| JENARD REPORT 1968
Section 1 sets out the main principles on which the rules of jurisdiction laid down by the Convention are founded: 1. the rule that a defendant domiciled in a Contracting State is in general to be sued in the courts of that State (Article 2); 2. the rule that a person domiciled in a Contracting State may in certain circumstances be sued in the courts of another Contracting State (Article 3); 3. the rule that a person domiciled outside the Community is subject to all applicable national rules of jurisdiction (Article 4). This Section also embodies the widely applied principle of equality of treatment [3], which is already enshrined in Article 1 of the Convention between France and Belgium of 8 July 1899, Article 1 of the Convention between Belgium and the Netherlands of 28 March 1925 and Article 1 of the Benelux Treaty of 24 November 1961. Whilst this principle thus forms an integral part of treaties based on direct jurisdiction, in this Convention it also ensures implementation of the mandatory rules of the Treaty of Rome. Article 7 of that Treaty lays down the principle of non-discrimination between nationals of Member States of the Community. Specific provisions applying the general principle set out in Article 7 of the Treaty of Rome to the right of establishment are laid down in Article 52 et seq. of that Treaty. During the preparation of the General Programme on establishment, the Economic and Social Committee of the European Communities drew particular attention to this aspect of the problem by requesting that equality of treatment as regards legal protection be achieved in full as quickly as possible. The 'maxim actor sequitur forum rei' which expresses the fact that law leans in favour of the defendant, is even more relevant in the international sphere than it is in national law [4]. It is more difficult, generally speaking, to defend oneself in the courts of a foreign country than in those of another town in the country where one is domiciled. A defendant domiciled in a Contracting State need not necessarily be sued in the court for the place where he is domiciled or has his seat. He may be sued in any court of the State where he is domiciled which has jurisdiction under the law of that State. As a result, if a defendant is sued in one of the courts of the State in which he is domiciled, the internal rules of jurisdiction of that State are fully applicable. Here the Convention requires the application of the national law of the court seised of the matter; the Convention determines whether the courts of the State in question have jurisdiction, and the law of that State in turn determines whether a particular court in that State has jurisdiction. This solution seems equitable since it is usual for a defendant domiciled in a State to be subject to the internal law of that State without it being ...
... necessary for the Convention to provide special rules for his protection. It is, moreover, an extremely practical solution because it means that in most cases the court will not have to take the Convention any further into consideration. Defendants are usually sued in the courts of the State in which they are domiciled. This is true of proceedings in which there is no international element. It is also true of proceedings with an international element in which, by application of the traditionally accepted 'maxim actor sequitur forum rei' the defendant is sued in the courts of the State of his domicile. The Convention does not therefore involve a general reversal of national rules of jurisdiction nor of the practice of judges and lawyers. In fact, judges and lawyers will need to take account of the changes effected by the Convention only in cases where a defendant is sued in a court of a State where he is not domiciled, or in one of the few cases in which the Convention has laid down common rules of exclusive jurisdiction. The second paragraph of Article 2 embodies the principle of equality of treatment where a foreigner is domiciled in the State of the forum. Such foreigner whether he is defendant or plaintiff, is governed in that State by the same rules of jurisdiction as its nationals, or more precisely, as its nationals who are domiciled in that State, where, as in Italy, the law of that State determines the jurisdiction of its courts according to whether the national concerned is domiciled in its territory. As a result, Article 52 of the Belgian Law of 25 March 1876 will no longer be applicable as such to foreigners domiciled in Belgium [1]. The positive aspect of equality of treatment is set out in the second paragraph of Article 4. Article 3 deals with those cases in which a defendant domiciled in a Contracting State may be sued in another Contracting State. This Article lays down the principle that a defendant may be sued otherwise than in the courts of the State where he is domiciled only in the cases expressly provided for in the Convention. The rule sets aside the rules of exorbitant jurisdiction in force in each of the Contracting States. However, these rules of jurisdiction are not totally excluded; they are excluded only in respect of persons who are domiciled in another Contracting State. Thus they remain in force with respect to persons who are not domiciled within the Community. The second paragraph of Article 3 prohibits the application of the most important and best known of the rules of exorbitant jurisdiction. While this paragraph is not absolutely essential it will nevertheless facilitate the application of certain provisions of the Convention (see, in particular, Article 59). The following are the rules of exorbitant jurisdiction in question in each of the States concerned. In Belgium: Articles 52, 52bis and 53 of the Law of 25 March 1876 which govern territorial jurisdiction in actions brought by Belgians [2] or by foreigners against foreigners before Belgian courts, and Article 15 of the Civil Code which corresponds to Article 15 of the French Civil Code. In Germany: The nationality of the parties does not in general affect the rules of jurisdiction. Article 23 of the Code of Civil Procedure lays down that, where no other German court has jurisdiction, actions relating to property instituted against a person who is not domiciled in the national territory come under the jurisdiction of the court for the place where the property or subject of the dispute is situated. German courts have in a number of cases given a very liberal interpretation to this provision, thereby leading some authors to state that Article 23 ' can be likened to Article 14 of the French Civil Code' [3] In France: 1. Article 14 of the Civil Code provides that any French plaintiff may sue a foreigner or another Frenchman in the French courts, even if there is no ...
end of page: No C 59/19 Official Journal of the European Communities (05-03-1979) ... connection between the cause of action and those courts. 2. Article 15 of the Civil Code provides that a Frenchman may always be sued in the French courts by a Frenchman or by a foreigner, and can even insist on this. Despite the fact that Articles 14 and 15 in terms refer only to contractual obligations, case law has extended their scope beyond contractual obligations to all actions whether or not relating to property rights. There are thus only two limitations to the general application of Articles 14 and 15: French courts are never competent to hear either actions in rem concerning immovable property situated abroad or actions concernIng proceedings for enforcement which is to take place abroad [1]. In Italy: 1. Article 2 of the Code of Civil Procedure provides that an agreement to substitute for the jurisdiction of Italian courts the jurisdiction of a foreign court or arbitral tribunal will be valid only in the case of litigation between foreigners, or between a foreigner and an Italian citizen who is neither resident nor domiciled in Italy, and only if the agreement evidenced in writing. 2. (a) Under Article 4 (1) of the Code of Civil Procedure, a foreigner may be sued in an Italian court if he is resident or domiciled in Italy, or if he has an address for service there or has a representative who is authorized to bring legal proceedings in his name, or if he has accepted Italian jurisdiction unless the proceedings concern immovable property situated abroad. (b) Under Article 4 (2) of the Code of Civil Procedure, a foreigner may be sued in the courts of the Italian Republic if the proceedings concern property situated in Italy, or succession to the estate of an Italian national, or an application for probate made in Italy, or obligations which arose in Italy or which must be performed there. 3. The interpretation given to Article 4 by Italian case law means that an Italian defendant may always be sued in the Italian courts [2]. In Luxemburg: Articles 14 and 15 of the Civil Code correspond to Articles 14 and 15 of the French Civil Code. Luxembourg case law applies the same principles of interpretation as French case law. In the Netherlands: Article 126 (3) of the Code of Civil Procedure provides that, in personal matters or matters concerning movable property, a defendant who has no known domicile or residence in the Kingdom shall be sued in the court for the domicile of the plaintiff. This provision applies whether or not the plaintiff is a Netherlands national [3]. Article 127 provides that a foreigner, even if he does not reside in the Netherlands, may be sued in a Netherlands court for the performance of obligations contracted towards a Netherlander either in the Netherlands or abroad. Article 4 applies to all proceedings in which the defendant is not domiciled in a Contracting State, and provides that the rules of internal law remain in force. This is justified on two grounds: First, in order to ensure the free movement of judgments, this Article prevents refusal of recognition or enforcement of a judgment given on the basis of rules of internal law relating to jurisdiction. In the absence of such a provision, a judgment debtor would be able to prevent execution being levied on his property simply by transferring it to a Community country other than that in which judgment was given. Secondly, this Article may perform a function in the case of lis pendens. Thus, for example, if a French court is seised of an action between a Frenchman and a defendant domiciled in America, and a German court is ...
... seised of the same matter on the basis of Article 23 of the Code of Civil Procedure, one of the two courts must in the interests of the proper administration of justice decline jurisdiction in favour of the other. This issue cannot be settled unless the jurisdiction of these courts derives from the Convention. In the absence of an article such as Article 4, there would be no rule in the Convention expressly recognizing the jurisdiction of the French and German courts in a case of this kind. The only exception to the application of the rules of jurisdiction of internal law is the field of exclusive jurisdiction (Article 16) [1]. The rules which grant exclusive jurisdiction to the courts of a State are applicable whatever the domicile of the defendant. However, the question arises why the Committee did not extend the scope of the provision limiting the application of rules of exorbitant jurisdiction to include in particular nationals of Member States regardless of their place of domicile. In other words, and to take another example based on Article 14 of the French Civil Code, why will it still be possible for a French plaintiff to sue in the French courts a foreigner, or even a national of a Member State of the Community, who is domiciled outside the Community? The Committee thought that it would have been unreasonable to prevent the rules of exorbitant jurisdiction from applying to persons including Community nationals domiciled outside the Community. Thus, for example, a Belgian national domiciled outside the Community might own assets in the Netherlands. The Netherlands courts have jurisdiction in the matter since the Convention does not recognize jurisdiction based on the presence of assets within a State. If Article 14 of the French Civil Code could not be applied, a French plaintiff would have to sue the Belgian defendant in a court outside the Community, and the judgment could not be enforced in the Netherlands if there were no enforcement treaty between the Netherlands and the non-member State in which judgment was given. This, moreover, was the solution adopted in the Conventions between France and Belgium, and between Belgium and the Netherlands, and in the Benelux Treaty, which, however, take nationality as their criterion [2]. The second paragraph of Article 4 of the Convention constitutes a positive statement of the principle of equality of treatment already laid down in the second paragraph of Article 2. An express provision was considered necessary in order to avoid any uncertainty [3]. Under this provision, any person domiciled in a Contracting State has the right, as plaintiff, to avail himself in that State of the same rules of jurisdiction as a national of that State. This principle had already been expressly laid down in the Convention between France and Belgium of 8 July 1899 (Article 1 (2)). This positive aspect of the principle of equality of treatment was regarded as complementing the right of establishment (Article 52 et seq. of the Treaty of Rome), the existence of which implies, as was stated in the General Programme for the abolition of restrictions on freedom of establishment of 18 December 1961 [4], that any natural or legal person established in a Member State should enjoy the same legal protection as a national of that State. The provision is also justified on economic grounds. Since rules of exorbitant jurisdiction can still be invoked against foreigners domiciled outside the European Economic Community, persons who are domiciled in the Member State concerned and who thus contribute to the economic life of the Community should be able to invoke such rules in the same way as the nationals of that State. It may be thought surprising that the Convention extends the ' privileges of jurisdiction' in this way, since equality of treatment is granted in each of the States to all persons, whatever their nationality, who are domiciled in that State.
end of page: No C 59/21 Official Journal of the European Communities (05-03-1979) It should first be noted that such treatment is already granted to foreigners in Belgium, the Federal Republic of Germany, Italy and the Netherlands, where the rules of exorbitant jurisdiction may be invoked by foreigners as well as by nationals. The second paragraph of Article 4 therefore merely brings into line with these laws the French and Luxembourg concepts, according to which Article 14 of the Civil Code constitutes a privilege of nationality. Secondly, the solution adopted in the Convention follows quite naturally
from the fact that, for the reasons already given, the Convention uses
domicile as the criterion for determining jurisdiction. In this context
it must not be forgotten that it will no longer possible to invoke the
privileges of jurisdiction against persons domiciled in the Community,
although it will be possible to invoke them against nationals of the Community
countries who have established their domicile outside the territory of
the Six.
Articles 5 and 6 list the situations in which a defendant may be sued in a Contracting State other than that of his domicile. The forums provided for in these Articles supplement those which apply under Article 2. In the case of proceedings for which a court is specifically recognized as having jurisdiction under these Articles the plaintiff may, at his option, bring the proceedings either in that court or in the competent courts of the State in which the defendant is domiciled. One problem which arose here was whether it should always be possible to sue the defendant in one of the courts provided for in these Articles, or whether this should be allowed only if the jurisdiction of that court was also recognized by the internal law of the State concerned. In other words, in the first case, jurisdiction would derive directly from the Convention and in the second there would need to be dual jurisdiction: that of the Convention and that of the internal law on local jurisdiction. Thus, for example, where Netherlands law on jurisdiction does not recognize the court for the place of performance of the obligation, can the plaintiff nevertheless sue the defendant before that court in the Netherlands? In addition, would there be any obligation on the Netherlands to adapt its national laws in order to give that court jurisdiction? By adopting 'special' rules of jurisdiction , that is by directly designating the competent court without referring to the rules of jurisdiction in force 'in the State where such a court might be situated, the Committee decided that a plaintiff should always be able to sue a defendant in one of the forums provided for without having to take the internal law of the State concerned into consideration. Further, in laying down these rules the Committee intended to facilitate implementation of the Convention. By ratifying the Convention, the Contracting States will avoid having to take any other measures to adapt their internal legislation to the criteria laid down in Articles 5 and 6. The Convention itself determines which court has jurisdiction. Adoption of the 'special' rules of jurisdiction is also justified by the fact that there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it. Thus, to take the example of the forum delicti commissi a person domiciled in a Contracting State other than the Netherlands who has caused an accident in The Hague may, under the Convention, be sued in a court in The Hague. This accident cannot give other Netherlands courts jurisdiction over the defendant. On this point there is thus a distinct difference between Article 2 and Articles 5 and 6, due to the fact that in Article 2 domicile is the connecting factor. There are great differences between the laws of the Six in their attitude to the jurisdiction of the forum contractus; in some countries this jurisdiction is not recognized (the Netherlands, Luxembourg), while in others it exists in varying degrees. Belgian law recognizes the jurisdiction of the courts for the place where the obligation arose, and also that of the courts for the place where the obligation has been or is to be performed [1]; Italian law recognizes only the jurisdiction of the courts for the place where the obligation arose and where it has been performed [2]; German law in general recognizes only the jurisdiction of the courts for the place where the obligation has been ...
... performed [1]; and, finally, French law recognizes the jurisdiction of the forum contractus only to a limited extent and subject to certain conditions [2]. Some of the conventions concluded between the Six reject this forum, while others accept it in varying degrees. Article 2 (1) of the Convention between France and Belgium provides that, where a defendant is neither domiciled nor resident in France or Belgium, a Belgian or French plaintiff may institute proceedings in the courts for the place where the obligation arose or where it has been or is to be performed [3]. Article 4 of the Convention between Belgium and the Netherlands provides that in civil or commercial matters a plaintiff may bring a personal action concerning movable property in the courts for the place where the obligation arose or where it has been or is to be performed. In Article 3 (5) of the Convention between Belgium and Germany, jurisdiction is recognized where, in matters relating to a contract, proceedings are instituted in a court of the State where the obligation has been or is to be performed. Article 14 of the Convention between France and Italy provides that if the action concerns a contract which is considered as a commercial matter by the law of the country in which the action is brought, a French or Italian plaintiff may seise the courts of either of the two countries in which the contract was concluded or is to be performed. The Convention between Belgium and Italy (Article 2 (5)) recognizes jurisdiction where, in matters relating to a contract, an action is brought before the courts of the State where the obligation arose, or where it has been or should have been performed. There are no provisions on this subject in the Conventions between Italy and the Netherlands, Germany and Italy, and Germany and the Netherlands. Finally, the Benelux Treaty adopts Article 4 of the Convention between Belgium and the Netherlands, but includes a Protocol which in Article 1 lays down that Article 4 shall not apply where Luxembourg concerned if the defendant is domiciled or resident in the country of which he is a national [4] The jurisdiction of the forum is, as in German law limited to matters relating to contract. It could have been restricted to commercial matters, but account must be taken of the fact that European integration will mean an increase in the number of contractual relationships entered into. To have confined it to commercial matters would moreover have raised the problem of classification. Only the jurisdiction of the forum solutionis has been retained, that is to say the jurisdiction of the courts for the place of performance of the obligation on which the claim is based. The reasons for this are as follows. The Committee considered that it would be unwise to give jurisdiction to a number of courts, and thus possibly create conflicts of jurisdiction. A plaintiff already has a choice, in matters relating to a contract between the competent courts of the State where the defendant is domiciled, or, where there is more than one defendant, the courts for the place where anyone of them is domiciled, or finally, the courts for the place of performance of the obligation in question. If the Committee had adopted as wide-ranging a provision as that of the Benelux Treaty, which recognizes also the jurisdiction of the courts for the place where the obligation arose, this would have involved very considerable changes for those States whose laws do not recognize that forum, or do so only with certain restrictions. There was also concern that acceptance of the jurisdiction of the courts for the place where the obligation arose might sanction, by indirect means, the jurisdiction of the forum of the plaintiff. To have accepted this forum would have created tremendous problems of classification, in particular in the case of contracts concluded by parties who are absent. The court for the place of performance of the obligation will be useful in proceedings for the recovery of fees: the creditor will have a choice between the courts of the State where the defendant is domiciled and the courts of another State within whose jurisdiction the services
were provided, particularly where, according to the appropriate law, the obligation to pay must be performed where the services were provided. This forum can also be used where expert evidence or inquiries are required. The special position of Luxembourg justified, as in the Benelux Treaty, the inclusion of a special provision in the Protocol (Article I). In matters relating to contracts of employment in the broadest sense of the term, the preliminary draft of the Convention contained a provision attributing exclusive jurisdiction to the courts of the Contracting State either in which the undertaking concerned was situated, or in which the work was to have been or had been performed. After prolonged consideration the Committee decided not to insert in the Convention any special provisions on jurisdiction in this field. Its reasoning was as follows. First, work is at present in progress within the Commission of the EEC to harmonize the provisions of labour law in the Member States. It is desirable that disputes over contracts of employment should as far as possible be brought before the courts of the State whose law governs the contract. The Committee therefore did not think that rules of jurisdiction should be laid down which might not coincide with those which may later be adopted for determining the applicable law. In order to lay down such rules of jurisdiction, the Committee would have had to take into account not only the different ways in which work can be carried out abroad, but also the various categories of worker: wage-earning or salaried workers recruited abroad to work permanently for an undertaking, or those temporarily transferred abroad by an undertaking to work for it there; commercial agents, management, etc. Any attempt by the Committee to draw such distinctions might have provided a further hindrance to the Commission s work. Next, in most Member States of the Community the principle of freedom of contract still plays an important part; a rule of exclusive jurisdiction such as that previously provided for in Article 16 would have nullified any agreements conferring jurisdiction. The general rules of the Convention will therefore apply to contracts of employment. Thus, in litigation between employers and employees, the following courts have jurisdiction: the courts of the State where the defendant is domiciled (Article 2); the courts for the place of performance of the obligation, if that place is in a State other than that of the domicile of the defendant (Article (1)); and any court on which the parties have expressly or impliedly agreed (Articles 17 and 18). In the case of proceedings based on a tort committed at work (Article 2 Nos and of the Arbeitsgerichtsgesetz), Article 5 (3), which provides for the jurisdiction of the courts for the place where the harmful event occurred, could also apply. It seems that these rules will, for the time being, prove of greater value to the persons concerned than a provision similar to that of the former Article 16 (2), which could not be derogated from because it prohibited any agreement conferring jurisdiction. The rules on the recognition and enforcement of judgments will probably ensure additional protection for employees. If the law of the State addressed had to be applied to a contract of employment, the courts of that State, upon being seised of an application for recognition or enforcement of a foreign judgment would, on the basis of Article 27 (1), which permits refusal of recognition (or enforcement) on grounds of public policy in the State addressed, be able to refuse the application if the court of the State of origin had failed to apply, or had misapplied, an essential provision of the law of the State addressed. Once the work of the Commission in this field has been completed, it will always be possible to amend the provisions of the Convention, either by means of an additional Protocol, or by the drafting of a convention governing the whole range of problems relating to contracts of employment, which would, under Article , prevail over the Convention.
Matters relating to maintenance are governed by the Convention. The Convention is in a sense an extension of the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations in respect of children [1] since ...
... it ensures the recognition and enforcement of judgments granting maintenance to creditors other than children and also of the New York Convention of 20 June 1956 on the recovery abroad of maintenance [1]. The Committee decided that jurisdiction should be conferred on the forum of the creditior, for the same reasons as the draftsmen of the Hague Convention [2] For one thing, a convention which did not recognize the forum of the maintenance creditor would be of only limited value, since the creditor would be obliged to bring the claim before the court having jurisdiction over the defendant. If the Convention did not confer jurisdiction on the forum of the maintenance creditor, it would apply only in those situations where the defendant against whom an order had been made subsequently changed residence, or where the defendant possessed property in a country other than that in which the order was made. Moreover the court for the place of domicile of the maintenance creditor is in the best position to know whether the creditor is in need and to determine the extent of such need. However, in order to align the Convention with the Hague Convention Article 5 (2) also confers jurisdiction on the courts for the place of habitual residence of the maintenance creditor. This alternative is justified in relation to maintenance obligations since it enables in particular a wife deserted by her husband to sue him for payment of maintenance in the courts for the place where she herself is habitually resident, rather than the place of her legal domicile. The Convention also supplements the New York Convention of 20 June 1956 on the recovery abroadmaintenance. The latter is limited to providing that a forwarding authority will transmit to an intermediate body any judgment already given in favour of a maintenance creditor, and that body will then have to begin proceedings for enforcement or registration of the judgment, or institute new proceedings altogether. This Convention, by simplifying the formalities governing enforcement will thus facilitate implementation of the New York Convention. As regards maintenance payments, the Committee did not overlook the problems which might be raised by preliminary issues (for example, the question of affiliation). However, it considered that these were not properly problems of jurisdiction, and that any difficulties should be considered in the chapter on recognition and enforcement of judgments. It was suggested that, in order to avoid conflicting judgments, it might be desirable to provide that the court which had fixed the amount of a maintenance payment should be the only court to have jurisdiction to vary it. The Committee did not think it necessary to adopt such a solution. This would have obliged parties neither of whom had any further connection with the original court, to bring proceedings before courts which could be very far away. Moreover, any judgment by a second court, in order to vary that of the first court would have to be based on changed facts, and in those circumstances it could not be maintained that the judgments were in conflict [3].
This jurisdiction is recognized by the national laws of the Member States with the exception of Luxembourg and the Netherlands, where it exists only in respect of collisions of ships and of road accidents. The following are applicable in Belgium, Articles 41 and 52 (3) of the Law of 1876 [4]; in Germany, Article 32 of the Code of Civil Procedure; in France, Article 59 (12) of the Code of Civil Procedure and Article 21 of the Decree of 22 December 1958; and in Italy, Article 20 of the Code of Civil Procedure. This jurisdiction is incorporated in the bilateral conventions by the following provisions: Article 4 of the Convention between Belgium and the Netherlands and Article 4 of the Benelux Treaty, which cover all obligations concerning movable property, whether statutory, contractual or non-contractual [5]; Article 2 (b) of the Convention between Belgium and Italy; Article 3 (1) (6) of the Convention between Germany ...
... and Belgium; Article 15 of the Convention between France and Italy; Article 2 (4) of the Convention between Germany and Italy; and Article 4 (1) (e) of the Convention between Germany and the Netherlands.. The fact that this jurisdiction is recognized under most of the legal systems, and incorporated in the majority of the bilateral conventions, was a ground for including it in the Convention, especially in view of the high number of road accidents. Article 5 (3) uses the expression ' the place where the harmful event occurred' . The Committee did not think it should specify whether that place is the place where the event which resulted in damage or injury occurred or whether it is the place where the damage or injury was sustained. The Committee preferred to keep to a formula which has already been adopted by number of legal systems (Germany, France). Article 5 (4) provides that a civil claim may be brought before a court seised of criminal proceedings; this is in order to take into account the rules of jurisdiction laid down by the various codes of criminal procedure. A civil claim can thus always be brought, whatever the domicile of the defendant, in the criminal court having jurisdiction to entertain the criminal proceedings even if the place where the court sits (place of arrest, for example) is not the same as that where the harmful event occurred.
This jurisdiction exists in the bilateral conventions already concluded between the Contracting States: the Conventions between Italy and Belgium (Article 2 (3)), between Belgium and Germany (Article 2 (1) (4)), between France and Belgium (Article 3 (2)), between France and Italy (Article 13), between Italy and the Netherlands (Article 2 (3)), and between Belgium and the Netherlands (Article 5 (3)); the Benelux Treaty (Article 5 (4)); and the Conventions between Germany and the Netherlands (Article 4 (1) (d)), and between Germany and Italy (Article 2 (3)). This provision concerns only defendants domiciled in a Contracting State (Article 5), that is, companies or firms having their seat in one Contracting State and having a branch, agency or other establishment in another Contracting State. Companies or firms which have their seat outside the Community but have a branch, etc. in a Contracting State are governed by Article 4, even as regards disputes relating to the activities of their branches, but without prejudice to the provisions of Article 8 relating to insurance.
Where there is more than one defendant, the courts for the place where anyone of the defendants is domiciled are recognized as having jurisdiction. This jurisdiction is provided for in the internal law of Belgium [1], France [2], Italy [3], Luxembourg [4]and the Netherlands [5]. It is not in general provided for in German law. Where an action must be brought in Germany against a number of defendants and there is no jurisdiction to which they are all subject, the court having jurisdiction may, subject to certain conditions, be designated by the superior court which is next above it (Article 36 (3) of the German Code of Civil Procedure). This jurisdiction is also provided for in the Conventions between Italy and the Netherlands (Article 2 (1)), between Italy and Belgium (Article 2 (1)), between France and Italy (Article 11 (2)), and between Germany and Italy (Article 2 (1)). However, under the latter Convention, jurisdiction depends on the existence of a procedural requirement that the various defendants be joined. It follows from the text of the Convention that, where there are several defendants domiciled in different Contracting States, the plaintiff can at his option sue them all in the courts for the place where anyone of them is domiciled. In order for this rule to be applicable there must be a connection between the claims made against each of the defendants, as for example in the case of joint debtors [6]. It follows that action cannot be brought solely with the object of ousting the jurisdiction of the courts of the State in which the defendant is domiciled [7].
Jurisdiction derived from the domicile of one of the defendants was adopted by the Committee because it makes it possible to obviate the handing down in the Contracting States of judgments which are irreconcilable with one another.
An action on a warranty or guarantee brought against a third party by the defendant in an action for the purpose of being indemnified against the consequences of that action, is available in Belgian [1], French [2], Italian [3], Luxembourg [4] and Netherlands [5]law. The proceeding which corresponds to an action on a warranty or guarantee in Germany is governed by Articles 72, 73 and 74 and Article 68 of the Code of Civil Procedure. A party who in any proceedings considers that, if he is unsuccessful, he has a right of recourse on a warranty or guarantee against a third party, may join that third party in the proceedings (Article 72) (Streitverkündung- litis denunciatio). The notice joining the third party must be served on that party and a copy must be sent to the other party (Article 73). No judgment can be given as regards the third party, but the judgment given in the original proceedings is binding in the sense that the substance of the judgment cannot be contested in the subsequent action which the defendant may bring against the third party (Article 68). Under the German Code of Civil Procedure the defendant can exercise his right of recourse against the third party only in separate proceedings. Actions on a warranty or guarantee are governed by the bilateral Conventions between Belgium and Germany (Article 3 (10)), between France and Belgium (Article 4 (2)), between Belgium and the Netherlands (Article 6 (2)), between Italy and the Netherlands (Article 2 (4)), between Belgium and Italy (Article 2 (10)), and between Germany and the Netherlands (Article 4 (1) (c)), and also by the Benelux Treaty (Article 6 (3)). This jurisdiction is, in the opinion of the Committee, of considerable importance in commercial dealings, as can be seen from the following example: A German exporter delivers goods to Belgium and the Belgian importer resells them. The purchaser sues the importer for damages in the court for the place of his domicile for example in Brussels. The Belgian importer has a right of recourse against the German exporter and consequently brings an action for breach of warranty against that exporter in the court in Brussels, since it - has jurisdiction over the original action. The jurisdiction over the action on the warranty is allowed by the Convention although the warrantor is domiciled in Germany, since this is in the interests of the proper administration of justice. However, under Article 17, the court seised of t original action will not have jurisdiction over the action on the warranty where the warrantor and the beneficiary of the warranty have agreed to confer jurisdiction on another court provided that the agreement covers actions on the warranty. Moreover, the court seised of the original action will not have jurisdiction over an action on the warranty if the original proceedings were instituted solely with the object of ousting the jurisdiction of the courts of the State in which the warrantor is domiciled [6]. The special position of German law is covered by Article V of the Protocol. Under this provision, the jurisdiction specified in Article 6 (2) in actions on a warranty or guarantee may not be resorted to in the Federal Republic of Germany, but any person domiciled in another Contracting State may be summoned before the German courts on the basis of Articles 72 to 74 of the Code of Civil Procedure. Judgments given against a guarantor or warrantor in the other Contracting States will be recognized and enforced in Germany. Judgments given in Germany pursuant to Articles 72 to 74 will have the same effect in the other Contracting States as in Germany. Thus, for example, a guarantor or warrantor domiciled in France can be sued in the German court having jurisdiction over the original action. The German law ...
... judgment given in Germany affects only the parties to the action, but it can be invoked against the guarantor or warrantor. Where the beneficiary of the guarantee or warranty proceeds agaist the guarantor or warrantor in the competent French courts , he will be able to apply for recognition of the German judgment, and it will no longer be possible to re-examine that judgment as to the merits. It is clear that, following the principles which apply to enforcement, a judgment given in an action on a guarantee or warranty will have no effects in the State in which enforcement is sought other than those which it had in the country of origin. This principle, which already applied under the Conventions between Germany and Belgium (Article 3 (10)) and between Germany and the Netherlands (Article 4 (1) (i)), is thus incorporated in the provision governing relations between the Federal Republic of Germany and the other Member States of the Community. While a third party warranty or guarantee necessarily involves the intervention of an outsider, it seemed preferable to make separate provision for guarantors or warrantors and for other third parties. The simplest definition of third party proceedings is to be found in Articles 15 and 16 of the Belgian Judicial Code, which provides that: ‘Third party proceedings are those in which a third party is joined as a party to the action. They are intended either to safeguard the interests of the third party or of one of the parties to the action, or to enable judgment to be entered against a party, or to allow an order to be made for the purpose of giving effect to a guarantee or warranty (Article 15). The third party s intervention is voluntary where he appears in order to defend his interests. It is not voluntary where the third party is sued in the course of the proceedings by one or more of the parties (Article 16).’
The bilateral. conventions on enforcement all recognize jurisdiction over counterclaims: see the Convention between Belgium and Germany (Article 3 (1) (10)) (counterclaims); the Convention between Italy and Belgium (Article 2 (1) (10)) (dependent counterclaims); the Convention between France and Belgium (Article 4 (2)) (counterclaims); the Convention between Belgium and the Netherlands (Article 6) (counterclaims, third party proceedings and interlocutory proceedings); the Convention between France and Italy (Article 18) (claims for compensation, interlocutory or dependent proceedings, counterclaims); the Convention between Italy and the Netherlands (Article 2 (4)) dependent proceedings, counterclaims); "the Convention between Germany and Italy (Article 2 (5)) (counterclaims); the Benelux Treaty (Article 6) (counterclaims, third party proceedings and interlocutory proceedings); and the Convention between Germany and the Netherlands (Article 4 (1) (i)) (counterclaims and actions on a warranty or guarantee). It has been made clear that in order to establish this jurisdiction the counterclaim must be related to the original claim. Since the concept of related actions is not recognized in all the legal systems, the provision in question, following the draft Belgian Judicial Code states that the counterclaim must arise from the contract or from the facts on which the original claim was based.
In each of the six Contracting States, the rules of territorial jurisdiction are not as a rule part of public policy and it is therefore permissible for the parties to agree on a different jurisdiction. There are, however, exceptions to this principle: certain rules of jurisdiction are mandatory or form part of public policy, either in order to further the efficient administration of justice by reducing the number of jurisdictions and concentrating certain forms of litigation in a single forum, or else out of social considerations for the protection of certain categories of persons, such as insured persons or buyers of goods on instalment credit terms. In view of the Convention s structure and objectives, it was necessary to deal with this matter under the Convention. Failure to take account of the problem raised by these rules of jurisdiction might not only have caused recognition and enforcement to be refused in certain cases on grounds of public policy, which would be contrary to the principle of free movement of judgments, but also result, indirectly, in general re-examination of the jurisdiction of the court of the State of origin. Serveral solutions were open to the Committee. end of page: Official Journal of the European Communities No C 59/28 (05-03-1979) The first is found in many bilateral Conventions, and enables the court of the State in which recognition or enforcement is sought to refuse to recognize the jurisdiction of the court of the State of origin where, in the former State, there are ' rules attributing exclusive jurisdiction to the courts of that State in the proceedings which led to the judgment' [1]. This system would have been unsatisfactory not only because it gives rise to the objections already set out above, but because it would have introduced into the Convention an element of insecurity incompatible with its basic principles. It is no solution to the problem, and only postpones the difficulties, deferring them until the recognition and enforcement stage. Another possible solution would have been a general clause like that contained in the Convention between Belgium and the Netherlands or the Bendux Treaty (Article 5 (1)), which takes into consideration the internal law of the Contracting States ([2]. Such a clause could however, lead to difficulties of interpretation since the court of the State of origin must, where its jurisdiction is contested, apply the internal law of the State which claims to have exclusive jurisdiction. Moreover, while such a solution might be acceptable in a Treaty between three States, it would be much more difficult to incorporate it in a Convention between six States where it is not always possible to determine in advance the State or States in which recognition or enforcement may be sought. A third solution would have been to draw up a list the individual jurisdictions which would be exclusive and which would thus be binding on all the Contracting States. Such a list would answer the need of the parties for information regarding the legal position, allow the court to give judgment on the basis of a definite common rule, remove any element of uncertainty and ensure a balance between the parties to contractual arrangements. The considerations underlying the various provisions of the Convention are complex. Sections 3 and 4, for example, concerning insurance and instalment sales and loans, are dictated by social considerations and are aimed in particular at preventing abuses which could result from the terms of contracts in standard form. Section 5 (Article 16) contains a list of situations in which the courts of a Contracting State are acknowledged as having exclusive jurisdiction, since the proper administration of justice requires that actions should be brought before the courts of a single State. The Convention deals with the two categories differently. The first category has been placed in an intermediate position between the general rules of jurisdiction and the rules which are wholly exclusive. The following system adopted: 1. For matters falling within Section 3 and 4 there is no single jurisdiction. A choice, albeit a limited one exists between the courts of different Contracting States where the plantiff is a protected person, that, a policy-holder, a buyer or a borrower. In matters falling under exclusive jurisdictions pursuant to Section 5 , the parties have no choice between the courts of serveral Contracting States. 2. The parties may, in certain circumstances, derogate from the provisions of Sections 3 and 4 (Articles 12 , and 18). The provisions of Section 5 may not however, be derogated from, either by an agreement conferring jurisdiction (second paragraph of Article 17) or by an implied submission to the jurisdiction (Article 18). 3. The rules in Section 3 and 4 are applicable only where the defendant is domiciled in a Contracting State, whereas those in Section 5 apply regardless of domicile. However, contravention of the provisions of Sections 3 and 4, as well as of those of Section 5 , constitutes a ground for refusing recognition and enforcement (Articles 28 and 34).
Jurisdiction in matters relating to insurance Rules of exclusive or special jurisdiction relating to insurance exist in France (Article 3 of the Law of July 1930 concerning contracts of insurance), in Belgium (Law of 20 May 1920, added as Article 43 bis to the Law of 25 March 1876 on jurisdiction), in Germany (48 of the Gesetz iiber den Versicherungsvertrag (Law on contracts of insurance)), and in Italy (Article 1903 (2) of the Civil Code, Article 124 of the Consolidated Law on private insurance). In Luxembourg, the Law of 16 May 1891 on contracts of insurance does not include any provision on jurisdiction. This is due to the small size of the Grand Duchy, which comprises only two judicial arrondissements. However, the Law of 16 May 1891 concerning the supervision of insurance matters governs jurisdiction in regard to foreign insurance companies. This Law requires an insurer resident abroad who is transacting insurance business in the Grand Duchy to appoint a general representative domiciled Luxembourg who will represent him there judicially and extrajudicially. This representative must give an address for service of process in the judicial arrondissement in which he is not domiciled. Either the domicile of the general representative or his address for service founds jurisdiction in respect of actions arising from contracts of insurance. In the Netherlands, there are no special provisions concerning the jurisdiction of the courts insurance matters. As regards foreign life-assurance companies, the Netherlands Law of 22 December 1922 recognizes rules analogous to those of the Luxembourg Law of 16 May 1891. The rules are approximately the same in Germany. Section 3 was drawn up in cooperation with the European Insurance Committee. The provisions of this Section may be summarized as follows: in matters relating to insurance, actions against an insurer domiciled in a Contracting State may be brought in the following courts, i. e. either: (i) In the courts of the State where he is domiciled (Article 8), or, subject to certain conditions, in the courts for the place where he has a branch (Articles 7 and 8); or (ii) (a) in the courts for the place where the policy-holder is domiciled (Article 8); (b) in the courts of the State where one of the insurers is domiciled, if two or more insurers are the defendants (Article 8); (c) in the courts for the place where the agent who acted as intermediary in the making of the contract of insurance has his domicile , if there is provision for such jurisdiction under the law of the court seised of the matter (Article 8); (d) 1. in respect of liability insurance, the insurer may in addition be sued: (1) in the courts for the place where the harmful event occurred (Articles 9 and 10), (2) as a third party, in the court seised of the action brought by the injured party against the insured if, under its own law, that court has jurisdiction in the third party proceedings (Article 10); 2. in respect of insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency (Article 9). Where an insurer is the plaintiff, he may in general bring an action only in the courts of the State in which the defendant is domiciled, irrespective of whether the latter is the policy-holder, the insured or a beneficiary. Agreements conferring jurisdiction which depart from these rules have
no legal force if they were entered into before the dispute arose (Article
12). [Article 7 = Article 8 Brussels I Regulation] Specific exceptions are made by the references to Articles 4 and 5 (5), which concern respectively defendants domiciled outside the Community and disputes arising out of the operations of a branch agency or other establishment. It follows from the first of these exceptions that jurisdiction is determined by the law of the court seised of the matter including the rules of exorbitant jurisdiction, where the defendant, whether he is the insurer or the policy-holder, is domiciled outside the Community. However, as an exception to the general rules of the Convention, an insurer domiciled outside the Community who has a branch or an agency in a ... ... Contracting State is, in disputes relating to the operations of the branch or agency, deemed to be domiciled in that State. This exception, which contained in the last paragraph of Article 8 , was adopted because foreign insurance companies can establish branches or agencies in other States only by putting up guarantees which in practice place them in the same position as national companies. However, the exception applies only to branches or agencies, i.e. when the foreign company is represented by a person able to conclude contracts with third parties on behalf of the company. The second exception again relates to branches or agencies, and also to other establishments, which, as appears from the reference back to Article 5 (5), depend from a company whose seat is in a Contracting State. The result is that such a company may be sued in the courts for the place in which the branch, agency or establishment is situated, in all disputes arising out of their operations. [Article 8 (1) = Article 9 (1) Brussels I Regulation] First, the courts of the State where the insurer is domiciled have jurisdiction. This provision determines only general jurisdiction, namely the jurisdiction of the courts of the State where the insurer is domiciled. Each State must then apply its internal law to determine which court has jurisdiction. However, if the insurer is sued outside the State in which he is domiciled, the proceedings must be instituted in specifically determined court, in accordance with the principles already adopted in Article 5. Secondly, an action may be brought in a State other than that in which the insurer is domiciled, in the courts for the place where the policy-holder is domiciled. Policy-holder' is to be taken to mean the other party to the contract of insurance. Where the insured or the beneficiary is not the same person as the policy-holder their place of domicile is not taken into consideration. As was noted in particular by the European Insurance Committee, the insurer, as a supplier of services , enters into a business relationship with the other contracting party (the policy-holder). Because of their direct contact it is right and proper that the insurer can be sued in the courts for the place where the policy-holder domiciled. But it would be unreasonable to expect the insurer to appear in the court of the insured or of a beneficiary, since, he will not necessarily know their exact domicile at lhe time when the cause of action arises. The domicile of the policy-holder which is relevant here is the domicile existing at the time when the proceedings are instituted. Thirdly, if two or more insurers are defendants in the same action, they may be sued in the courts of the State where anyone of them is domiciled. This provision is identical to that in Article 6 (1), which does not apply here since the Section relating to insurance applies independently of the rest of the Convention.
The expression 'the agent, who acted as intermediary in the making of the contract of insurance' includes both an agent through whom the contract was directly concluded between the company and the policy-holder and also an agent who negotiated the contract to conclusion on behalf of the company. The significance ... ... of the last paragraph of ArticleS is made clear in the commentary
on Article 7. [Article 9 = Article 10 Brussels I Regulation] [Article 10 = Article 11 Brussels I Regulation] Under the first paragraph of Article 10, in an action brought by the injured party against the insured, the latter may join the insurer as a third party if the court seised of the matter has jurisdiction in such a case under its own law. This is not possible in the Federal Republic of Germany [1]. The problem arose whether consolidation of the two actions should be allowed even where the insurer and the insured are both domiciled in the same State, which it must be assumed for the purposes of this argument, is different from the State of the court seised of the matter. For example, where an accident is caused in France by a German domiciled in Germany who is insured with - a German company, should third party proceedings which are recognized under French law, be possible even though the litigation concerns a contract of insurance between a German insured person and a German insurer? As it is subject to German law, should this contract not be litigated in a German court? The contractual relationship between the insurer and the policy-holder would then fall outside the scope of the proceedings relating to personal liability. While acknowledging the relevance of this question, the Committee was of the opinion that it would be unwise to introduce rules of jurisdiction which would depart from national laws and which could also jeopardize the system in force following the introduction of the green card [2]. The compromise solution adopted by the Committee is to reduce the scope of the first paragraph of Article 10 by inserting, under Article 12 (3), a provision that, if the policy-holder and the insurer are both domiciled in the same Contracting State, when the contract is concluded they may agree to confer jurisdiction on the courts of that State. Such an agreement must not, however, be contrary to the law of that State. Under the second paragraph of Article 10 the insurer may also, in respect of liability insurance, be sued directly by the injured party [3] outside the State in which he is domiciled in any court which, under Articles 7 to 9, has jurisdiction over actions brought by the policy-holder against the insurer. Where, however, under the first paragraph of Article 8 the court for the place where the policy-holder is domiciled has jurisdiction, there is no provision giving jurisdiction to the court for the place where the injured party is domiciled. The phrase 'where such direct actions are permitted' has been used specifically to include the conflict of laws rules of the court seised of the matter [4]. Under the last paragraph of Article 10 , the insurer may join the policy-holder or the insured as parties to the action brought against him by the injured party. In the interests of the proper administration of justice, it must be possible for the actions to be brought in the same court in order to prevent different courts from giving judgments which are irreconcilable. This procedure will in addition protect the insurer against fraud [5].
[Article 11 = Article 12 Brussels I Regulation] The courts of the State in which the defendant is domiciled when the proceedings are instituted have exclusive jurisdiction. Again, this is a provision dealing with international jurisdiction; local jurisdiction within each State will be determined by the internal law of that State. Article 11 does not apply where the defendant is domiciled outside a
Contracting State, that is to say, outside the Community. In such cases
Article 4 applies. The second paragraph corresponds to the provisions
of Article 6 (3). [Article 12 = Article 13 Brussels I Regulation] The purpose of this Article is to prevent the parties from limiting the choice offered by this Convention to the policy-holder, and to prevent the insurer from avoiding the restrictions imposed under Article 11. A number of exceptions are, however, permitted. After a dispute has arisen , that is to say ' as soon as the parties disagree on a specific point and legal proceedings are imminent or contemplated' [1], the parties completely regain their freedom. Certain agreements conferring jurisdiction which were concluded before the dispute arose are also permissible. First, there are those made to the advantage of the policy-holder, the insured or a beneficiary, which allow them to bring proceedings in courts other than those specified in the preceding Articles. Certain other agreements conferring jurisdiction are allowed under Article 12 (3), but only in the strictly defined circumstances therein specified which have been explained in the commentary on Article 10. This Section relates to the sale of goods where the price is payable in a series of instalments, and to the sale of goods where the sale is contractually linked to a loan (Abzahlungsgeschafte). The rules here adopted are similar to those applicable in the national law of several of the Member States and, like them, stem from a desire to protect certain categories of persons. Article 13 provides that this Section applies independently of the rest of the Convention and, like Article 7, without prejudice to the provisions of Articles 4 and 5 (5). [Article 14 = Article 16 Brussels I Regulation] Actions by a seller or a lender may in general be brought only in the courts for the place where the buyer or borrower is domiciled when the proceedings are instituted. The third paragraph relating counterclaims, corresponds to Article 6 (3). [Article 15 = Article 17 Brussels I Regulation]Article 15, which relates to agreements conferring jurisdiction, contains under (3) a provision analogous to that of Article 12 (3), but for different reasons. In actions brought by a seller or a lender, it is rather difficult to determine jurisdiction where the buyer borrower establishes himself abroad after the contract has been concluded. To protect these persons, they should ideally be sued only in the courts of the State where they have established their new domicile. For reasons of equity the Committee has however provided that where a seller and a buyer, or a lender and a borrower, are both domiciled or at least habitually resident in the same State when the contract is concluded, they may confer on the courts of that State jurisdiction over all disputes arising out of the contract on condition that such agreements are not contrary to the law of that State. The criterion of habitual residence allows agreements conferring jurisdiction to be concluded even where a buyer or borrower remains domiciled in a Contracting ...
... State other than that in which he is resident. It follows for example, that a seller or lender need not sue the defendant abroad in the courts of the State in which the defendant is domiciled, if when the proceedings are instituted, the defendant is still resident in the State in which the contract was concluded. Article 16 lists the circumstances in which the six States recognize that the courts of one of them have exclusive jurisdiction. The matters referred to in this Article will normally be the subject of exclusive jurisdiction only if they constitute the principal subject-matter of the proceedings of which the court is to be seised. The provisions of Article 16 on jurisdiction may not be departed from either by an agreement purporting to confer jurisdiction on the courts of another Contracting State, or by an implied submission to the jurisdiction (Articles 17 and 18). Any court of a State other than the State whose courts have exclusive jurisdiction must declare of its own motion that it has no jurisdiction (Article 19). Failure to observe these rules constitutes a ground for refusal of recognition or enforcement (Articles 28 and 34). These rules, which take as their criterion the subject-matter of the action, are applicable regardless of the domicile or nationality of the parties. In view of the reasons for laying down rules of exclusive jurisdiction it was necessary to provide for their general application even in respect of defendants domiciled outside the Community. Thus, for example, a Belgian court will not, on the basis of Article 53 of the Law of 1876 or of Article 637 of the draft Judicial Code, which in actions against foreigners recognize the jurisdiction of the courts of the plaintiff, have jurisdiction in proceedings between a Belgian and a person domiciled, for example in Argentina, if the proceedings concern immovable property situated in Germany. Only the German courts will have jurisdiction. Under Article 16 (1), only the courts of the Contracting State in which the immovable property is situated have jurisdiction in proceedings concerning rights in rem or tenancies of, immovable property. The importance of matters relating to immovable property had already been taken into consideration by the authors of the Treaty of Rome since, under Article 54 (3) (c) of that Treaty, the Commission and the Council must enable ' a national of one Member State to acquire and use land and buildings situated in the territory of another Member State , in so far as this does not conflict with the principles laid down in Article 39 (2) relating to agricultural policy. The problems which the Committee faced in this connection did not in fact relate to the recognition and enforcement of judgments, since these questions are governed by the provisions of the conventions already concluded between Member States, all of which apply in civil and commercial matters, including immovable property, but rather to the choice of rules of jurisdiction. The laws of all the Member States include in this respect special rules of jurisdiction (1) which generally speaking, have been incorporated in the bilateral conventions, whether they are based on direct (2) or indirect (3) jurisdiction. (1) Belgium: Article 8 of the Law of 25 March 1876, amended by the Arrete royal of 3 January 1935; Article 52 of the Law of 1876; Federal Republic of Germany, Article 24 of the Code of Civil Procedure; France, Article 59 (5) of the Code of Civil Procedure; Italy, Articles 4 and 21 of the Code of Civil Procedure; Luxembourg, Article 59 (3) and (4) of the Code of Civil Procedure; Netherlands, Article 126 (8) of the Code of Civil Procedure. (2) Convention between Belgium and the Netherlands (Article 10). (3) Conventions between Germany and Belgium (Article 10); between France and Italy (Article 16); between Italy and the Netherlands (Article 2 (6)); between Germany and Italy (Article 2 (7)); between Belgium and Italy (Article 2 (8)); and between Germany and the Netherlands (Article 4 (1) (f)). However, the rules laid down in the Convention differ from those in the bilateral agreements in that the Convention lays down rules of exclusive jurisdiction. The Convention follows in this respect the Treaty between France and Germany settling the question of the Saar, Article 49 of which provides that the courts ' the country in which the immovable property is situated shall have exclusive jurisdiction in all disputes regarding the possession or ownership of such property and in all disputes regarding rights in rem in such property As in that Treaty, the exclusive jurisdiction established by Article 16 (1) applies only in international relations; the internal rules of jurisdiction in force in each of the States are thus not affected. In other words, the Convention prohibits the courts of one Contracting State from assuming jurisdiction in ... ... disputes relating to immovable property situated in another Contracting State; it does not, in the State in which the immovable property is situated, prevent courts other than that for the place where the property is situated from having jurisdiction in such disputes if the jurisdiction of those other courts is recognized the law of that State. A number of considerations led the Committee to provide a rule of exclusive jurisdiction in this matter. In the Federal Republic of Germany and in Italy, the court for the place where the immovable property is situated has exclusive jurisdiction, this being considered a matter of public policy. It follows that, in the absence of a rule of exclusive jurisdiction, judgments given in other States by courts whose jurisdiction might have been derived from other provisions of the Convention (the court of the defendant s domicile, or an agreed forum) could have been neither recognized nor enforced in Germany or Italy. Such a system would have been contrary to the principle of 'free movement of judgments’. The Committee was all the more inclined to extend to international relations the rules of jurisdiction in force in the Federal Republic of Germany and in Italy, since it considered that to do so was in the interests of the proper administration of justice. This type of dispute often entails checks, enquiries and expert examinations which have to be made on the spot. Moreover, the matter is often governed in part by customary practices which are not generally known except in the courts of the place, or possibly of the country, where the immovable property is situated. Finally, the system adopted also takes into account the need to make entries in land registers located where the property is situated. The wording adopted covers not only all disputes concerning rights in rem in immovable property, but also those relating to tenancies of such property. This will include tenancies of dwellings and of premises for professional or commercial use, and agricultural holdings. In providing for the courts of the State in which the property is situated to have jurisdiction regards tenancies in immovable property, the Committee intended to cover disputes between landlord and tenant over the existence or interpretation of tenancy agreements, compensation for damage caused by the tenant, eviction, etc. The rule was not intended by the Committee to apply to proceedings concerned only with the recovery of rent, since such proceedings can be considered to relate to a subject-matter which is quite distinct from the rented property itself. The adoption of this provision was dictated by the fact that tenancies of immovable property are usually governed by special legislation which, in view of its complexity, should preferably be applied only by the courts of the country in which it is in force. Moreover several States provide for exclusive jurisdiction in such proceedings, which is usually conferred on special tribunals. Article 16 (2) provides that the courts of the State in which a company or other legal person, or an association of natural or legal persons, has its seat, have exclusive jurisdiction in proceedings which are substance concerned either with the validity of the constitution, the nullity or the dissolution of the company, legal person or association, or with the decisions of its organs. It is important, in the interests of legal certainty, to avoid conflicting judgments being given as regards the existence of a company or association or as regards the validity of the decisions of its organs. For this reason, it is obviously preferable that all proceedings should take place in the courts of the State in which the company or association has its seat. It is in that State that information about the company or association will have been notified and made public. Moreover, the rule adopted will more often than not result in the application of the traditional maxim actor sequitur forum rei' Such jurisdiction is recognized in particular in German law and, as regards non-profit making organizations, in Luxembourg law. Article 16 (3) lays down that the courts of the State in which a public register is kept have exclusive jurisdiction in proceedings relating to the validity or effects of entries in that register. This provision does not require a lengthy commentary. It correspond to the provisions which appear in the internal laws of most of the Contracting States; it covers in particular entries in land registers, land charges registers and commercial registers. Article 16 (4) applies to proceedings concerned with the registration or validity of patents, trade marks, designs or other similar rights, such as those which protect fruit and vegetable varieties, and which are required to be deposited or registered. A draft convention has been drawn up by the EEC countries relating to patent law. The draft includes rules of jurisdiction for the Community patent, but it will not apply to national patents, which thus fall within the scope of the Judgments Convention. Since the grant of a national patent is an exercise of national sovereignty, Article 16 (4) of the Judgments Convention provides for exclusive jurisdiction in proceedings concerned with the validity of patents. Other actions, including those for infringement of patents, are governed by the general rules of the Convention. The expression 'the deposit or registration has been applied for' takes into account internal laws which, like German law, make the grant of a patent subject to the results of an examination. Thus, for example, German courts will have exclusive jurisdiction in the case of an application to the competent authorities for a patent to be granted where, during the examination of the application, a dispute arises over the rights relating to the grant of that patent. The phrase 'is under the terms of an international convention deemed to have taken place' refers to the system introduced by the Madrid Agreement of 14 April 1891 concerning international registration of trade marks, revised at Brussels on 14 December 1900, at Washington on 2 June 1911 , at The Hague on 6 November 1925 and at London on 2 June 1934, and also to the Hague Arrangement of 6 November 1925 for the international registration of industrial designs revised at London on 2 June 1934. Under this system the deposit of a trade mark, design or model at the International Office in Berne through the registry of the country of origin has the same effect in the other Contracting States as if that trade mark, design or model had been directly registered there. Thus where a trade mark is deposited at the International Office at the request of the German authorities, the French courts will have exclusive jurisdiction in disputes relating, for example, to whether the mark should be deemed to have been registered in France. Article 16 (5) provides that the courts of the State in which a judgment has been or is to be enforced have exclusive jurisdiction in proceedings concerned with the enforcement of that judgment. What meaning is to be given to the expression proceedings concerned with the enforcement of judgments It means those proceedings which can arise from ‘recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments' [1]. Problems arising out of such proceedings come within the exclusive jurisdiction of the courts for the place of enforcement. Provisions of this kind appear in the internal law of many Member States [2]
This section includes Article 17, on jurisdiction by consent, and Article 18 , which concerns jurisdiction 6implied from submission. Jurisdiction deriving from agreements conferring jurisdiction is already a feature of all the Conventions concluded between Member States of the Community, whether the rules of jurisdiction are direct or indirect: see the Convention between France and Belgium (Article 3), and between Belgium and the Netherlands (Article 5); the Benelux Treaty (Article 5); the ...
... Convention between France and Italy (Article 12), between Germany and Italy (Article 2 (2)), between Italy and the Netherlands (Article 2 (2)), between Italy and Belgium (Article 2 (1) (2)), between Germany and Belgium (Article 3 (2)), and between Germany and the Netherlands (Article 4 (1) (b)). This jurisdiction is also the subject of international conventions, namely the Hague Convention of 15 April 1958 on the jurisdiction of the contractual forum in matters relating to the international sale of goods, and the Hague Convention of 25 November 1965 on the choice of court [1]. It is unnecessary to stress the importance of this jurisdiction, particularly in commercial relations. However, although agreement was readily reached on the basic principle of including such a jurisdiction in the Convention the Committee spent much time in drafting Article 17. Like the draftsmen of the Convention between Germany and Belgium, the report of which may usefully be quoted, the Committee s first concern was ' not to impede commercial practice, yet at the same time to cancel out the effects of clauses in contracts which might go unread. Such clauses will therefore be taken into consideration only if they are the subject of an agreement, and this implies the consent of all the parties. Thus, clauses in printed forms for business correspondence or in invoices will have no legal force if they are not agreed to by the party against whom they operate. The Committee was further of the opinion that, in order to ensure legal certainty, the formal requirements applicable to agreements conferring jurisdiction should be expressly prescribed, but that ' excessive formality which is incompatible with commercial practice' [2] should be avoided. In this respect, the version adopted is similar to that of the Convention between Germany and Belgium, which was itself based on the rules of the Hague Convention of 15 April 1958 , in that a clause conferring jurisdiction is valid only if it is in writing, or if at least one of the parties has confirmed in writing an oral agreement [3]. Since there must be true agreement between the parties to confer jurisdiction, the court cannot necessarily deduce from a document in writing adduced by the party seeking to rely on it that there was an oral agreement. The special position of the Grandy Duchy of Luxembourg in this matter necessitated an additional restriction which is contained in the second paragraph of Article I of the Protocol. The question of how much weight is to be attached to the written document was left open by the Committee. In certain countries, a document in writing will be required only as evidence of the existence of the agreement; in others, however, it will go to the validity of the agreement.
The first paragraph of Article 17 applies only if at least one of the parties is domiciled in a Contracting State. It does not apply where two parties who are domiciled in the same Contracting State have agreed that a court that State shall have jurisdiction, since the Convention ...
... under the general principle laid down in the preamble determines only the international jurisdiction of courts (see Commentary, Chapter III, Section 1 , International legal relationships). Article 17 applies where the agreement conferring jurisdiction was made either between a person domiciled in one Contracting State and a person domiciled in another Contracting State, or between a person domiciled in a Contracting State and a person domiciled outside the Community, if the agreement confers jurisdiction on the courts of a Contracting State; it also applies where two persons domiciled in one Contracting State agree that a particular court of another Contracting State shall have jurisdiction.
The intention behind the Convention is to obviate cases of refusal of recognition and enforcement on the basis of Articles 28 and 34, and so, as already stated, to promote the free movement of judgments. The third paragraph of Article 17 provides that if the agreement conferring jurisdiction was concluded for the benefit of only one of the contracting parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction [1]. Agreements conferring jurisdiction cannot of course affect the substantive jurisdiction of the courts. Article 18 governs jurisdiction implied from submission. If a defendant domiciled in a Contracting State is sued in a court of another Contracting State which does not have jurisdiction under the Convention, two situations may arise: the defendant may either, as he is entitled to , plead that the court has no jurisdiction under the Convention, in which case the court must declare that it does not have jurisdiction; or he may elect not to raise this plea, and enter an appearance. In the latter case, the court will have jurisdiction. Unlike the case of conventions based on indirect jurisdiction, the defendant may, by virtue of the Convention, rely on its provisions in the court seised of the proceedings and plead lack of jurisdiction. It will be necessary to refer to the rules of procedure in force in the State of the court seised of the proceedings in order to determine the point in time up to which the defendant will be allowed to raise this plea, and to determine the legal meaning of the term ' appearance Moreover, by conferring jurisdiction on a court in circumstances where the defendant does not contest that court's jurisdiction , the Convention extends the scope of Title II and avoids any uncertainty. The main consequence of this rule is that if a defendant domiciled in a Contracting State is, notwithstanding the provisions of the second paragraph of Article 3 , sued in another Contracting State on the basis of a rule of exorbitant jurisdiction, for example in France on the basis of Article 14 of the Civil Code, the court will have jurisdiction if this is not contested. The only cases in which a court must declare that it has no jurisdiction and where jurisdiction by submission will not be allowed are those in which the courts of another State have exclusive jurisdiction by virtue of Article 16.
As has already been stated (page 8), a court must of its own motion examine whether it has jurisdiction. Article 19 emphasizes that the court must of its own motion declare that it has no jurisdiction if it is seised of a matter in which the courts of another Contracting State have exclusive jurisdiction by virtue of Article 16. This rule is essential since the exclusive jurisdictions are conceived to be matters of public policy which cannot be departed from by the free choice of the parties. Moreover, it corresponds to Article 171 of the French Code of Civil Procedure, by virtue of which territorial jurisdiction is automatically examined where the parties are not permitted to reach a settlement [2]. If this Article deserves particular attention, it is mainly because, in order that the general rules of jurisdiction ...
... are observed, it grants wide powers to the court seised of the proceedings, since that court will of its own motion have to examine whether it has jurisdiction. The words 'principally concerned' have the effect that the court is not obliged to declare of its own motion that it has no jurisdiction if an issue which comes within the exclusive jurisdiction of another court is raised only as a preliminary or incidental matter. Article 20 is one of the most important Articles in the Convention: it applies where the defendant does not enter an appearance; here the court must of its own motion examine whether it has jurisdiction under the Convention. If it finds no basis for jurisdiction, the court must declare that it has no jurisdiction. It is obvious that the court is under the same obligation even where there is no basis for exclusive jurisdiction. Failure on the part of the defendant to enter an appearance is not equivalent to a submission to the jurisdiction. It is not sufficient for the court to accept the submissions of the plaintiff as regards jurisdiction; the court must itself ensure that the plaintiff proves that it has international jurisdiction [1]. The object of this provision is to ensure that in cases of failure to enter an appearance the court giving judgment does so only if it has jurisdiction, and so to safeguard the defendant as fully as possible in the original proceedings. The rule adopted is derived from Article 37 (2) of the Italian Code of Civil Procedure, by virtue of which the court must of its own motion examine whether it has jurisdiction where the defendant is a foreigner and does not enter an appearance. The second paragraph of Article 20 is also designed to safeguard the rights of the defendant, by recognizing the international importance of the service of judicial documents. The service of judicial documents abroad although governed differently in each of the Member States, can broadly be separated into two main systems. The German system is based on the cooperation of the public authorities of the place of residence of the addressee which have jurisdiction to deliver to him a copy of the instrument. A German court cannot in general give judgment in default of appearance unless it receives conclusive evidence that the instrument has been delivered to the addressee [2] [3]. The system contrasts with those in force in Belgium [4], France [4], Italy [4], Luxembourg [4] and the Netherlands [4] all of which are characterized by the 'desire to localize in the territory of the State of the forum all the formalities connected with the judicial document whose addressee resides abroad' [5]. Under the laws of these countries, service is properly effected, and causes time to begin to run, without there being any need to establish that the document instituting the proceedings has actually been served on its addressee. It is not impossible in these circumstances that, in some cases, a defendant may have judgment entered against him in default of appearance without having any knowledge of the action. The Hague Convention of 1 March 1954 on civil procedure, to which the six Member States are party, does not solve the difficulties which arise under such legislation. The Committee also tried to solve the problems arising when service is effected late, bearing in mind that the aim of the Convention is to promote, so far as possible the free movement of judgments. The search for a solution was obviously helped by the drafting at the tenth session of the Hague Conference on private international law of the Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters, which was opened for signature on 15 November 1965. This is the reason why the solution adopted in the second paragraph of Article 20 is only transitional. This provision summarizes Article 15 of the Hague Convention, which is in fact derived from Article 20 of this present Convention since the work of the Committee served as a basis for discussion at the meetings of the Special Commission which was established by the Hague Conference and which drew up the preliminary draft which was submitted for discussion at the tenth session.
Under the second paragraph of Article 20, where a defendant domiciled in one Contracting State is sued in the courts of another State and does not enter an appearance, the court must stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings in sufficient time to enable him to arrange for his defence or that all necessary steps have been taken to this end. This provision is based on the old Article 8 of the Netherlands Law of 12 June 1909, Stb No 141 [1]. The second paragraph of Article 20 requires first that notification of the proceedings has been given to the party who has not entered an appearance, that is either to him in person or at his domicile, and secondly that it has been delivered in sufficient time to enable the defendant to arrange for his defence. It does not require that the defendant should actually have been notified in sufficient time. The defendant must be responsible for any delay caused by his own negligence or by that of his relations or servants. The critical time is thus the time at which service was properly effected, and not the time at which the defendant received actual knowledge of the institution of proceedings. The question of 'sufficient time' is obviously a question of fact for the discretion of the court seised of the matter. The court may give judgment in default against a defendant if it is shown that ' all necessary steps have been taken' for him actually to have received in sufficient time the document instituting the proceedings. This means that a court will be able to give judgment in default against a defendant even if no affidavit can be produced to confirm service on the defendant of the document instituting the proceedings, provided it is shown that all the necessary approaches have been made to the competent authorities of the State in which the defendant is domiciled in order to reach him in sufficient time. Where necessary, it must also be shown that ' all the investigations required by good conscience and good faith have been undertaken to discover the defendant' [2]. As already stated, the second paragraph of Article 20 is only a transitional provision. Under the third paragraph of that Article, where the State of the forum and the State in which the document had to be transmitted have both ratified the new Hague Convention, the court seised of the matter will no longer apply the second paragraph of Article 20 but will be exclusively bound by Article 15 of the Hague Convention. Thus any possibility of conflict between Article 15 of the Hague Convention and the second paragraph of Article 20 of the EEC Judgments Convention is resolved in favour of the Hague Convention. The Committee also considered it important to ensure certainty and speed in the transmission of judicial documents. In order to achieve this, it considered as a possible solution the transmission of such documents by registered post. However, it did not adopt this system for, although it meets the requirement of speed, it does not offer all the necessary safeguards from the point of view of certainty. In the end the Committee adopted the system which is set out in Article IV of the Protocol. This Article simply adds a new method of transmission to those already provided for by the Hague Convention of 1 March 1954 on civil procedure, or by the agreements concluded between the Contracting States in application of that Convention. It corresponds moreover, to the facility provided for by Article 10 (b) of the new Hague Convention. Under the system adopted in the Protocol, documents can be transmitted by public officers in one Contracting State directly to their colleagues in another Contracting State, who will deliver them to the addressee in person or to his domicile. According to the assurances which were given to the Committee by representative of the 'Union internationale des huissiers de justice et d' officiers judiciaires , it will be easy for a public officer in one country to correspond with the appropriate public officer in another country. In case of difficulty it would moreover be possible for the officer in the State in which judgment was given to invoke the assistance of the national associations of public officers, or on the central office of the 'Union' which has its headquarters in Paris.
In the opinion of the Committee these arrangements meet the requirements of speed and certainty. Direct communication between public officers allows a considerable gain in time by avoiding any recourse to intermediary bodies such as Ministries for Foreign Affairs, Ministries of Justice or prosecutors' offices. Certainty is further guaranteed since if, for example, the address is incomplete or inaccurate, the officer in the State in which service is to be effected may well be able to undertake investigations in order to find the addressee. As for the linguistic difficulties which could arise in the context of a grouping of the six countries, these could be overcome by attaching to the instrument a summary in the language of the addressee. Like Article 10 (b) of the Hague Convention, Article IV of the Protocol allows a Contracting State to object to this method of transmission.
As there may be several concurrent international jurisdictions, and the courts of different States may properly be seised of a matter (see in particular Articles 2 and 5), it appeared to be necessary to regulate the question of /is pendens. By virtue of Article 21 , the courts of a Contracting State must decline jurisdiction if necessary of their own motion, where proceedings involving the same cause of action and between the same parties are already pending in a court of another State. In cases of lis pendens the court is therefore obliged to decline jurisdiction, either on the application of one of the parties, or of its own motion, since this will facilitate the proper administration of justice within the Community. A court will not always have to examine of. its own motion whether the same proceedings are pending in the courts of another country, but only when the circumstances are such as to lead the court to belive that this may be the case. Instead of declining jurisdiction, the court which subsequently seised of a matter may, however, stay its proceedings if the jurisdiction of the court first seised is contested. This rule was introduced so that the parties would not have to institute new proceedings if, for example, the court first seised of the matter were to decline jurisdiction. The risk of unnecessary disclaimers of jurisdiction is thereby avoided. Jurisdiction is declined in favour of the court first seised of the matter. The Committee decided that there was no need to specify in the text the point in time from which the proceedings should be considered to be pending, and left this question to be settled by the internal law of each Contracting State. The solution offered by this Article to the problem of related actions differs in several respects from that adopted to regulate the question of /is pendens, although it also serves to avoid the risk of conflicting judgments and thus to facilitate the proper administration of justice in the Community. Where actions are related, the first duty of the court is to stay its proceedings. The proceedings must, however be pending at the same level of adjudication, for otherwise the object of the proceedings would be different and one of the parties might be deprived of a step in the heirarchy of the courts. Furthermore, to avoid disclaimers of jurisdiction, the court may decline jurisdiction only if it appears that the court first seised has jurisdiction over both actions, that is to say, in addition, only if that court has not jurisdiction over the second action. The court may decline jurisdiction only on the application of one of the parties, and only if the law of the court first seised permits the consolidation of related actions which are pending in different courts. This last condition takes into account the specific problems of German and Italian law. In German law, consolidation is in general permitted only if both actions are pending in the same court. In Italian law, the constitution does not permit a court to decide whether it will hear an action itself or refer it to another court. It will, however, always be possible for a German or Italian court which is subsequently seised of a matter to stay its proceedings.
Finally, since the expression ' related actions' does not have the same meaning in all the Member States, the third paragraph of Article 22 provides a definition. This is based on the Belgian Judicial Code (Article 30). The Convention does not regulate the procedure for the consolidation of related actions. This is a question which is left to the internal laws of the individual States. This Article deals with a situation which will occur only very rarely, namely where an action comes within the exclusive jurisdiction of several courts. To avoid conflicts of jurisdiction, any court other than the court first seised of the action is required under Article 21 or Article 22 to decline jurisdiction in favour of that court. Article 24 provides that application may be made to the courts of a Contracting State for such provisional measures, including protective measures, as may available under the internal law of that State irrespective of which court has jurisdiction as to the substance of the case. A corresponding provision will be found in nearly all the enforcement conventions [1]. In each State, application may therefore be made to the competent courts for provisional or protective measures to be imposed or suspended, or for rulings on the validity of such measures, without regard to the rules of jurisdiction laid down in the Convention. As regards the measures which may be taken, reference should be made to the internal law of the country concerned.
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