| JENARD
REPORT 1968 Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Signed at Brussels, 27 September 1968) by Mr P. Jenard Director in the Belgian Ministry of Foreign Affairs and External Trade. committee of experts set up in 1960 by decision of the Committee of Permanent Representatives of the Member States, following a proposal by the Commission, prepared a draft Convention, in pursuance of Article 220 of the EEC Treaty, on jurisdiction and the enforcement of judgments in civil and commercial matters. The committee was composed of governmental experts from the six Member States, representatives of the Commission, and observers. Its rapporteur, Mr P. Jenard, Directeur d' Administration in the Belgian Ministry for Foreign Affairs and External Trade, wrote the explanatory report, which was submitted to the governments at the same time as the draft prepared by the committee of experts. The following is the text of that report. It takes the form of a commentary on the Convention which was signed in Brussels on 27 September 1968.
end of page No C 59/2 Official Journal of the European Communities (05-03-1979) end of page Official Journal of the European Communities No C 59/3 (05-03-1979) 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. The fact that the Treaty of Rome requires the Member States to resolve this problem shows that it is important. In a note sent to the Member States on 22 October 1959 inviting them to commence negotiations, the Commission of the European Economic Community pointed out that a true internal market between the six States will be achieved only if adequate legal protection can be secured. The economic life of the Community may be subject to disturbances and difficulties unless it is possible, where necessary by judicial means, to ensure the recognition and enforcement of the various rights arising from the existence of a multiplicity of legal relationships. As jurisdiction in both civil and commercial matters is derived from the sovereignty of Member States, and since the effect of judicial acts is confined to each national territory, legal protection and, hence, legal certainty in the common market are essentially dependent on the adoption by the Member States of a satisfactory solution to the problem of recognition and enforcement of judgments. On receiving this note the Committee of Permanent Representatives decided on 18 February 1960 to set up a committee of experts. The committee, consisting of delegates from the six Member countries, observers from the Benelux Committee on the unification of law and from the Hague Conference on private international law, and representatives from the EEC Commission departments concerned, met for the first time from 11 to 13 July 1960 and appointed as its chairman Professor Billow then Ministerialdirigent and later Staatssekretar in the Federal Ministry of Justice in Bonn, and as its rapporteur Mr Jenard, directeur in the Belgian Ministry for Foreign Affairs. At its 15th meeting, held in Brussels from 7 to 11 December 1964, the committee adopted a ' Preliminary Draft Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the enforcement of authentic instruments (document 143711IV/64). This preliminary draft, with an explanatory report (document 2449/IV/65), was submitted to the Governments for comment. The comments of the Governments, and those submitted by the Union of the Industries of the European Community, the Permanent Co~ference of Chambers of Commerce and Industry of the EEC, the Banking Federation of the EEC, the Consultative Committee of the Barristers' and Lawyers ' Associations of the six EEC countries (a committee of the International Association of Lawyers), were studied by the Committee at its meeting of 5 to 15 July 1966. The draft Convention was finally adopted by the experts at that meeting. The names of the governmental experts who took part in the work of the committee are set out in the annex to this report.
It is helpful to consider, first, the rules in each of the six countries governing the recognition and enforcement of foreign judgments.
In Belgium, until the entry into force of the Judicial Code (Code Judiciaire), the relevant provisions as ...
.... regards enforcement are to be found in Article 10 of the Law of 25 March 1876, which contains Title I of the Introductory Book of the Code of Civil Procedure [1]. Where there is no reciprocal convention, a court seised of an application for an order for enforcement 'has jurisdiction over a foreign judgment as to both form and substance, and can re-examine both the facts and the law. In other words, it has power to review the matter fully [2] [3]. As regards recognition, text-book authorities and case-law draw a distinction between foreign judgments relating to status and legal capacity and those relating to other matters. The position at present is that foreign judgments not relating to the status and legal capacity of persons are not regarded by the courts as having the force of res judicata. However, foreign judgments relating to a person status or legal capacity may be taken as evidence of the status acquired by that person [4]. Such foreign judgment thus acts as a bar to any new proceedings for divorce or separation filed before a Belgian court if the five conditions listed in Article 10 of the Law of 1876 are fulfilled, as they ' constitute no more than the application to foreign judgments of rules which the legislature considers essential for any judgment to be valid' . In the Federal Republic of Germany, foreign judgments are recognized and enforced on the basis of reciprocity (5). The conditions for recognition of foreign judgments are laid down in paragraph 328 of the Code of Civil Procedure (Zivilprozessordnung): I. A judgment given by a foreign court may not be recognized: 1. where the courts of the State to which the foreign court belongs have no jurisdiction under German law; 2. where the unsuccessful defendant is German and has not entered an appearance, if the document instituting the proceedings was not served on him in person either in the State to which the court belongs, or by a German authority under the system of mutual assistance in judicial matters; 3. where, to the detriment of the German party, the judgment has not complied with the provisions of Article 13 (1) and (3)or Articles 17, 18 , and 22 of the Introductory Law to the Civil Code . (Einfuhrungsgesetz zum Burgerlichen Gesetzbuch), or with the provisions of Article 27 of that Law which refer to Article 13 (1), nor where, in matters falling within the scope of Article 12 (3) of the Law of 4 July 1939 on disappearances certifications of death, and establishment of the date of decease (RGBI. I, p. 1186), there has been a failure to comply with the provisions of Article 13 (2) of the Introductory Law to the Civil Code, to the ....
end of page Official Journal of the European Communities No C 59/4 (05-03-1979) ... detriment of the wife of a foreigner who has been declared dead by judgment of the court [1]; 4. where recognition of the judgment would be contrary to 'good morals' (gegen die guten Sitten) or the objectives of a German law; 5. where there is no guarantee of reciprocity. II. The provision in (5) above shall not prevent recognition of a judgment given in a matter not relating to property rights where no court in Germany has jurisdiction under German law.' The procedure for recognizing judgments delivered in actions relating to matrimonial matters is governed by a special Law (Familienrechtsanderungsgesetz) of August 1961 (BGBI. I, p. 1221 , Article 7). Enforcement is governed by Articles 722 and 723 of the Code of Civil Procedure, which read as follows: Article 722 I. A foreign judgment may be enforced only where this is authorized by virtue of an order for enforcement. II. An application for an order for enforcement shall be heard either by the Amtsgericht or the Landgericht having general jurisdiction in relation to the defendant, or otherwise by the Amtsgericht or the Landgericht before which the defendant may be summoned under Article 23. Article 723 I. An order for enforcement shall be granted without re-examination of the substance of the judgment. II. An order for enforcement shall be granted only if the foreign judgment has become res judicata under the law of the court in which it was given. No order for enforcement shall be granted where recognition of the judgment is excluded by Article 328.' In France, Article 546 of the Code of Civil Procedure (Code de procedure civile) provides that judgments given by foreign courts and instruments recorded by foreign officials can be enforced only after being declared enforceable by a French court (Articles 2123 and 2128 of the Civil Code). The courts have held that four conditions must be satisfied for an order for enforcement to be granted: the foreign court must have had jurisdiction; the procedure followed must have been in order; the law applied must have been that which is applicable under the French system of conflict of laws; and due regard must have been paid to public policy [2]. The Cour de cassation recently held (Cass. civ. 1 Section, 7 January 1964 Munzer case) that the substance of the original action could not be reviewed by the court hearing the application for an order for enforcement. This judgment has since been followed. In Italy, on the other hand, the Code of Civil Procedure (Codice di procedura civile) in principle allows foreign judgments to be recognized and enforced. Under Article 796 of the Code of Civil Procedure, any foreign judgment may be declared enforceable in Italy by the Court of Appeal (Corte d' appello) for the place in which enforcement is to take place (Dichiarazione di efficacia) . Under Article 797 of the Code of Civil Procedure, the Court of Appeal examines whether the foreign judgment was given by a judicial authority having jurisdiction under the rules in force in Italy; whether in the proceedings abroad the document instituting the proceedings was properly served and whether sufficient notice was given; whether the parties properly entered an appearance in the proceedings or whether their default was duly recognized; whether the judgment has become res judicata; whether the judgment conflicts with a judgment given by an Italian judicial authority; whether proceedings between the same parties and concerning the same claim are pending before an Italian judicial authority; and whether the judgment contains anything contrary to Italian public policy. However, if the defendant failed to appear in the foreign proceedings, he may request the Italian court to review the substance of the case (Article 798). In such a case, the Court may either order enforcement, or 'hear the substance of the case and give judgment.
There is also in Italian law the ' delibazione incidentale (Article 799 of the Code of Civil Procedure) which, however, applies only to proceedings in which it sought to invoke a foreign judgment. Luxembourg. Under Article 546 of the Luxembourg Code of Civil Procedure (Code de procedure civile), judgments given by foreign courts and instruments recorded by foreign officials can be enforced in the Grand Duchy only after being declared enforceable by a Luxembourg court (see Articles 2123 and 2128 of the Civil Code). Luxembourg law requires seven conditions to be satisfied before an order for enforcement can be granted: the judgment must be enforceable in the country in which it was given; the foreign court must have had jurisdiction; the law applied must have been that applicable under the Luxembourg rules of conflict of laws; the rules of procedure of the foreign law must have been observed; the rights of the defendant must have been observed; due regard must have been paid to public policy; the law must not have been contravened (Luxembourg, 5.2.64, Pasicrisie luxembourgeoise XIX 285). Luxembourg law no longer permits any review of a foreign judgment as to the merits. In the Netherlands, the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) lays down the principle that judgments of foreign courts are not enforceable in the Kingdom. Matters settled by foreign courts may be reconsidered by Netherlands courts (see Article 431 of the Code of Civil Procedure). The national laws of the Member States thus vary considerably. Apart from conventions dealing with particular matters (see p. 10), various conventions on enforcement exist between the Six; they are listed in Article 55 of the Convention. However, relations between France and the Federal Republic of Germany, France and the Netherlands, France and Luxembourg, Germany and Luxembourg, and Luxembourg and Italy are hampered by the absence of such conventions [1]. There are also striking differences between the various conventions. Some, like those between France and Belgium, and between Belgium and the Netherlands and the Benelux;, Treaty, are based on ' direct jurisdiction; but all the others are based on ' indirect jurisdiction. The Convention between France and Italy is based on indirect jurisdiction, but nevertheless contains some rules of direct jurisdiction. Some conventions allow only those judgments which have becom res judicata to be recognized and enforced whilst others such as the Benelux Treaty and the Conventions between Belgium and the Netherlands Germany and Belgium, Italy and Belgium and Germany and the Netherlands apply to judgments which are capable of enforcement [2]. Some cover judgments given in civil matters by criminal courts, whilst others are silent on this point or expressly exclude such judgments from their scope (Conventions between Italy and the Netherlands, Article 10, and between Germany and Italy, Article 12). There are various other differences between these treaties and conventions which need not be discussed in detail; they relate in particular to the determination of competent courts and to the conditions governing recognition and enforcement. It should moreover be stressed that these conventions either do not lay down the enforcement procedure or give only a summary outline of it. The present unsatisfactory state of affairs as regards the recognition and enforcement of judgments could have been improved by the conclusion of new bilateral conventions between Member States not yet bound by such conventions.
However, the Committee has decided in favour of the conclusion of a multilateral convention between the countries of the European Economic Community, in accordance with the views expressed in the Commission letter of 22 October 1959. The Committee felt that the differences between the bilateral conventions would hinder the ' free movement' of judgments and lead to unequal treatment of the various nationals of the Member States, such inequality being contrary to the fundamental EEC prinj:iple of non-discrimination, set out, in particular, in Article 7 of the Treaty of Rome. In addition, the European Economic Community provided the conditions necessary for a modern, liberal law on the recognition and enforcement of judgments which would satisfy both legal and commercial Interests. Some of the bilateral conventions concluded between the Member States, such as the Convention between France and Belgium of 8 July 1899, the Convention between Belgium and the Netherlands of 28 March 1925 , and the Benelux Treaty of 24 November 1961 are based on rules of direct jurisdiction, whilst in the others the rules of jurisdiction are indirect. Under conventions of the first type known also as ' double treaties , the rules of jurisdiction laid down are applicable in the State of origin, i.e. the State in which the proceedings originally took place; they therefore apply independently of any proceedings for recognition and enforcement, and permit a defendant who is summoned before a court which under the convention in question would not have jurisdiction to refuse to accept its jurisdiction. Rules of jurisdiction in a convention are said to be indirect' when they do not affect the courts of the State in which the judgment was originally given, and are to be considered only in relation to recognition and enforcement. They apply only in determining cases in which the court of the State in which recognition or enforcement of a judgment is sought (the State addressed) is obliged to recognize the jurisdiction of the court of the State of origin. They can therefore be taken as conditions governing the recognition and enforcement of foreign judgments and more specifically, governing supervision of the jurisdiction foreign courts. The Committee spent a long time considering which of these types of convention the EEC should have. It eventually decided in favour of a new system based on direct jurisdiction but differing in several respects from existing bilateral conventions of that type. Although the Committee of experts did not underestimate the value and importance of ' single conventions, (i. e. conventions based on rules of indirect jurisdiction) it felt that within the EEC a convention based on rules of direct jurisdiction as a result of the adoption of common rules of jurisdiction would allow increased harmonization of laws, provide greater legal certainty, avoid discrimination and facilitate the ' free movement' of judgments , which is after all the ultimate objective. Conventions based on direct jurisdiction lay down common rules of jursidiction, thus bringing about the harmonization of laws, whereas under those based on indirect jurisdiction, national provisions apply, without restriction, in determining international jurisdiction in each State. Legal certainty is most effectively secured by conventions based on direct jurisdiction since, under them, judgments are given by courts deriving their jurisdiction from the conventions themselves; however in the case of conventions based on indirect jurisdiction certain judgments cannot be recognized and enforced abroad unless national rules of jurisdiction coincide with the rules of the convention [1]. Moreover, since it establishes, on the basis of mutual agreement, an autonomous system of international jurisdiction in relations between the Member States, the Convention makes it easier to abandon certain rules of jurisdiction which are generally regarded as exorbitant. Finally, by setting out rules of jurisdiction which may be relied upon as soon as proceedings are begun in the State of origin, the Convention regulates the problem of lis pendens and also helps to minimize the conditions governing recognition and enforcement.
As already stated, the Convention is based on direct jurisdiction, but differs fundamentally from treaties and conventions of the same type previously concluded. This is not the place to undertake a detailed study of the differences, or to justify them; it will suffice merely to list them: 1. the criterion of domicile replaces that of nationality; In addition, the Convention is original in that:
The scope of the Convention is determined by the preamble and Article 1. It governs international legal relationships, applies automatically, and covers all civil and commercial matters, apart from certain exceptions which are exhaustively listed. As is stressed in the fourth paragraph of the preamble, the Convention determines the international jurisdiction of the courts of the Contracting States. It alters the rules of jurisdiction in force in each Contracting State only where an international element is involved. It does not define this concept, since the international element in a legal relationship may depend on the particular facts of the proceedings of which the court is seised. Proceedings instituted in the courts of a Contracting State which involves only persons domiciled in that State will not normally be affected by the Convention; Article 2 simply refers matters back to the rules of jurisdiction in force in that State. It is possible, however, that an international element may be involved in proceedings of this type. This would be the case, for example, where the defendant was a foreign national, a situation in which the principle of equality of treatment laid down in the second paragraph of Article 2 would apply, or where the proceedings related to a matter over which the courts of another State had exclusive jurisdiction (Article 16), or where identical or related proceedings had been brought in the courts of another State (Article 21 to 23). It is clear that at the recognition and enforcement stage the Convention governs only international legal relationships since ex hypothesi it concerns the recognition and enforcement in one Contracting State of judgments given in another Contracting State [1].
It was decided by the committee of experts that the Convention should apply automatically. This principle is formally laid down in Articles 19 and 20 which deal with the matter of examination by the courts of the Contracting States of their international jurisdiction. The courts must apply the rules of the Convention whether or not they are pleaded by the parties. It follows from this, for example, that if a person domiciled in Belgium is sued in a French court on the basis of Article 14 of the French Civil Code, and contests the jurisdiction of that court but without pleading the provisions of the Convention, the court ...
end of page Official Journal of the European Communities No C 59/8 (05-03-1979) ... must nevertheless apply Article 3 and declare that it has no jurisdiction (1).
The Committee did not specify what is meant by ' civil and commercial matters , nor did it point to a solution of the problem of classification by determining the law according to which that expression should be interpreted. In this respect it followed the practice of existing conventions [2]. However, it follows from 'the text of the Convention that civil and commercial matters are to be classified as such according to their nature, and irrespective of the character of the court or tribunal which is seised of the proceedings or which has given judgment. This emerges from Article 1, which provides that the Convention shall apply in civil and commercial matters ' whatever the nature of the court or tribunal'. The Convention also applies irrespective of whether the proceedings are contentious or non-contentious. It likewise applies to labour law in so far as this is regarded as a civil or commercial matter (see also under contracts of employment, page 24). The Convention covers civil proceedings brought before criminal courts, both as regards decisions relating to jurisdiction, and also as regards the recognition and enforcement of judgments given by criminal courts in such proceedings. It thereby takes into account certain laws in force in the majority of the Contracting States [3], tends to rule out any differences of interpretation such as have arisen in applying the Convention between Belgium and the Netherlands [4] and, finally, meets current requirements arising from the increased number of road accidents. The relevant provisions of the treaty and conventions already concluded between the Member States vary widely, as has already been pointed out in Chapter I (A). The formula adopted by the Committee reflects the current trend in favour of inserting in conventions clauses specifying that they apply to judgments given in civil or commercial matters by criminal courts. This can in particular be seen in the Benelux Treaty of 24 November 1961 and in the work of the Hague Conference on private international law. It should be noted that the provisions of Article 5 (4) of the Convention in no way alter the penal jurisdiction of criminal courts and tribunals as laid down in the various codes of criminal procedure. As regards both jurisdiction and recognition and enforcement the Convention affects only civil proceedings of which those courts are seised, and judgments given in such proceedings. However, in order to counter the objection that a party against whom civil proceedings have been brought might be obstructed in conducting his defence criminal sanctions could be imposed on him in the same proceedings, the Committee decided on a solution identical to that adopted in the Benelux Treaty. Article II of the Protocol provides that such persons may be defended or represented in criminal courts. Thus they will not be obliged to appear in person to defend their civil interests. The Convention also applies to civil or commercial matters brought before administrative tribunals. The formula adopted by the Committee is identical to that envisaged by the Commission which was given the task at the fourth session of the Hague Conference on private international law of examining the Convention of 14 November 1896 in order to draw up common rules on a number of aspects of private international law relating to civil procedure. It reported as follows: The expression "civil or commercial matters” is very wide and does not include only those matters which fall within the jurisdiction of civil tribunals and commercial tribunals in countries where administrative tribunals also exist. Otherwise there would be a wholly unjustifiable inequality between the Contracting States: service abroad of judicial ...
... instruments could take place on a wider scale for countries which do not have administrative tribunals than for countries which have them. In brief, the Convention is applicable from the moment when private interests become involved . . .' [1] Thus, for example, decisions of the French Conseil Etat given on such matters may be recognized and enforced [2].
The ideal solution would certainly have been to apply the Convention to all civil and commercial matters. However, the Committee did not feel able to adopt this approach, and limited the scope of the Convention to matters relating to property rights for reasons similar to those which prevailed when the Hague Convention on the recognition and enforcement of foreign judgments in civil and commercial matters was drafted, the main reason being the difficulties resulting from the absence of any overall solution to the problem of conflict of laws. The disparity between rules of conflict of laws is particularly apparent in respect of matters not relating to property rights, since in general the intention of the parties cannot regulate matters independently of considerations of public policy. The Committee, like the Hague Conference on private international law, preferred a formula which excluded certain matters to one which would have involved giving a positive definition of the scope of the Convention. The solution adopted implies that all litigation and all judgments relating to contractual or non-contractual obligations which do not involve the status or legal capacity of natural persons, wills or succession rights in property arising out of matrimonial relationship, bankruptcy or social security must fall within the scope of the Convention, and that in this respect the Convention should be interpreted as widely as possible. However, matters falling outside the scope of the Convention do so only if they constitute the principal subject-matter of the proceedings. They are thus not excluded when they come before the court as a subsidiary matter either in the main proceedings or in preliminary proceedings [3]. Apart from the desirability of bringing the Convention into force as soon as possible, the Committee was influenced by the following considerations. Even assuming that the Committee managed to unify the rules of jurisdiction in this field, and whatever the nature of the rules selected, there was such disparity on these matters between the various systems of law, in particular regarding the rules of conflict of laws , that it would have been difficult not to re-examine the rules of jurisdiction at the enforcement stage. This in turn would have meant changing the nature of the Convention and making it much less effective. In addition, if the Committee had agreed to withdraw from the court enforcement all powers of examination, even in matters not relating to property rights, that court would surely have been encouraged to abuse the notion of public policy, using it to refuse recognition to foreign judgments referred to it. The members of the Committee chose the lesser of the two evils, retaining the unity and effectiveness of their draft while restricting its scope. The most serious difficulty with regard to status and legal capacity is obviously that divorce, a problem which is complicated by the extreme divergences between the various systems of law: Italian law prohibits divorce, while Belgian law not only provides for divorce by consent (Articles 223 , 275 seq. of the Civil Code), which is unknown under the other legal systems apart from that of Luxembourg, but also, by the Law of 27 June 1960 on the admissibility of divorce when at least one of the spouses is a foreign national, incorporates provisions governing divorces by foreign nationals who ordinarily reside in Belgium. The wording used 'status or legal capacity of natural Persons’, differs slightly from that adopted in the Hague Convention, which excludes from its scope judgments concerning 'the status or capacity of persons or questions of family law, including personal or financial rights and obligations between parents and children or between spouses' (Article 1 (1)). The reason for this is twofold. Firstly, family law in the six Member States of the Community is not a concept distinct from questions of status or capacity; secondly, the EEC Convention unlike the Hague Convention, applies to maintenance (Article 5 (2)) even where the obligation stems from the status of the persons and irrespective of whether rights ...
... and duties between spouses or between parents and children are involved. (Jenard, Pb 1968, C 59/10-11) Moreover in order to avoid differences of interpretation, Article 1 specificies that the Convention does not apply to the status or legal capacity of natural persons, thereby constituting a further distinction between this Convention and the Hague Convention which specifies that it does not apply to judgments dealing principally with ' the existence or constitution of legal persons or the powers of their organs' (Article 1 (2) third indent). With regard to matters relating to succession, the Committee concurred in the opinion of the International Union of Latin Notaries. This body, when consulted by the Committee considered that it was necessary, and would become increasingly so as the EEC developed in the future, to facilitate the recognition and enforcement of judgments given in matters relating to succession, and that it was therefore desirable for the six Member States to conclude a convention on the subject. However, the Union considered that it was essential first to unify the rules of conflict of laws. As is pointed out in the Memorandum of the Permanent Bureau of the Hague Conference on private international law [1] from which this commentary has been taken, there are fairly marked differences between the various States on matters of succession and of rights in property arising out of a matrimonial relationship. 1. As regards succession, some systems of law make provision for a portion of the estate to devolve compulsorily upon the heirs, whereas others do not. The share allocated to the surviving spouse (a question which gives rise to the greatest number of proceedings in matters of succession because of the clash of interests involved) differs enormously from country to country. Some countries place the spouse on the same footing as a surviving child, or grant him or her a certain reserved portion (Italy), while others grant the spouse only a limited life interest (for example, Belgium). The disparities as regards rules of conflict of laws are equally marked. Some States (Germany, Italy and the Netherlands) apply to succession the national law of the de CUjllS; others (Belgium and France) refer succession to the law of the domicile as regards movable property and, as regards immovable property, to the law of the place where the property is situated; or (as in Luxembourg) refer to the law of the place where the property is situated in the case of immovable property, but subject movable property to national law. 2. As regards rights in property arising out of matrimonial relationship, the divergences between the legal - systems are even greater, ranging from joint ownership of all property (Netherlands) through joint ownership of movable property and all property acquired during wedlock (France, Belgium and Luxembourg) or joint ownership of the increase in capital value of assets (Federal Republic of Germany) to the complete separation of property (Italy). There are also very marked divergences between the rules of conflict of laws, and this provokes positive conflicts between the systems. In some States the rules governing matrimonial property, whether laid down by law or agreed between the parties, are subject to the national law of the husband (Germany, Italy and the Netherlands); in the other States (Belgium, France, and Luxembourg) matrimonial property is subject to the rules impliedly chosen by the spouses at the time of their marriage. Unlike the preliminary draft the Convention does not expressly exclude gifts from its scope. In this respect follows the Hague Convention, though gifts will of course be excluded in so far as they relate to succession. However, the Committee was of the opinion that there might possibly be grounds for resuming discussion of these problems after the Judgments Convention had entered into force, depending on the results of the work currently being done by the Hague Conference and by the International Commission on Civil Status. It should be stressed that these matters will still be governed, temporarily at least, by existing bilateral conventions, in so far as these conventions apply (see Article 56). Bankruptcy is also excluded from the scope of this Convention. A separate Convention is currently being drafted, since the peculiarities of this branch of law require special rules. Article 1 (2) excludes bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons judicial arrangements compositions and analogous proceedings, i. e. those proceedings which ...
... depending on the system of law involved, are based on the suspension of payments, the insolvency of the debtor or his inability to raise credit, and which involve the judicial authorities for the purpose either compulsory and collective liquidation of the assets or simply of supervision. Thus the Convention will cover proceedings arising from schemes of arrangement out of court, since the latter depend on the intention of the parties and are of purely contractual nature. The insolvency of non-trader (deconfiture civile) under French law, which does not involve organized and collective proceedings cannot be regarded as falling within the category analogous proceedings' within the meaning of Article 1 [1]. Proceedings relating to a bankruptcy are not necessarily excluded from the Convention. Only proceedings arising directly from the bankruptcy (1) and hence falling within the scope of the Bankruptcy Convention of the European Economic Community are excluded from the scope of the Convention [2]. Pending the conclusion of the separate Convention covering bankruptcy, proceedings arising directly from bankruptcy will be governed by the legal rules currently in force, or by the conventions which already exist between certain Contracting States, as provided in Article 56 [3]. The Committee decided, like the Hague Conference [4] to exclude social security from the scope of the Convention. The reasons were as follows. In some countries, such as the Federal Republic of Germany, social security is a matter of public law, and in others it falls in the borderline area between private law and public law. In some States, litigation on social security matters falls within the jurisdiction of the ordinary courts, but in others it falls within the jurisdiction of administrative tribunals; sometimes it lies within the jurisdiction both [5] . The Committee was moreover anxious to allow current work within the EEC pursuant to Articles 51 , 117 and 118 of the Treaty of Rome to develop independently, and to prevent any overlapping on matters of social security between the Convention and agreements already concluded, whether bilaterally or under the auspices of other international organizations such as the International Labour Organization or the Council Europe. Social security has not in fact hitherto given rise conflicts of jurisdiction, since judicial jurisdiction has been taken as coinciding with legislative jurisdiction which is determined by Community regulations adopted pursuant to Article 51 of the Treaty of Rome; however the recovery of contributions due to social security bodies still raises problems of enforcement. This matter should therefore be the subject of a special agreement between the Six.
Since this is a field which is in a state of constant development, it did not seem desirable to define it expressly in the Convention, nor even to indicate in an annex what this concept covers, especially as Article 117 of the Treaty of Rome states that one of the Community s objectives is the harmonization of social security systems. Nevertheless, it should be pointed out that in the six countries benefits are paid in the circumstances listed in Convention No 102 of the International Labour Organization on minimum standards of social security, namely: medical care, sickness benefits , maternity allowances, invalidity benefits, old age and survivors pensions benefits for accidents at work and occupational diseases family allowances and unemployment benefits [6]. It may also be useful to refer ...
end of page: Official Journal of the European Communities No C 59/12 (05-03-1979) ... to the definition given in Articles 1 (c) and 2 of Council Regulation No 3 on social security for migrant workers which, moreover, corresponds to that laid down in Convention No 102 of the ILO. However, the litigation on social security which is excluded from the scope of the Convention is confined to disputes arising from relationships between the administrative authorities concerned and employers or employees. On the other hand, the Convention applicable when the authority concerned relies on a right of direct recourse against a third party responsible for injury or damage, or is subrogated as against a third party to the rights of an injured party insured by it since, in doing so, it is acting in accordance with the ordinary legal rules [1]. There are already many international agreements on arbitration. Arbitration is, of course, referred to in Article 220 of the Treaty of Rome. Moreover, the Council of Europe has prepared a European Convention providing a uniform law on arbitration, and this will probably be accompanied by a Protocol which will facilitate the recognition and enforcement of arbitral awards to an even greater extent than the New York Convention. This is why it seemed preferable to exclude arbitration. The Brussels Convention does not apply to the recognition and enforcement of arbitral awards (see the definition in Article 25); it does not apply for the purpose of determining the jurisdiction of courts and tribunals in respect of litigation relating to arbitration for example, proceedings to set aside an arbitral award; and, finally, it does not apply to the recognition of judgments given in such proceedings. Underlying the Convention is the idea that the Member States of the European Economic Community 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 Contracting 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, Title II of the Convention makes a fundamental distinction particular in Section 1, between defendants who are domiciled in a Contracting State and those who are domiciled elsewhere. 1. If a person is domiciled in a Contracting 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). 2. If a person is domiciled in a Contracting State, he may be sued in the courts of another Contracting State only if the courts of that State are competent by virtue of the Convention (Article 3). 3. If a person is not domiciled in a Contracting State that is, if he is domiciled outside the Community, the rules of jurisdiction in force in each Contracting State, including those regarded as exorbitant, are applicable (Article 4). The instances in which a person domiciled in a Contracting State may be sued in the courts of another Contracting State or must be so sued, in cases of exclusive jurisdiction or prorogation of jurisdiction are set out in Sections 2 to 6. Section 7, entitled 'Examination as to jurisdiction and admissibility', is mainly concerned with safeguarding the rights of the defendant. Section 8 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 9 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 Convention, that court does not have jurisdiction over the substance of the matter.
The far-reaching nature of the Convention may at first seem surprising. The rules of jurisdiction which it lays down differ fundamentally from those of bilateral conventions which are based on direct jurisdiction (the Conventions between France and Belgium, and between Belgium and the Netherlands, the Benelux Treaty, the Convention between France and Switzerland) and apply not only to nationals of the Contracting States but also to any person, whatever his nationality, who domiciled in one of those States. The radical nature of the Convention may not only evoke surprise but also give rise to the objection that the Committee has gone beyond its terms of reference, since Article 220 of the Treaty of Rome provides that States should enter into negotiations with a view to securing for the benefit of their nationals' the simplification of formalities governing the recognition and enforcement of judgments. The obvious answer to this is that the extension of the scope of the Convention certainly does not represent a departure from the Treaty of Rome provided the Convention ensures, for the benefit of nationals, the simplification of formalities governing the recognition and enforcement of judgments. Too strict an interpretation of the Treaty of Rome would moreover, have led to the Convention providing for the recognition and enforcement only of those judgments given in favour of nationals of the Contracting States. Such a limitation would have considerably reduced the scope of the Convention, which would in this regard have been less effective than existing bilateral conventions. There are several reasons for widening the scope of the Convention by extending in particular the rules of jurisdiction under Title II to all persons, whatever their nationality, who are domiciled in a Contracting State. First, it would be a retrograde step if common rules of jurisdiction were to be dependent on the nationality. the parties; the connecting factor in international procedure is usually the domicile or residence of the parties (see, for example, Article 3 (1) and (2) of the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children; the Hague Convention of 15 April 1958 on the jurisdiction of the contractual forum in matters relating to the international sale of goods; Article 11 of the Benelux Treaty; and Article 10 (1) of the Hague Convention on the recognition and enforcement of foreign judgments in civil and commercial matters). Next, the adoption of common rules based on nationality would have caused numerous difficulties in applying the Convention. This method would have necessitated the introduction of different rules of jurisdiction depending on whether the litigation involved nationals of Contracting States, a national of a Contracting State and a foreign national, or two foreign nationals. In some situations the rules of jurisdiction of the Convention would have had to be applied; in others national rules of jurisdiction. Under this system the court would, at the commencement of proceedings automatically have had to carry out an examination the nationality of the parties , and it is not difficult to imagine the practical problems involved in , for example, establishing the nationality of a defendant who has failed to enter an appearance. If the Convention had adopted the nationality of the parties as a connecting factor, it might well have been necessary to introduce a special provision to deal with the relatively frequent cases of dual nationality. The Convention would thus have had to solve many problems which do not strictly speaking fall within its scope. Using nationality as a criterion would inevitably have led to a considerable increase in the effect of those rules of jurisdiction which may be termed exorbitant. Thus, for example, a judgment given in France or Luxembourg on the basis of Article 14 of the Civil Code in an action between a national of France or Luxembourg and a national of a non-Member State of the Community would have had to be recognized and enforced in Germany even if the foreign national was domiciled in Germany and a generally recognized jurisdiction, that of the defendant s domicile, thus existed. By ruling out the criterion of nationality, the Committee is anxious not only to simplify the application of the Convention by giving it a unity which allows a uniform interpretation, but also, in fairness, to allow foreign nationals domiciled in the Community, who are established there and who thereby contribute to its ...
... economic activity and prosperity, to benefit from the provisions of the Convention. Moreover, the purpose of the Convention is also, by establishing common rules of jurisdiction, to achieve, in relations between the Six and in the field which it was required to cover, a genuine legal systematization which will ensure the greatest possible degree of legal certainty. To this end, the rules of jurisdiction codified in Title II determine which State s courts are most appropriate to assume jurisdiction, taking into account all relevant matters; the approach here adopted means that the nationality of the parties is no longer of importance. As already shown, the rules of jurisdiction are based on the defendant's domicile. Determining that domicile is therefore a matter of the greatest importance. The Committee was faced with numerous questions which proved difficult to resolve. Should the Convention include a common definition of domicile? Should domicile possibly be replaced by the concept of habitual residence? Should both domicile and habitual residence be used? Should the term domicile be qualified? 1. Should the Convention include a common definition of domicile? The first point to note is that the concept of domicile is not defined in the Conventions between France and Belgium, Belgium and the Netherlands Germany and Belgium, and Italy and Belgium, nor in the Benelux Treaty. It is, however, defined in the Conventions between France and Italy (Article 28), between Italy and the Netherlands (Article 11), and between Germany and Italy (Article 13); but these Conventions are all based on indirect jurisdiction. At first, the Committee thought of defining domicile in the Convention itself, but it finally rejected this course of action. Such a definition would have fallen outside the scope of the Convention, and properly belongs in a uniform law [1]. Moreover, such definitions run the risk of being superseded by developments in national law.
This course was similarly rejected. It was pointed out that the term ' habitual' was open to conflicting interpretations, since the laws of some of the Member States provide that an entry in the population registers is conclusive proof of habitual residence. The adoption of this course would, moreover represent a divergence from that followed under the laws of the Contracting States, the majority of which use domicile as a basis of jurisdiction [2].
Adopting habitual residence as the sole criterion would have raised new problems as regards jurisdiction over persons whose domicile depends or may depend on that of another person or on the location of an authority (e.g. minors or married women). Finally, in a treaty based on direct jurisdiction, it is particularly important that jurisdiction should have secure legal basis for the court seised of the matter. The concept of domicile, while not without drawbacks, does however introduce the idea of a more fixed and stable place of establishment on the part of the defendant than does the concept of habitual residence.
In a treaty based on direct jurisdiction , the inclusion of both criteria would result in the major disadvantage that the number of competent courts would be increased. If the domicile and the place of habitual residence happened to be in different States, national rules of jurisdiction of both the States concerned would be applicable by virtue of Article 2 of the Convention, thus defeating the object of the Convention. Moreover, the inclusion of both criteria could increase the number of cases of lis pendens and related actions. For these reasons the Committee preferred finally to adopt only the concept of domicile.
In view of the varied interpretations of the concept of domicile, the Committee considered that the implementation of the Convention would be facilitated by the inclusion of a provision specifying the law to be applied in determining domicile. The absence of such a provision might give rise to claims and disclaimers of jurisdiction; the purpose of Article 52 is to avoid this. Article 52 deals with three different situations: Article 52 does not deal with the case of a person domiciled outside the Community. In this case the court seised of the matter must apply its rules of private international law. Nor does Article 52 attempt to resolve the conflicts which might arise if a court seised of a matter ruled that a defendant were to be considered as having his domicile in two other Contracting States, or in one Contracting State and a third country. According to the basic principles of Title II the court, having found that a person is domiciled in some other Contracting State, must, in order to determine its own jurisdictiont apply the rules set out in Article 3 and in Sections 2 to 6 of the Convention. In most disputed cases it will be necessary to determine where the defendant is domiciled. However, when applying certain provisions of the Convention, in particular Article 5 (2) and the first paragraph of Article 8 , the rules set out will be used to determine the plaintiff' s domicile. For this reason Article 52 does not. specify either the defendant or the plaintiff since, in the opinion of the Committee the same provisions for determining domicile must apply to both parties. Under the first paragraph of Article 52, only the internal law of the court seised of the matter can determine whether a domicile exists in that State. It follows that, if there is a conflict between the lex fori and the law of another Contracting State when determining the domicile of a party, the lex fori prevails. For example, if a defendant sued in a French court is domiciled both in France, because he has his principal place of business there, and in Belgium, because his name is entered there in the official population registers, where the laws conflict the French court must apply only French law. If it is established under that law that the defendant is in fact domiciled in France, the court need take other law into consideration. This is justified on various grounds. First, to take the example given, a defendant, by establishing his domicile in a given country, subjects himself to the law of that country. Next, only if the lex fori prevails can the court examine whether it has jurisdiction; as the Convention requires it to do, in cases where the defendant fails to enter an appearance (Article 20). Where the courts of different Contracting States are properly seised of a matter for example, the Belgian court because it is the court for the place where the defendant's name is entered in the population registers, and the French court because it ...
... is the court for the place where he has his principal place of business the conflict may be resolved by applying the rules governing /is pendens or related actions. The second paragraph covers the case of a defendant who is not domiciled in the State whose courts are seised of the matter. The court must then determine whether he is domiciled in another Contracting State, and to do this the internal law of that other State must be applied. This rule will be applied in particular where a defendant is sued in the courts of a Contracting State in which he is not domiciled. If the jurisdiction of the court is contested, then, following the basic principles of Title II, whether or not the court has jurisdiction will vary according to whether the defendant is domiciled in another Contracting State or outside the Community. Thus, for example, a person domiciled outside the Community may properly be sued in Belgium in the court for the place where the contract was concluded [1]. On the other hand, where the law of the State of the purported domicile has two definitions of domicile [2], that of the Civil Code and that of the Code of Civil Procedure, the latter should obviously be used since the problem is one of jurisdiction. The third principle laid down by Article 52 concerns persons such as minors or married women whose domicile depends on that of another person or on the seat of an authority. Under this provision national law is applied twice. For example, the national law of a minor first determines whether his domicile is dependent on that of another person. If it is, the national law of the minor similarly determines where that domicile is situated (e.g. where his guardian is domiciled). If however, the domicile of the dependent person is under his national law not dependent on that another person or on the seat of an authority, the first or second paragraph of Article 52 may be applied to determine the domicile of the dependent person. These two paragraphs also apply for the purpose of determining the domicile from which that of the dependent person derives. The members of the Committee were alive to the difficulties which may arise in the event of dual nationality, and more especially in determining the domicile of a married woman. For example, where a German woman marries a Frenchman an acquires French nationality while retaining her German ...
... nationality, her domicile under French law [1] is that of her husband, whereas under Getman law she can have a separate domicile, since German law no longer provides that a married woman has the domicile of her husband [2]. In cases of this kind the Committee considered that the usual rules relating to dual nationality should be applied. Thus even if she has a separate domicile in Germany, that person may be sued in France in the court for the husband' s domicile, since the French court must apply French law. If, however, she is sued Germany in the court for the place of her own domicile, the German court will apply German law and declare that it has jurisdiction. Finally, it should be made clear that the concept of domicile within the meaning of the Convention does not extend to the legal fiction of an address fur service of process.
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