entered into prior to the dispute arising.

2. Under the terms- of the new provision this option is only open to the employee so that he may himself refer the dispute to the court to which prorogation is made; he could not make use of it in exceptional circumstances, e.g. if he were summoned to appear before the courts of his domicile. The latter possibility is denied him for the sake of protecting legal security and avoiding delaying action.

3. Finally, if the clause conferring jurisdiction attributes it to a court in the State of the defendant's domicile, the court to which prorogation has specially been made would have jurisdiction if the Convention is invoked by the employee. This should be the case, given that the deciding factor is the employee's choice and that where protection of employees is concerned the legal systems of different Contracting States are not all in agreement.

(f) In this new construction, the choice between the courts having jurisdiction (courts of the State of the defendant's domicile, place of performance of the contract of employment or to which prorogation has been made) thus lies entirely at the discretion of the employee in his capacity as plaintiff.

5. Article 21 Lis pendens

28. Article 21 of the Brussels Convention has been brought into line with Article 21 of the Lugano Convention, which lays down that in cases of lis pendens a court other than the one first seised, instead of declining jurisdiction of its own motion, must stay its proceedings of its own motion until the jurisdiction or the first court seised has been established. The Jenard-Möller Report (paragraph 64) contains the following commentary on this:

'Only this Article has been amended in Section 8.

Article 21 of the Brussels Convention provides that in cases of lis pendens. any court other than the court first seised must of its own motion decline
jurisdiction in favour of th at court and may stay its proceedings if the jurisdiction of the other court is contested.

The representatives of the EFTA Member States thought this solution was too radical.

They observed that an action of ten had to be brought in order to comply with a time limit or stop further time from running, and that opinions differed as to whether a time limit had been complied with where an action had been brought before a court lacking jurisdiction internationally.

Thus, in their view, if an action was brought before a judge who would have had jurisdiction, but was not the first to be seised, that judge would of his own motion have to decline jurisdiction in favour of the court first seised. However, that court might perhaps decide that it did not have jurisdiction. In that case, both actions would have been dismissed with the result that the time limits might have run out and the action be time barred.

These remarks have been taken into consideration. Article 21 has been amended so that the court other than the court first seised will of its own motion stay its proceedings until the jurisdiction of the other court has been established.

A court other than the one first seised will not decline jurisdiction in favour of the court first seised until the jurisdiction of the latter has been established (see Schlosser Report, paragraph 176).

The Court of Justice has ruled that the concepts employed in Article 21 te define a case of lis pendens should be considered to be 'independent' (point 11 of the grounds for judgment) and that the term lis pendens to which Article 21 refers covers a case where a party brings an action before a court in a Contracting State for a declaration that an international sales contract is inoperative or for the termination thereof whilst an action by the other party to secure performance of the said contract is pending before a court in another Contracting State' (judgment of 8 December 1987 in Case 1441 86, Gubisch v. Palumbo, OJ No C 8, 13. l. 1988, p.3).

6. Articles 31 and 50

29. The expression 'when the order for its enforcement has been issued', used in the Brussels Convention has been replaced by 'when it has been declared enforceable', as in the Lugano Convention. This amendment to the Brussels Convention was adopted in order to bring the two Conventions into line, particularly since the two expressions may be considered virtually equivalent (see also the Jenard-Möller Report, paragraph 68 and 69, on this).

7. Article 52 (3)

30. The third paragraph of Article 52 has been deleted, in line with the Lugano Convention, as pointed out ...

end of page Official Journal of the European Communities No. C. 189/48

.... in the Jenard-Möller Report. This course was taken in view particularly of developments since the 1968 Convention was drafted as regards the domicile of married women (for further explanation, see the Jenard-Möller Report, paragraph 53).

8. Article 54 Transitional provisions

31. 1. Only technical adjustments have been made to the first and second paragraphs of this Article. No modification to the substance has been made (see Jenard Report, pp. 57 and 58, Schlosser Report, paragraphs 228 to 235 and Jenard-Möller Report, paragraph 74).

2. During negotiations for the 1989 Accession Convention it was considered appropriate to reproduce the third paragraph of Article 54 of the Lugano Convention and specify the scope of the words 'this Convention'. This paragraph corresponds to Article 35 of the 1978 Accession Convention (see Schlosser Report, paragraphs 121 el seq.) and was declared to extend to the accession of the the Hellenic Republic by virtue of Article I (2) of the 1982 Accession Convention. For reasons of c1arity, the 1989 Accession Convention defines what is to be understood by 'date of entry into force'. It was agreed that the provision shall only apply to agreements in writing dating from before 1 January 1987 where the United Kingdom is concerned and I June 1988 where Ireland is concerned.

9. Article 54a

32. This Article corresponds to Article 36 of the 1978 Accession Convention and Article 54a of the Lugano Convention (see Schlosser Report, paragraphs 121 et seq., and Jenard-Möller Report, paragraph 75).

It should be noted that despite the wording of Article 54a of the Lugano Convention this provision does not apply to Greece, as Greece has ratified the Brussels Convention of 10 May 1952 on the Arrest of Seagoing Ships. That Convention will also shortly be ratified by Denmark, and the approval procedure is under way in Ireland.

CHAPTER VI  FINAL PROVISIONS

1. Territorial application

33. This question was specifically dealt with by Artic1e 60 of the 1968 Convention, as amended by Article 27 of the 1978 Accession Convention. Those two Articles are rescinded by Article 21 of this Accession Convention.

Under those Articles 60 and 27, the 1968 and 1978 Conventions applied to the European territory of the Contracting States, but special provisions applied to France, Denmark, the Netherlands and the United Kingdom.

In accordance with those provisions and with statements made, where in existence, the situation at the date of signature of the Convention on the accession of Spain and Portugal is as follows:

(a) France: The 1968 Convention as modified by the 1978 Convention applies to all territories which are an integral part of the French Republic (see Articles 71 el seq. of the Constitution), including therefore the French Overseas Departments (Guadeloupe, Martinique, Guiana, Réunión), the Overseas Territories (Polynesia, New Caledonia, Southern and Antarctic Territories) and the individual territorial collectivities (Saint Pierre and Miquelon, Mayotte).
(b) Denmark: The 1978 Convention does not apply:
- either to the Faroe Islands, in the absence of any declaration to that effect.
- or to Greenland, as Denmark declared upon deposit of its instrument of ratification that the Convention did not extend to Greenland.
(c) The Netherlands: Since I January 1986, the Kingdom of the Netherlands consists of three countries, namely: the Netherlands, the Netherlands Antilles (the islands of Bonaire, Curaçao, Sint Maarten (Netherlands part of the island), Sint Eustatius and Saba) and Aruba.

It should be noted here that the 1968 Convention stated that the Government of the Netherlands could declare the Convention applicable to Surinam and the Netherlands Antilles and that, in the absence of such declaration with respect to the Netherlands Antilles, proceedings taking place in the European territory of ...

end of page Official Journal of the European Communities No. C. 189/49

... the Kingdom as a result of an appeal in cassation against the judgment of a court in the Netherlands Antilles should be deemed to be proceedings in the latter court.

In the 1978 Convention, the same provision was adopted except in relation to Surinam (Article 27 of the Accession Convention). The Convention therefore does not extend to Surinam. Upon deposit of the Netherlands' instrument of ratification regarding the 1978 Convention, it was expressly stated that the instrument included the declaration that the ratification applied only 10 the Kingdom in Europe.

As regards other territories which since 1986 have been part of the Kingdom of the Netherlands, it should be noted that the Convention 's application was extended to Aruba on 30 June 1986

(d) United Kingdom: The 1978 Convention (Article 27) providing that the Convention applied only to the European territory of the Contracting States specified that it did not apply to European territories situated outside the United Kingdom for the international relations of which the United Kingdom was responsible, in the absence of a declaration to the contrary by the United Kingdom with respect to such a territory (on these territories, see Schlosser Report, paragraph 252). No such declaration has been made by the United Kingdom.

34. In conclusion, on the date of the opening for signature of the Convention on the accession of Spain and Portugal, the 1968 Convention as modified by the 1978 and 1982 Conventions:
(a) applied to all territories which are an integral part of the French Republic;
(b) in the case of Denmark, did not apply to Greenland or the Faroe Islands;
(c) in the case of the Netherlands, applied only to the Kingdom's territory in Europe and to Aruba;
(d) in the case of the United Kingdom, did not apply to European territories situated outside the United Kingdom for the international relations of which the United Kingdom was responsible.

2. Effect of deletion of Article 60

35. The deletion of Article 60 is in agreement with the solution adopted in the Lugano Convention which also includes no clause on territorial application (see Jenard-Möller Report, paragraphs 91 to 96).

The Convention could therefore be applicable to non-European territories.

36. (a) Territories affected

France: See 33 above.

Spain: The Convention applies to the whole territory of the Kingdom of Spain.

Portugal: The Convention applies to the whole territory of the Portuguese Republic. An extension of the Convention to Macao and East Timor would be possible.

Denmark: Denmark could extend the application of the Convention to the Faroe Islands and Greenland.

The Netherlands: The Netherlands could extend application to the Netherlands Antilles, extension to Aruba having already been accomplished.

United Kingdom: The list of non-European territories for the international relations of which the United Kingdom is responsible is given in Annex III.

It should be noted that in the negotiations leading up to the Lugano Convention, the United Kingdom indicated that, of its non-European territories, Anguilla, Bermuda, the British Virgin Islands, Montserrat, the Turks and Caicos Islands and Hong Kong were ones to which there might be a real prospect of the Convention being extended.

37. (b) Transitional situations

1. It could happen that before entry into force of the Accession Convention with regard to one of the States concerned (e.g. Denmark or the United Kingdom), that State might make declarations of extension on the basis of Article 60 of the 1978 Convention.
In our view, such declarations would become effective with regard to the States which were parties to the 1978 Convention and would continue to apply with regard to Spain and Portugal as from the entry into force of the Accession Convention between those countries and the territory concerned.

2. The effect of the progressive implementation of the Convention on the accession of Spain and Portugal is that for a transitional period this Convention and the 1968 Convention, as modified by the 1978 and 1982 Conventions will be governing relations between the Member States of the Communities simultaneously. To illustrate this, ...

end of page Official Journal of the European Communities No. C. 189/50

... the following example may be taken: if Spain and the Netherlands are the first two States ratifying the Convention on the accession of Spain and Portugal, that Convention will govern relations between them, but between the Netherlands and the other States which have ratified the 1978 and 1982 Conventions it will be the provisions of those two Conventions which will remain applicable.

This duality is not without implications for the territorial application of the Conventions. If it is supposed that after ratifying the Convention on the accession of Spain and Portugal the Netherlands wishes to extend it to the Netherlands Antilles, its declaration of extension would have to be made not only on the basis of Article 60 of the 1968 Convention [1] so that the extension will be effective with regard to the other States which are party to that Convention, but also in conformity with the rules of public international law so that it will be effective with regard to Spain and Portugal.

[(1) Article 60 here means Article 60 of the 1968 Convention. as modified by Article 27 of the 1978 Convention.]

3. Concerning the United Kingdom, under Article 60 (16) of the 1978 Convention, the United Kingdom may extend the Convention’s application 'to European territories' situated outside the United Kingdom for the international relations of which it is responsible.

The 1978 Convention does not give the United Kingdom the right to extend the application of this Convention to non-European territories for the international relations of which it is responsible.

Extension of the Convention even to non-European territories for the international relations of which the United Kingdom is responsible will therefore be governed in accordance with the rules of public international law.

38. The situation might prove somewhat complex for a time, but this demonstrates that there is every incentive to ensure that the Convention on the accession of Spain and Portugal is ratified as soon as possible by all the Member States of the Communities.

3. Entry into force

39. 1. Under Article 32 of the 1989 Accession Convention, it will enter into force when it has been ratified by two signatory States one of which is the Kingdom of Spain or the Portuguese Republic.

2. An accelerated entry into force of the Convention has been intentionally sought after. This intention was confirmed by the Declaration annexed to the Convention, which establishes a link between the Brussels Convention and the completion of the internal market and urges the States to adopt appropriate measures for ratification as soon as possible and, if possible, by 31 December 1992. The effect of Article 32 is that the Convention could enter into force between Spain and Portugal if they were the first countries to ratify it.

3. It was understood that even in such circumstances the Court of Justice would have jurisdiction to give a ruling on the interpretation of the Accession Convention.

CHAPTER VII  LUXEMBOURG PROTOCOL OF 3 JUNI 1971

40. In general it may be said that the 1971 Protocol has been adapted to successive Accession Conventions. Its basic structure, which falls within the framework of Article 177 of the Treaty of Rome, has not been altered.

The considerations contained in the Jenard Report (OJ No C 59, 5.3. 1979, p. 66), Schlosser Report (paragraphs 255 and 256) and Evrigenis-Kerameus Report (paragraphs 91 to 99) are therefore appropriate for consultation purposes.

The necessary technical adjustments consequent upon the accession of Spain and Portugal were made.

Articles 26 and 27 of the 1989 Accession Convention have deleted Articles 6 and 10 (d) of the Protocol relating to the Convention 's territorial application.

end of page Official Journal of the European Communities No. C. 189/51

CHAPTER VIII  CONCLUSIONS

1. The situation as revealed in this report may appear to be fairly complex, as the specialist finds himself confronted with a number of international instruments applying to a single area.

2. Without denying this complexity, one should not lose sight of the fact that this is a process which involves a very great effort on the part of 18 European States for the purpose of achieving, in the specific area of jurisdiction and recognition and enforcement of judgments in civil and commercial matters, a true European judicial area resting on common foundations. This creation has been brought about by successive accretions resulting from the extension of the Communities and from the interest shown by the EFTA countries in the Brussels Convention.

3. As a remedy, consideration should first be given to early ratification by all the States concerned of the Convention on the accession of Spain and Portugal, in accordance with the terms of the Declaration and because of the links between the Convention and the single market to which it draws attention. The situation would then certainly be clearer with the Brussels Convention brought up to date, as it were, by all the Member States of the Communities. This apart, arrangements have been adopted - as we described in our discussion of the final provisions (Chapter VI) - to speed up the implementation of this Accession Convention.

4. An early ratification of the Lugano Convention is of no less interest. At a practical level, it would protect persons domiciled in a Member State of the Communities in that they could no longer be required to appear before the courts of EFTA Member States on exorbitant bases, and it would also ensure free movement of judgments. In economic terms, the EFTA countries are the European Communities' principal customer ahead even of the United Stat es and Japan together; conversely, the Communities represent the EFTA countries' most important market. The Lugano Convention should resolve any disputes that may arise in the course of such trade.

5. Since 1 October 1989 the Brussels Convention has been in force between 10 Member States of the Communities. The following summary indicates the various stages which have been reached:

1. The 1968 Brussels Convention entered into force on I February 1973 between Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands. The Protocol of 3 June 1971 entered into force between those six countries on I September 1975.

2. The 1968 Convention was replaced by the 1978 Convention in relations between those six States and Denmark with effect from 1 November 1986, between all of those and the United Kingdom with effect from I January 1987 and between all of those and Ireland with effect from I June 1988.

3. The 1982 Convention on the accession of Greece entered into force on I April 1989 between Greece and Belgium, the Federal Republic of Germany, Denmark, France, Ireland, Italy, Luxembourg and the Netherlands. It has applied to the United Kingdom since I October 1989.

4. The 1989 Accession Convention will enter into force when it has been ratified by two signatory States one of which is the Kingdom of Spain or the Portuguese Republic.

5. The Lugano Convention of 16 September 1988 will enter into force when it has been ratified by two States one of which is a member of the Communities and the other a member of EFTA.

end of page Official Journal of the European Communities No. C. 189/52