| JENARD-MÖLLER REPORT 1988
98. Under Article 65, the three supplementary Protocols form an integral part of the Convention.
99. This Protocol corresponds to the Protocol annexed to the Brussels Convention. The provisions contained in Articles I , II, III and Vd of that Protocol are reproduced unmodified in Protocol I to the Lugano Convention. The provisions contained in Article Vc of the Protocol annexed to the Brussels Convention are not reproduced in this Protocol. Those provisions were inserted into the Protocol annexed to the Brussels Convention only to make it clear that the concept of 'residence' in the English text of the Convention for the European patent for the common market, signed at Luxembourg on 15 December 1975, should be deemed to have the same scope as the concept of domicile' in the Brussels Convention. Such provisions were, however, redundant in the Lugano Convention. The other provisions of the Protocol annexed to the Brussels Convention are reproduced in this Protocol with minor amendments most of which are due to the law in force in various EFTA Member States. Furthermore, the Protocol contains two Articles (Ia and Ib) which have no equivalent in the Protocol annexed to the Brussels Convention.
100. This Article contains a reservation asked for by Switzerland. It provides that Switzerland may declare, at the time of depositing its instrument of ratification, that a judgment given in another Contracting State shall neither be recognized nor enforced in Switzerland if the jurisdiction of the court which has given the judgment is based only on Article 5 (1) (place of performance of contract) of the Lugano Convention and if certain other conditions are met. As this head of jurisdiction is regarded by many States as the most commercially ...
For Switzerland the need for a reservation arose from the provisions of Article 59 of the Swiss Federal Constitution (9) which reserves the right for a person of Swiss domicile, whatever his nationality, to be sued over a contract in the courts of his domicile. Whilst some exceptions existed to this general principle, it became clear that a provision such as Article 5 (1) of the Convention could involve a conflict with the constitutional rule in Switzerland and make Swiss participation in the Convention impossible. The compromise reached limits the effect of the reservation to the minimum necessary. 101. In the first place, any reservation will only apply if the defendant was domiciled in Switzerland at the time of the introduction of the proceedings. In the application of the reservation the question of domicile will be determined and acknowledged in accordance with the general principles and rules of the Convention. However, a company or other legal person is considered to be domiciled in Switzerland only if it has its registered seat and the effective centre of activities in Switzerland. The reservation will thus not apply if the effective centre of activities of a company or other legal person is outside Switzerland even if the company or other legal person has its registered seat in Switzerland. Furthermore, the reservation will never apply unless the company or legal person concerned has its registered seat in Switzerland. Secondly, recognition and enforcement may only be refused under the reservation if the jurisdiction of the court which has given the judgment was based solely on Article 5 (1). If, for example, a defendant domiciled in Switzerland were to submit to the jurisdiction in the other Contracting State the reservation would not apply, because in that event jurisdiction would not have been based solely on Article 5 (1), but also on Article 18. Equally, the reservation will not apply if the jurisdiction of the original court is based on agreement to confer jurisdiction over contractual disputes, since in that case jurisdiction would have been derived from Article 17. Thirdly, the reservation will not apply unless the defendant raises an objection to the recognition and enforcement of the judgment in Switzerland. The objection must be raised in good faith. It was explained by the Swiss delegation that it was entirely possible under Swiss law for the defendant to waive the protection available under Article 59 of the Constitution and that this waiver could validly be made at any time. Thus this waiver can be made even before Switzerland has made any declaration. This is reflected' in the text of the Article by the words 'the declaration foreseen under this paragraph'. It will therefore possible for persons contracting with persons enjoying Swiss domicile to stipulate a waiver the protection provided for in Article 59 of the Swiss Federal Constitution which would otherwise be available. An agreement between the parties on the waiver of such protection could be made orally or in writing as long as there is sufficient proof that the waiver has been made. In the event that such an agreement has been made, or if the Swiss court is otherwise satisfied as a matter of fact that the defendant has waived his rights then recognition and enforcement will not be refused in Switzerland even if a reservation has been made. Fourthly, the reservation will not apply to contracts in respect of which, at the time recognition and enforcement is sought, a derogation has been granted from Article 59 of the Swiss Federal Constitution. The Swiss Government is obliged to communicate such derogations to the signatory States and the acceding States. Fifthly, the Swiss delegation has declared that a reservation envisaged in this Article will not apply to contracts of employment. Thus Switzerland will in no event refuse the recognition or enforcement of a judgment given in a matter relating to an individual contract of employment on the ground that the jurisdiction of the court which has given the judgment is based only on the second part of Article 5 (I) of the Convention. Finally, any declaration made by Switzerland under this Article is to expire on a fixed date, i.e. on 31 December 1999. If, by that time, the Swiss Federal Constitution has not been amended so as to remove the constitutional difficulty, one possibility would be for Switzerland to consider denouncing the Convention, and become a party to it again when the constitutional difficulty has been removed. 102. If Switzerland makes the reservation provided for in this Article it will be open to other Contracting States to reciprocate the effect of that reservation by refusing to enforce judgments originating in Switzerland if the jurisdiction of the Swiss court is based solely on Article 5 (1) of the Convention and if conditions corresponding to those mentioned in Article la of the Protocol are fulfilled.
In countries applying the ' dualist' system the question of reciprocity will be dealt with at a legislative level, thus settling the question of reciprocity in a general manner. In those countries where the ' monist' system exists it is for the courts or other authorities to decide on the question of reciprocity. For instance in France, where the monist' system exists , a treaty, according to the French constitution , has a higher level than law provided that the treaty is applied in a reciprocal manner. If the question of whether a treaty is applied in a reciprocal manner is raised before a court and the answer is not clear, the judge will submit the question to the Ministry of Foreign Affairs which is competent for the interpretation of treaties. As far as the aspect of application of Article 7 of the Treaty establishing the European Economic Community is concerned (non-discrimination on grounds of. nationality), the judge in a Community Member State can, if the question arises before him , submit it to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EEC Treaty. From the discussions it is apparent that certain States will not reciprocate.
103. This Article provides that any Contracting State may, by a declaration made at the time of signing or deposit of its instrument of ratification or accession , reserve the right not to recognize and enforce judgments given in other Contracting States if the jurisdiction of the court of origin is based, pursuant to Article 16 (1) (b), exclusively on the domicile of the defendant in the State of Origin. This provision has been commented on above (see point 53).
104. This Article reproduces Article IV of the Protocol annexed to 'the Brussels Convention. The declaration referred to in paragraph 2 of this Article will however, not be made to the Secretary-General of the Council of the European Communities but to the depositary of the Lugano Convention.
105. Under Austrian, Spanish and Swiss law, as under German law, the function performed by an action on a warranty or guarantee or any other third party proceedings is fulfilled by means of third party notices. A rule analogous to that contained in Article V of the Protocol annexed to the Brussels Convention (see Jenard report, page 27, comments on Article 6 (2)) has accordingly been applied to Austria, Spain and Switzerland in this Article. Unlike the case of Austria, the Federal Republic of Germany and Spain, it has not been possible to refer to a single legislative source in Swiss law. Provisions on third-party notices are to be found both in the federal law of civil procedure and in the 26 cantonal codes of civil procedure. Third party intervention in proceedings is not governed by explicit rules in the Spanish legal system and the want of proper procedures is the source of procedural uncertainty. This legal hiatus has been severely criticized in the works of legal experts, who have recommended that it be remedied in the near future. However, this has not prevented acceptance of third party proceedings in some fields of jurisprudence or in civil laws governing certain specific cases, e.g. Article 124 (3) of Law No 11 of 20 March 1986 on patents and Article 1482 (*) of the Civil Code, regarding eviction. Generally speaking, it is the latter rule which is applicable in cases of non-voluntary third party proceedings; in the negotiations between the Member States of the European Communities and those of the European Free Trade Association, it was therefore judged advisable to include it in Article V of Protocol No I, ...
106. In Iceland and Norway administrative authorities are, as in Denmark, competent in matters relating to maintenance. Thus Iceland and Norway have been included in this Article in addition to Denmark. 107. In Finland, for historical reasons the 'ulosotonhaltijal overexekutor' (regional chief enforcement authority) is competent for protective measures referred to in Article 24 of the Lugano Convention. Furthermore, a documentary procedure for collecting debts based on a promissory note or a similar document, as well as some other summary proceedings e.g. eviction, take place before that authority. These proceedings are an optional alternative to court proceedings. The 'ulosotonhaltijal overexekutor' is clearly not a court but an administrative authority, which in the aforementioned cases plays a judicial role. The abolition of the 'ulosotonhaltija/ overexekutor' is envisaged and its functions as far as civil and commercial matters are concerned will be transferred to the courts. In order to avoid any imbalance a second paragraph has been inserted in this Article according to which the expression ' court' in civil and commercial matters includes the Finnish ' ulosotonhaltija/ overexekutor
108. Following specific requests from the Icelandic Norwegian, Portuguese and Swedish delegations Iceland, Norway, Portugal and Sweden have been included in this Article.
109. This Article reproduces Article VI of the Protocol annexed to the Brussels Convention. The communication provided for in this Article will, however, not be made to the Secretary-General of the Council of the European Communities but to the depositary of the Lugano Convention.
110. Without uniform interpretation, the unifying force of the Lugano Convention would be considerably reduced. In addition, a considerable number, if not the majority, of its provisions are reproduced from the Brussels Convention, which posed a further problem. As we know, in order to avoid such differences of interpretation, the Community Member States concluded a Protocol on 3 June 1971 giving jurisdiction to the Court of Justice of the European Communities to rule on the interpretation of the Brussels Convention. When applying that Convention, the courts of the Community Member States must comply with the interpretation given by the Court of Justice. However, the Court of Justice could not assigned jurisdiction to interpret the Lugano Convention which is not a source of Community law. Furthermore, the EFTA Member States could not have accepted a solution according to which an institution of the Communities would, as a court of last resort, rule on the Lugano Convention. Nor was it conceivable to assign such jurisdiction to any other international court or to create a new court since inter alia the Court of Justice of the European Communities already had jurisdiction under the 1971 Protocol to rule on the interpretation of the Brussels Convention and conflicts of jurisdiction between international courts had at all events to be avoided. 111. The solution adopted to resolve this somewhat complex situation (i. e. ensuring uniform interpretation of the Lugano Convention while taking account of the powers of the Court of Justice of the European Communities as regards the interpretation of the Brussels Convention, many of the provisions of which were reproduced in the Lugano Convention) is based on the principle of consultation and not on judicial hierarchy. It was thus agreed that judgments delivered pursuant to the Lugano Convention or the Brussels Convention are to be communicated through a central body to each signatory State and acceding State and that meetings of representatives appointed by each such State are to be convened to exchange views on the functioning of the Convention. As regards legal technique it was decided that the provisions aiming at uniform interpretation should be included in a Protocol ...
112. The first recital in the preamble makes reference to Article 65 of the Lugano Convention. According to this Article, a Protocol 2 on the uniform interpretation of the Convention by the courts will form an integral part of the Convention. The second recital refers to the substantial link between the Lugano Convention and the Brussels Convention. As has already been mentioned, the Court of Justice of the European Communities has, under the Protocol of 3 June 1971 , been entrusted with jurisdiction to give rulings on the interpretation of the provisions of the Brussels Convention. A starting point for the negotiations for the conclusion of the Lugano Convention was that those provisions of the Brussels Convention which were to be substantially reproduced in the Lugano Convention should be understood in the light of these rulings given up to the date of opening for signature of the latter Convention. The working party which drafted the Convention was aware of all those rulings delivered up to that date. The intention was to arrive at as uniform as possible an interpretation where the provisions in question were identical in the two Conventions. On the other hand, insofar as a provision of the Brussels Convention as interpreted by the Court of Justice of the European Communities, e.g. Article 16 (I), was found not to be acceptable, it was not reproduced unmodified in the Convention (for judgments of the Court of Justice, see Chapter VI). The third. fourth and fifth recitals were included in the Preamble in order to stress the relevance of the rulings on the interpretation of the Brussels Convention given by the Court of Justice of the European Communities up to the time of the signature of the Lugano Convention. The sixth recital confirms the wish of the Contracting States to prevent, in full deference to the independence of the courts, divergent interpretations. 113. This Article relates only to decisions concerning provisions of the Lugano Convention. It provides that the courts of each Contracting Party shall when applying and interpreting that Convention pay due account to the principles laid down by any relevant decision delivered by courts of the other Contracting Parties concerning provisions of the Lugano Convention. The expression ' any relevant decision' means in this Article those decisions delivered by courts of the Contracting Parties which according to Article 2 (1), first indent, have been transmitted to a central body, i.e. judgments delivered by courts of last instance and other judgments of particular importance which have become final. 114. This Article does not explicitly refer to decisions concerning the application and interpretation of those provisions of the Brussels Convention which are substantially reproduced in the Lugano Convention. It must be remembered that the courts of the Community Member States are the only courts required to apply the Brussels Convention and that when they interpret provisions of that Convention, they must respect the judgments of the Court of Justice. The Community Member States were, however, not in a position to commit the Court of Justice, a separate institution, to pay due regard to judgments of national courts in EFT Member States. For their part, the representatives of the EFTA Member States thought that it would not be entirely fair to include a provision in the Protocol which expressly stipulated that the courts of these States had to take account not only of the decisions given by the courts of the other Contracting States but also of the judgments of the Court of Justice of the European Communities, while the latter would not be subject to any undertaking as regards the interpretation of the provisions of the Brussels Convention which were reproduced in the Lugano Convention. 115. It was, however, recognized that the courts of the Community Member States, when interpreting provisions of the Lugano Convention which are reproduced from the Brussels Convention, would understand those provisions in the same way as the identical provisions of the Brussels Convention and in accordance with the interpretations given in the rulings of the Court of Justice of the European Communities. It was therefore essential , in order to ensure as uniform an interpretation as possible of the Lugano Convention, that the courts of the EFTA Member States apply it in the same way as the courts of the Community Member States. But it was equally necessary for the Court of Justice, when interpreting provisions of the Brussels Convention which were reproduced ...
116. In order to achieve this twofold objective two Declarations accompany the Convention. In one of them the representatives of the Governments of the States signatories to the Lugano Convention which are members of the Communities declare that they consider as appropriate that the Court of Justice, when interpreting the Brussels Convention, pay due account to the rulings contained in the case law of the Lugano Convention. In the other, the representatives of the EFTA States declare that they consider as appropriate that their courts, when interpreting the Lugano Convention, pay due account to the rulings contained in the case law of the Court of Justice of the European Communities and of the courts of the Member States of the European Communities in respect of provisions of the Brussels Convention which are substantially reproduced in the Lugano Convention. At the request of the representatives of the EFTA States, a list and the contents of the judgments delivered by the Court of Justice when interpreting the 1968 Convention is given in this report (see Chapter VI). 117. As we have already said, it was agreed that a uniform interpretation of the common provisions of the Lugano and Brussels Conventions would be achieved by means of information and consultation. According to the first paragraph of this Article the Contracting States agree to set up system of exchange of information concerning judgments delivered pursuant to the Lugano Convention as well as relevant judgments under the Brussels Convention. The expression 'relevant judgments' means, in this context, those judgments delivered pursuant to the Brussels Convention which are relevant for the interpretation of the Lugano Convention as well. This system of exchange of information comprises:
The abovementioned central body will, according to paragraph 2 of this Article, be the Registrar of the Court of Justice of the European Communities. The Registrar has signified his agreement to this, provided that the detailed arrangements for the system of exchange of information, and in particular the question of the translation of judgments not drawn up in an official language of the Communities, are worked out with the Court after the Diplomatic Conference and that the department of the Court receive the necessary aid and budgetary support. The competent national authorities referred to in the first and third indent of paragraph I of this Article are to be designated by each Member State concerned. This system of exchange of information will however, not include every judgment delivered by a national court pursuant to the Lugano Convention or every relevant judgment delivered pursuant to the Brussels Convention. For the purposes of the objective which the Protocol is aiming at it will suffice that judgments delivered by courts of last instance and the Court of Justice as well as judgments of other courts which are of particular importance and have become final are transmitted to the central body referred to in this Article (paragraph 1 first indent). Only those judgments will thus be classified by the central body and communicated pursuant to the third indent of paragraph I of this Article. To the extent that the communication of documentation implies publication of translations and abstracts by the central body, it was agreed that such publication, in the interests of economy, could take a simplified form. 118. In order to ensure a uniform interpretation of the common provisions of the Lugano and Brussels Conventions, it was deemed necessary that representatives appointed by each signatory or acceding State meet to exchange views on the functioning of the Lugano Convention. To this end Article 3 provides that a Standing Committee composed of representatives appointed by each signatory ...
In this context it deserves to be emphasized that not only States which have already become parties to the Convention (either by ratifying it or by acceding to it), but also States which have signed the Convention but not yet become parties to it may appoint their representatives as members of the Standing Committee. This solution was adopted since a distinction between signatory and Contracting States would suggest that certain States might sign the Lugano Convention without any intention of ratifying it. Divergent views were expressed as to whether the Standing Committee should be composed judges or civil servants. It was decided that it would be for each State to appoint its representatives on the Committee. Thus, it may well be that certain States will appoint judges whereas other States may appoint civil servants or others. It goes without saying that each State is free to decide how and for which period of time anyone is appointed to represent it on the Committee. Because of the links between the Lugano Convention and the Brussels Convention, paragraph 3 of this Article provides that representatives of the European Communities (i.e. of the Commission the Court of Justice and the General Secretariat of the Council) and of EFTA may attend the meetings of the Committee as observers. If necessary, it will be for the Committee to establish its own rules of procedure. 119. The provisions of paragraph I of this Article concern the convocation and the tasks of the Standing Committee. As already mentioned, the meetings of the Committee will be convened at the request of a Contracting Party for the purpose of exchanging views on the functioning of the Convention. In this context it deserves to be emphasized that a meeting of the Committee cannot be convened at the request of a State which has only signed the Convention but not yet become a party to it, even though the Committee, according to Article 3 (2), will be composed of representatives appointed by each signatory State or acceding State. The task of convening the Committee has been entrusted to the depositary of the Convention. There are no limitations as to the questions relating to the functioning of the Convention which oblige the depositary to convene meetings of the Committee at the request of a Contracting Party. In view of the purpose of the Protocol , Article 4 provides that meetings of the Committee will be convened for the purpose of exchanging views in particular on the development of the case law as communicated under the first indent of Article 2 (1). The purpose of this provision is not, however to invest the Committee with the role of a higher body which would assess the judgments given by national courts. It is rather a body, which, by examining such judgments, would identify divergences of interpretation and, as far as possible foster uniformity in the interpretation of the Convention. Article 57 (1) of the Convention provides that it will not affect any conventions to which the Contracting States are or will be parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. According to Protocol No 3, provisions which govern jurisdiction or the recognition or enforcement of judgments and which are or will be contained in acts of the institutions of the European Communities will be treated in the same way as conventions referred to in Article 57 (1). Provisions which in relation to particular matters govern jurisdiction may, irrespective of whether such provisions are contained in' a convention or in a Community act, amount to a change of the rules of jurisdiction contained in the Convention without the agreement of all the Contracting Parties. Therefore paragraph I of this Article further provides that meetings of the Committee will be convened for exchanging views on the application of Article 57 of the Convention. Paragraph 2 of Protocol No 3 on Community acts makes provision for a similar procedure. Thus the Committee will provide a forum where views can be exchanged inter alia on the provisions governing jurisdiction in particular matters adopted or envisaged in Community acts. In the light of these exchanges of views it may appear that an amendment of the Convention would be appropriate. This may be the case if the Committee, when examining the case law communicated ...
This power of the Committee should not be confused with the right for any Contracting State under Article 66 of the Convention to request the revision of the Convention. The powers and procedures in that Article differ radically from those provided for in Article 4 (2) of the Protocol. recommendation made by the Committee is thus not to be assimilated with a request by a Contracting State under Article 67 of the Convention for a revision conference. Only a Contracting State but not the Committee may request the depositary of the Convention to convene a revision conference. Neither is a recommendation of the Committee a prerequisite for the right of a Contracting State to request the revision of the Convention.
120. This Protocol is in response to the problems which might arise from any provisions on jurisdiction and the recognition and enforcement of judgments appearing in Community acts. 121. The entirely justified concern of both Community and EFTA Member States has been vigorously expressed in regard to Community acts. Why is this? (a) For the Community Member States, it because they have, in a manner of speaking, a dual personality. They are sovereign States. But they are also members of the Communities and are thus bound, by virtue of this latter point, to comply with the obligations to which they have subscribed under the Treaties establishing the European Communities (ECSC EEC and Euratom). Under those Treaties, it is the Council which is competent to adopt Regulations and Directives which in specific matters may possibly concern jurisdiction and the recognition and enforcement of judgments, according to the requirements of those Communities (10). The concern of these States was threefold:
(b) For the EFTA Member States, because they feared that the guarantees offered them by the Lugano Convention regarding jurisdiction and the recognition and enforcement of judgments could, in certain areas, be practically wiped out by a Community act. In particular the representatives of the EFTA Member States voiced the fear that the protection guaranteed by the Lugano Convention, particularly by Article 3, to defendants domiciled in an EFTA Member State might be undermined by a Community act. Such defendants might thus be treated differently from defendants domiciled in a Community Member State, or even be put in the same situation as defendants domiciled in third States. For example, for the representatives of these States it was inconceivable to accept that it should be possible for a person domiciled in the territory of an EFTA Member State (e. Norway) to be required to appear before the courts of a Member State of the Communities (such as France) on the basis of a Community act which they had played no part in drawing up and on the basis of a criterion of jurisdiction not provided for in the Lugano Convention. In any event, for these States , it was unacceptable that it should be possible for a judgment delivered on the basis of such a rule of jurisdiction to be recognized and enforced in their territory under the Lugano Convention. These fears would seem to be as well founded as those of the Member States of the Communities. In short, for the EFTA Member States, the inclusion of rules of jurisdiction and of recognition and enforcement of judgments in Community acts could, in the absence of any correcting mechanism be regarded empowering the Community Member States to amend the Lugano Convention unilaterally. 122. The question for the authors of the Convention was how to respond to these various concerns, all equally justified, and to work out a solution that could be accepted by all the Contracting Parties. We shall try and answer two questions, the problem having been resolved: Why was it possible to solve the problem? How was it solved? It was possible to respond to this concern because there existed on both sides a conviction or, one might prefer to say, a deep awareness that despite its difficulties the problem posed could and had to be resolved, in accordance with the principles of public international law, because of the fundamental objectives of the Lugano Convention , i.e. the granting of guarantees to a defendant domiciled in the territory of a Contracting State and the free movement of judgments. In addition, it emerged during the discussions that despite its theoretical aspect the problem had only a very relative impact in practice; thus the Member States of the Communities stressed the fact that in 30 years no Community act containing provisions on jurisdiction had been adopted. It should however be noted that a draft Regulation on the Community trade mark containing such jurisdiction rules is currently in preparation. Also, some Community Member States made it clear that for practical reasons they were not in favour of Community acts including provisions relating to jurisdiction and to the recognition and enforcement of judgments. For these States, the issue had to be settled by the Brussels Convention, even if that meant its being revised amended or supplemented, since for the practitioner (lawyers, judges, and others) this Convention constituted a Community code which was becoming well known. If these provisions were scattered throughout numerous Community instruments it would weaken the scope of this code and make it more difficult to apply. These States were well aware of the importance that Community acts might have in this matter and they considered that any resort to these instruments, in the areas in question, should continue to be entirely exceptional. 123. How was the problem resolved? The solution is to be found in Protocol 3 and in the Declaration by the Member States of the Communities which supplements it. What is involved in this solution that has given satisfaction to both sides? Protocol 3 and the Declaration supplementing it form a whole. (a) Protocol 124. In paragraph , for the purposes of the Lugano Convention, Protocol No treats Community acts in the same way as the conventions which have been concluded on particular matters and whose effect on the Lugano Convention is determined by Article 57 of the Convention (see points 79 to 83). In the view of the representatives of the Community Member States, there is no difference, except as regards the way they were drawn up, between these two types of instrument. They pointed out that if the EFTA Member States were willing to entertain the possibility for the States party to the Lugano Convention of the rules of that Convention being amended by conventions concluded in particular areas (transport etc.) they could also agree to the Community amending the Convention by means of Community acts. These representatives also stressed that to be approved a Community act required in principle the agreement of the 12 Member States whereas a convention on a particular matter whose rules could depart from those of the Lugano Convention, could be concluded between two States only. In their view, there was accordingly no substantive difference between the two types of instrument: conventions on particular matters and Community acts. The representatives of the EFTA Member States were able to accept this view only for the purposes of this Convention and in conjunction with paragraph 2 of Protocol 3 and the Declaration supplementing it (see point 127 below). They also said that their States had no wish to obstruct the Communities' proper and specific demands that they preserve a certain freedom to develop Community law. 125. What are the consequences of paragraph 1 of Protocol 3 which, for the purposes of this Convention, treats Community acts in the same way as conventions concluded on particular matters? It will be possible for a person domiciled in the territory of a Contracting State (such as Switzerland) to be summoned to appear in the territory ...
A judgment handed down by a court in a Community Member State which has jurisdiction by virtue of the Community act which derogates as regards jurisdiction, from the Lugano Convention will be recognized and enforced in the other Community Member States. However recognition and enforcement may be refused under the conditions laid down in Article 57 (4), e. in an EFTA Member State where the person against whom recognition or enforcement of the decision is being sought is domiciled, unless such recognition and enforcement are permitted under the law of the State. It should be noted that paragraph I of the Protocol refers only to Community acts and not to the legislation of the Community Member States where this has been harmonized pursuant to those acts , in this case by Directives. The assimilation of Community acts to conventions concluded on particular matters can only refer to an act which is equivalent to such a convention and cannot therefore extend to national legislation. Moreover, if a national legislation, departing from a Directive, were to introduce rules of jurisdiction derogating from the Lugano Convention the situation would be different, i.e. it would be a question of the responsibility of the State which had taken such measures. As explained above, the representatives of the EFTA Member States were able to agree to Community acts being treated in the same way as conventions concluded on particular matters only subject to a Declaration by the Community Member States that they will comply with the rules on jurisdiction and recognition and enforcement of judgments established by the Lugano Convention (for comments on that Declaration , see point 127 below). 126. Paragraph 2 of Protocol 3 refers to the case where notwithstanding the precautions taken, in the view of one of the Contracting Parties, a provision of a Community act is not compatible with the Lugano 'Convention. For example, this is the situation that might arise if the Community act provided for the jurisdiction of the court of the plaintiffs domicile vis-à-vis a defendant who was domiciled outside the Community and therefore in an EFTA Member State. Paragraph 2 has the effect of a pactum de negotiando. If one of the Contracting Parties considers there is incompatibility between the Community act and the Lugano Convention, negotiations will be initiated to amend, if necessary, the Lugano Convention. To this end the review procedure provided for in Article 66 of the Lugano Convention will apply without prejudice to the possibility of a meeting of the Standing Committee set up by Article 3 of Protocol 2 being convened to hear this request in accordance with Article 4 of that Protocol. Negotiations will have to begin immediately to establish rapidly whether or not there is any need to amend the Lugano Convention. Paragraph 2 contains only an undertaking to contemplate an amendment rather than actually to amend the Convention. Moreover, paragraph 2 of Protocol 3 does not contain any undertaking, nor could it, to contemplate an amendment to a Community act. Such negotiations would lie outside relations between the States party to the Convention and should be undertaken with the Community institutions, as Community acts fall within the competence of the latter. It should be noted that the procedure laid down in paragraph 2 could be instigated equally well by a Community Member State or by an EFTA Member State. An EFTA Member State will be able in particular to request the amendment of the Lugano Convention to avoid derogating measures being taken through a Community act in respect of persons domiciled in its territory. On the other hand, a Community Member State could have an interest in adapting the Lugano Convention so that judgments delivered in its territory can be recognized and executed in all EFTA Member States, to which Article 57 (4) might prove an obstacle. 127. Protocol 3 is accompanied by an important Declaration by the Community Member States. This unilateral Declaration represents an essential element of the solution adopted, the other two being the placing of Community acts on the same footing as conventions on particular matters and the undertaking to negotiate if there is any divergence between a Community act and the Lugano Convention.
The Declaration is important because the Community Member States, without forgetting that they belong to the Communities and with due respect for its institutions: (a) take into consideration the undertakings which they have entered into with regard to the EFTA Member States. For those States the Lugano Convention is therefore an instrument to be complied with. On their side there is therefore what was regarded as a ' best efforts ' clause aimed at avoiding as far as possible any divergence between the provisions of Community acts and those of the Lugano Convention; (b) indicate their concern not to jeopardize the unity of the legal system established by the Lugano Convention. This is an obvious concern if we consider that the Lugano Convention, through rules based firmly on the Brussels Convention, is intended to guarantee the free movement of judgments among the great majority of West European States, i.e. including judgments delivered by the courts of the Member States of the Communities; (c) the Community Member States consequently undertake, when drafting Community acts, to take all the steps in their power to ensure that the rules contained in the Lugano Convention are complied with, particularly as regards the protection which the Convention gives a defendant domiciled in a Contracting State. The result is that when a Community act is discussed in the Council of the Communities, particular attention will have to be paid by each of the Member States to the rules of the Lugano Convention. To sum up, the Declaration represents a moral and political undertaking, made in good faith by the Community Member States, to keep intact the efforts towards unification which are being made by the Lugano Convention. 128. The questions raised by Community acts were amongst the most difficult with which the drafters of the Lugano Convention had to deal. A solution was reached thanks to the constructive will of the representatives of all the States concerned. This compromise solution appears to us to allay the concern shown on both sides. To summarize, it may be said to be a three-storey edifice: (a) it places Community acts on the same footing as conventions on particular matters, which corresponds to the wishes of the Community Member States; (b) the Community Member States have given a unilateral undertaking to make every effort to ensure that the unity of the legal system established by the Lugano Convention is not put in jeopardy, which satisfies the EFTA Member States; ( c) as a corrective, there is the undertaking to seek a negotiated solution in the case of a divergence between a Community act and the Lugano Convention. As we have stated, this satisfies both sides. The compromise thus appears to be perfectly balanced.
129. The Lugano Convention is supplemented by three Declarations. The first concerns Protocol 3 which relates to Community acts (see points 120 to 128) and the two others Protocol 2 on the uniform interpretation of the Convention (see points 110 to 119).
130. The Protocol of 3 June 1971 confers on the Court of Justice of the European Communities jurisdiction to rule on the interpretation of the Brussels Convention. Article 30 of the Accession Convention of 9 October 1978 (Denmark, Ireland, United Kingdom) provides that the Court of Justice also has jurisdiction to rule on the interpretation of that Convention. Article 10 of the Convention of 25 October 1982 on the accession of Greece contains a similar provision. As at 1 June 1988 the six original Member States of the Communities together with Denmark, Ireland and the United Kingdom are parties to the Protocol. On the scope of the Protocol, reference should be made to the Jenard report (pp. 66 to 70) and the Schlosser report (paragraphs 255 and 256). It should be noted, however, that the Protocol makes provision for two forms of reference: reference for a preliminary ruling and reference in the interests of the law. The latter possibility has not so far been used. Reference for a preliminary ruling means that a national court required to rule on a question of interpretation of the Convention or the Protocol refers the matter to the Court of Justice and stays its proceedings, pending the latter s decision. Since the Protocol came into force on 1 September 1975, nearly 60 judgments have been handed down by the Court (see point 3 below) and a number of case are currently pending (see point 4 below). As stated in the comments on Protocol 2 (see points 112 and 116), in the negotiations on the Lugano Convention it was agreed that the provisions of the Brussels Convention should be construed as interpreted by the Court of Justice and that the report would mention the various judgments handed down by the Court. This Chapter meets the latter stipulation. The judgments are given not in chronological order but by reference to those Articles of the Brussels Convention, the Protocol annexed thereto and the 1971 Protocol which have been interpreted, since this seems a more convenient arrangement. This Chapter gives only the operative part of the decision and not, barring exceptions, the grounds. For it is not the purpose of this report to study the judgments of the Court of Justice but merely to indicate how it has interpreted a number of Articles. (1) Application of the Convention 131. National procedural laws are set aside in the matters governed by the Convention in favour of the provisions thereof (judgment of 13 November 1979 in Case 25/79 Sanicentral v. Collin (1979) ECR 3423-3431). (2) Article first paragraph: Civil and commercial matters 1. The Court held that the concept of civil and commercial matters must be regarded as autonomous. It ruled that a judgment given in an action between a public authority and a person governed by private law, in which the public authority has acted ' in the exercise of its powers , is excluded from the area of application of the Convention (judgment of 14 October 1976 in Case 29/76 L TU v. Eurocontrol (1976) ECR 1541- 1552). 2. It confirmed its decision in its judgment of 16 December 1980 in Case 814/79 Netherlands State v. Ruffer to the effect that the concept of civil and commercial matters does not include the recovery of the costs incurred by the agent responsible for administering public waterways, in this instance the Netherlands State, in the removal of a wreck pursuant to an international Convention ((1980) ECR 3807 -3822). 3. Contracts of employment come within the scope of the Convention (judgment of 13 November 1979 in Case 25/79 Sanicentral v. Collin (1979) ECR 3423-3431). (3) Article second paragraph (1) (a) Status of persons 1. Judicial decisions authorizing provisional measures in the course of proceedings for divorce ...
2. However, the Convention is applicable, on the one hand, to the enforcement of an interlocutory order made by a French court in divorce proceedings whereby one of the parties to the proceedings is awarded monthly maintenance allowance and, on the other hand, to an interim compensation payment payable monthly, awarded to one of the parties by a French divorce judgment pursuant to Article 270 et seq. of the French Civil Code. The Court held that the scope of the Convention extends to maintenance obligations and that the treatment of an ancillary claim is not necessarily linked to that of the principal claim. Ancillary claims come within the scope of the Convention according to the subject matter with which they are concerned and not according to the subject matter involved in the principal claim (judgment of 6 March 1980 in Case 120/79 L. Cavel v. J. De Cavel (1980) ECR 731). (b) Matrimonial relationships I. The term 'rights in property arising out of a matrimonial relationship' includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any proprietory relationships resulting directly from the matrimonial relationship or the dissolution thereof (judgment of 27 March 1979 in Case 143/78 J. De Cavel v. L. De Cavel (1979) ECR 1055- 1068). 2. An application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an action concerning a husband's management of his wife s property does not fall within the scope of the Convention if such management is closely connected with the proprietary relationship resulting directly from the marriage bond (judgment of 31 March 1982 in Case 25/81 C. H. W. v. G. J. H. (1982) ECR 1189- 1205) (2) Bankruptcy A decision such as that of a French civil court based on Article 99 of the French Law of 13 July 1967, ordering the . de facto manager of a legal person to pay a certain sum into the assets of a company must be considered as given in the context of bankruptcy or analogous proceedings (judgment of 22 February 1979 in Case 133/78 Gourdain v. Nadler (1979) ECR 733-746). (4) Article 5 (1): Contractual matters 1. The place of performance of the obligation in question is to be determined in accordance with the law which governs the obligations in question according to the rules of conflict of laws of the court before which the matter is brought (judgment of 6 October 1978 in Case 12/76 Tessili v. Dunlop (1976) ECR 1473- 1487). 2. If the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under Article 5 (1), irrespective of whether the formal conditions provided for under Article 17 have been observed (judgment of 17 January 1980 in Case 56/79 ZeIger v. Salinitri (1980) ECR 89-98). 3. The word 'obligation' contained in Article 5 (1) refers to the contractual obligation forming the basis of the legal proceedings, namely the obligation of the grantor in the case of an exclusive sales contract (judgment of 6 October 1976 in Case 14/76 De Bloos v. Bouyer). 4. The plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5 (I) of the Convention even when the existence of the contract is in dispute between the parties (judgment of 4 March 1982 in Case 38/81 Effer v. Kantner (1982) ECR 825- 836). 5. The obligation to be taken into account for the purposes of the application of Article 5 (1) of the Convention in the case of claims based on different obligations arising under a contract of employment as a representative binding a worker to an undertaking is the obligation which characterizes the contract, i.e. that of the place where the work is carried out (judgment of 26 May 1982 in Case 133/82 Ivenel v. Schwab (1982) ECR 1891- 1902). 6. The concept of matters relating to a contract is an autonomous concept. Obligations in regard to the payment of a sum of money which have their basis in the relationship existing between an ...
7. For the purpose of determining the place of performance within the meaning of Article 5 (l), the obligation to be taken into consideration in an action for the recovery of fees, commenced by an architect commissioned to prepare plans for the building of houses, is the contractual obligation actually forming the basis of the legal proceedings. In the case in point that obligation consists of a debt for a sum of money payable at the defendant's permanent address. The place of payment is determined by the law applicable to the contract (judgment of 15 January 1987 in Case 266/85 Shenavai v. Kreischer OJ No C 39 17. 1987, p. 3). 8. (a) On the question of whether a claim for compensation for sudden and premature termination of an agreement was a matter relating to a contract or to quasi-delict the Court of Justice replied that ' proceedings relating to the wrongful repudiation of an independent commercial agency agreement and the payment of commission due under such an agreement are proceedings in matters relating to a contract within the meaning of Article 5 (1) of the Brussels Convention (b) It repeated that matters relating to a contract should be regarded as an autonomous concept (judgment of 22 March 1983 in Case 34/82 Peters v. Znav). (c) Compensation for wrongful repudiation of an agreement is based on failure to comply with a contractual obligation. (d) Lastly, the Court referred to the Rome Convention of 19 June 1980 on the law applicable to contractual obligations which includes (Article 10) within the field of the law applicable to a contract the consequences of total or partial nonperformance of the obligations arising from it and hence the contractual liability of the party responsible for non-performance (judgment of 8 March 1988 in Case 9/87 Arcado v. Haviland, OJ No C 89 4. 1988, p. 9). (5) Article 5 (2): Maintenance The subject of maintenance obligations falls within the scope of the Convention even if the claim in question is ancillary to divorce proceedings (judgment of 6 March 1980 in Case 120/79 L. De Cavel v. J. De Cavel (1980) ECR 731).
1. The expression 'place where the harmful event occurred' must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it. The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage (judgment of 30 November 1976 in Case 21/76 Bier, Reinwater v. Mines de potasse d' Alsace (1976) ECR 1735- 1748). 2. (a) The term 'tort, delict or quasi-delict' in Article 5 (3) of the Convention must be regarded as an autonomous concept covering all actions which seek to establish the liability of a defendant and which are not related to a ' contract' within the meaning of Article 5 (1). (b) A court which has jurisdiction under Article 5 (3) to entertain an action with regard to tortious matters does not have jurisdiction to entertain that action with regard to other matters not based on tort (judgment of 27 September 1988 in Case 189/87 Kalfelis v. Schroder, OJ C 281 , 4. 11. 1988 , p. 18).
1. When the grantee of an exclusive sales concession is not subject either to the control or to the direction of the grantor, he cannot be regarded as being at the head of a branch, agency or other establishment of the grantor within the meaning of Article 5 (5) (judgment of 6 October 1976 in Case 14/76 De Bloos v. Bouyer (1976) ECR 1497- 1511).
(a) the concept of branch, agency or other establishment implies a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension; (b) the concept of ' operations' comprises: (1) actions relating to rights and contractual or non-contractual obligations concerning the management properly so-called of the agency, branch or other establishment itself such as those concerning the situation of the building where such entity is established or the local engagement of staff to work there (2) actions relating to undertakings which have been entered into at the abovementioned place of business in the name of the parent body and which must be performed in the Contracting State where the place of business is established (3) actions concerning non-contractual obligations arising from the activities in which the branch, agency or other establishment has engaged at the place in which it is established on behalf of the parent body (judgment of 22 November 1978 in Case 33/78 Somafer v. Ferngas (1978) ECR 2183-2195). 3. An 'independent commercial agent', in as much as he is free to arrange his own work and the undertaking which he represents may not prevent him from representing several firms at the same time and he merely transmits orders to the parent undertaking without being involved in either their terms or their execution, does not have the character of a branch (judgment of 18 March 1981 in Case 139/80 Blanckaert & Willems v. Trost (1981) ECR 819-830). 4. Article 5 (5) must be interpreted as applying to a case in which a legal person established in a Contracting State does not operate any dependent branch, agency or other establishment in another Contracting State but nevertheless pursues its activities there by means of an independent undertaking which has the same name and identical management, which negotiates and conducts business in its name and which it uses as an extension of itself (judgment of 9 December 1987 in Case 218/86 Schotte v. Rotschild, OJ No C 2 6. 1. 1988, p. 3). (7a) Article 6 (1): Co-defendants For the application of Article 6 (1) of the Convention there must exist between the various actions brought by the same plaintiff against different defendants a link such that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (judgment of 27 September 1988 in Case 189/87 Kalfelis v. Schroder, OJ No C 281 , 4. 11. 1988 , p. 18).
The Court ruled in favour of an autonomous concept of the sale of goods on instalment credit terms albeit implicitly in that it is not to be understood to extend to the sale of a machine which one company agrees to make to another company on the basis of a price to be paid by way of bills of exchange spread over a period. The jurisdictional advantage is to be restricted to buyers who are in need of protection (judgment of 21 June 1978 in Case 150/77 Bertrand v. Ott (1978) ECR 1431- 1447). It should be noted that this Article was amended in the 1978 Convention in line with the judgment. (9) Article 16 (1): Immovable property 1. The concept of 'matters relating to . . . tenancies of immovable property' must not be interpreted as including an agreement to rent under a usufructuary lease a retail business carried on in immovable property rented from a third person by the lessor. Article 16 (1) must not be given a wider interpretation than is required by its objective (judgment of 14 December 1977 in Case 73/77 Sanders Van Der Putte). 2. Article 16 (1) applies to alllettings of immovable property (judgment of 15 January 1985 in Case 241/83 Rosier v. Rottwinkel (1985) ECR 99- 129).
3. Article 16 (1) must be interpreted as meaning that in a dispute as to the existence of a lease relating to immovable property situated in two Contracting States (Belgium and the Netherlands in the case in point), exclusive jurisdiction over the property situated in each Contracting State is held by the courts of that State (judgment 6 July 1988 in Case 158/87 Scherens v. Maenhout and Van Poucke, OJ No C 211 , II. 8. 1988 , p. 7). (10) Article 16 (4): Patents See the judgment of 15 November 1983 in Case 288/82 Duijnstee v. Goderbauer (1983) ECR 3663-3679. (11) Article 16 (5): Applications to oppose enforcement Applications to oppose enforcement, as provided for under paragraph 767 of the German Code of Civil Procedure, fall, as such, within the jurisdiction provision contained in Article 16 (5) of the Convention; that provision does not however make it possible, in an application to oppose enforcement made to the courts of the Contracting State in which enforcement is to take place, to plead a set-off between the right whose enforcement is being sought and a claim over which the courts of that State would have no jurisdiction if it were raised independently. The Court held that this amounts to a clear abuse of the process on the part of the plaintiff for the purpose of obtaining indirectly from the German courts a decision regarding a claim over which those courts have no jurisdiction under the Convention (judgment of 4 July 1985 in Case 220/84 AS-Autoteile v. Malhe (1985) ECR 2267-2279). (12) Article 17: Agreements conferring jurisdiction (a) Where a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing under the first paragraph of Article 17 is fulfilled only if the contract signed by both parties contains an express reference to those general conditions and (b) in the case of a contract concluded by reference to earlier offers, which were themselves made with reference to the general conditions of one of the parties including a clause conferring jurisdiction, the requirement of a writing under the first paragraph of Article 17 is satisfied only if the reference is express and can therefore be checked by a party exercising reasonable care (judgment of December 1976 in Case 24/76 Colzani v. Ruwa (1976) ECR 1831- 1843). 2. (a) In the case of an orally concluded contract, the requirements of the first paragraph of Article 17 as to form are satisfied only if the vendor s confirmation in writing accompanied by notification of the general conditions of sale has been accepted in writing by the purchaser and See the judgment of 15 November 1983 in Case 288/82 Duijnstee v. Goderbauer (1983) ECR 3663-3679. (b) the fact that the purchaser does not raise any objections against a confirmation issued unilaterally by the other party does not amount to acceptance on his part of the clause conferring jurisdiction unless the oral agreement comes within the framework of a continuing trading relationship between the parties which is based on the general conditions of one of them, and those conditions contain a clause conferring jurisdiction (judgment of 14 December 1976 in Case 25/76 Segoura v. Bonakdarian (1976) ECR 1851- 1863). 3. (a) The first paragraph of Article 17 cannot be interpreted as prohibiting an agreement under which the two parties to a contract for sale, who are domiciled in different States, can be sued only in the courts of their respective States and (b) in the above case the Article cannot be interpreted as prohibiting the court before which a dispute has been brought in pursuance of such a clause from taking into account a set-off connected with the legal relationship in dispute (judgment of 9 November 1978 in Case 23/78 Meeth v. Glacetal (1978) ECR 2133- 2144). end of page No. C 189/102 Official Journal of the European Communities
(b) in judicial proceedings instituted after the coming into force of the Convention clauses conferring jurisdiction included in contracts of employment concluded prior to that date must be considered valid even in cases in which they would have been regarded as void under the national law in force at the time when the contract was entered into (judgment of 13 November 1979 in Case 25/79 Sanicentral v. Collin (1979) ECR 3423-3431). 5. If the place of performance of a contractual obligation has been specified by the parties in a clause which is valid according to the national law applicable to the contract, the court for that place has jurisdiction to take cognizance of disputes relating to that obligation under Article 5 (1) of the Convention, irrespective of whether the formal conditions provided for under Article have been observed (judgment of 17 January 1980 in Case 56/79 Zeiger v. Salinitri (1980) ECR 89- 98). 6. Article 17 must be interpreted as meaning that the legislation of a Contracting State may not allow the validity of an agreement conferring jurisdiction to be called in question solely on the ground that the language used is not that prescribed by that legislation (judgment of 24 June 1981 in Case 150/81 Elefanten Schuh v. Jacqmain (1981) ECR 1671- 1690). 7. Article 17 must be interpreted as meaning that where a contract of insurance, entered into between an insurer and a policy-holder and stipulated by the latter to be for his benefit and to enure for the benefit for third parties, contains a clause conferring jurisdiction relating to proceedings which might be brought by such third parties the latter, even if they have not expressly signed the said clause, may rely upon it (judgment of 14 July 1983 in Case 201/82 Gerling v. Amministrazione del tesoro dello Stato (1983) ECR 2503- 2518). 8. On bills of lading, the Court handed down a judgment to the effect that: (a) the bill of lading issued by the carrier to the shipper may be regarded as an ' agreement' evidenced in writing' between the parties within the meaning of Article 17. The jurisdiction clause applies if the parties have signed the bill of lading. If the clause conferring jurisdiction appears in the general conditions, the shipper must have expressly accepted it in writing. The wording of the bill of lading signed by both parties must expressly refer to the general conditions. However, if the carrier and the shipper have a continuing business relationship, which is governed as a whole by the carrier s general conditions, the clause conferring jurisdiction applies even without acceptance in writing; (b) the bill of lading issued by the carrier to the shipper may be regarded as an ' agreement' evidenced in writing , within the meaning of Article 17 vis-à-vis a third party holding the bill only if that third party is bound by an agreement with the carrier under the relevant national law and if the bill of lading, as ' evidence in writing' of the ' agreement' , satisfies the formal conditions- in Article 17 (judgment of 19 June 1984 in Case 71/83 Russ v. Nova Goeminne (1984) ECR 2417-2436). 9. The court of a Contracting State before which the applicant, without raising any objection as to the court' s jurisdiction , enters an appearance in proceedings relating to a claim for a set-off which is not based on the same contract or subject-matter as the claims in his application and in respect of which there is a valid agreement conferring exclusive jurisdiction on the courts of another Contracting State within the meaning of Article 17 has jurisdiction by virtue of Article 18 (judgment of 7 March 1985 in Case 48/84 Spitzley Sommer (1985) ECR 787-800). 10. The first paragraph of Article 17 must be interpreted as meaning that the formal requirements therein laid down are satisfied if it is established that jurisdiction was conferred by express oral agreement, that written confirmation of that agreement by one of the parties was received by the other and that the latter raised no objection (judgment of 11 July 1985 in Case 221/84 Berghoefer v. ASA (1985) ECR 2699-2710). 11. An agreement conferring jurisdiction is not to be regarded as having been concluded for the benefit of only one of the parties, within the meaning of the third paragraph of Article 17 of the Convention, where all that is established is that the parties have agreed that a court or the courts of the Contracting State in which that party is domiciled are to have jurisdiction. The Court held that clauses which expressly state the name of the party for whose benefit they were agreed and those which, whilst specifying the courts in which either party may sue the other give one of them a wider choice of courts must be ...
12. Article 17 must be interpreted as meaning that where a written agreement containing a jurisdiction clause and stipulating that the agreement can be renewed only in writing has expired but has continued to serve as the legal basis for the contractual relations between the parties, the jurisdiction clause satisfies the formal requirements in Article 17 if, under the law applicable the parties could validly renew the original contract otherwise than in writing, or if, conversely, either party has confirmed in writing either the jurisdiction clause or the group of clauses which have been tacitly renewed and of which the jurisdiction clause forms part, without any objection on the part of the other party to whom such confirmation has been notified (judgment of 11 November 1986 in Case 313/85 Iveco Fiat v. Van Hool, OJ No C 308 2. 12. 1986, p. 4). (13) Article 18: Submission to the jurisdiction (a) Article 18 applies even where the parties have by agreement designated a court in another State since Article 17 is not one of the exceptions laid down in Article and (b) Article 18 is applicable where the defendant not only contests the court jurisdiction but also makes submissions on the substance of the action, provided that, if the challenge to jurisdiction is not preliminary to any defence as to the substance, it does not occur after the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised (judgment of 24 June 1981 in Case 150/81 Elefanten Schuh v. Jacqmain (1981) ECR 1671- 1690). (See also the judgments of 22 October 1981 in Case 27/81 Rohr v. Ossberger 31 March 1982 in Case 25/81 C. H. W. v. G. J. Hand 14 July 1983 in Case 201182 Gerling v. Amministrazione del tesoro dello Stato. 2. The court of a Contracting State before which the applicant, without raising any objection as to the court s jurisdiction, enters an appearance in proceedings relating to a claim for a set-off which is not based on the same contract or subject matter as the claims in his application and in respect of which there is a valid agreement conferring exclusive jurisdiction on the courts of another Contracting State within the meaning of Article 17 of the Convention of 27 September - 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters has jurisdiction by virtue of Article 18 of that Convention (judgment of 7 March 1985 in Case 48/84 Spitzley v. Sommer (1985) ECR 787-800). (14) Article 19: Examination of jurisdiction Article 19 requires the national court to declare its own motion that it has no jurisdiction whenever it finds that a court of another Contracting State has exclusive jurisdiction under Article of the Convention, even in an appeal in cassation where the national rules of procedure limit the court s review to the grounds raised by the parties (judgment of 15 November 1983 in Case 288/82 Duijnstee v. Goderbauer (1983) ECR 3663-3679). (15) Article 21: Lis pendens 1. See the judgment of 7 June 1984 in Case 129/83 Zeiger v. Salinitri. 2. The term lis pendens used in Article 21 covers a case where a party brings an action before a court in a Contracting State for a declaration that an international sales contract is inoperative or for the termination thereof whilst an action by the other party to secure performance of the said contract is pending before a court in another Contracting State. The Court also ruled that the terms used in Article 21 to determine a situation of /is pendens are to be regarded as autonomous concepts (judgment of 8 December 1987 in Case 144/86 Gubisch v. Palumbo, OJ No C 8 13. l. 1988 , p. 3). (16) Article 22: Related actions Article 22 does not confer jurisdiction. It applies only where related actions are brought before courts of two or more Contracting States (judgment of 24 June 1981 in Case 150/81 Eleranten Schuh v. Jacqmain (1981) ECR 1671- 1690).
1. The inclusion of provisional measures in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect (judgment of 27 March 1979 in Case 143/78 J. De Cavel v. De Cavel (1979) ECR 1055- 1068). intended to be enforced without prior service do not come within the system of recognition and enforcement provided for by Title III of the Convention (judgment of 21 May 1980 in Case 125/79 Denilauler v. Couchet (1980) ECR 1553). 2. On the enforcement of judicial decisions authorizing provisional and protective measures see Article 27 below (judgment of 21 May 1980 in Case 125/79 Denilauler v. Couchet (1980) ECR 1553). 3. Article 24 may not be relied on to bring within the scope of the Convention provisional measures relating to matters which are excluded from it (judgment of 31 March 1982 in Case 25/81 C. H. W. v. G. J. H. (1982) ECR 1189- 1205). (18) Article 26: Recognition A foreign judgement rocognizes by virtue of Article 26 must in principle have the same effects in the State in which enforcement is sought as it does in the State in which the judgment was given. Subject, however, it should be added, to the grounds for non-recognition laid down in the Convention (judgment of 4 February 1988 in Case 145/86 Hoffmann v. Krieg. See also in the same case the Court' s interpretation of Articles 27 (1) and (3), 31 and 36, OJ No C 63 , 8. 3. 1988 6). (19) Article 27 (1): Public policy Recourse to the public policy clause, which is to be had only in exceptional cases, ... is in any event not possible where the problem is one of compatibility of a foreign judgment with a domestic judgment. That problem must be resolved on the basis of Article 27 (3), which covers the case of a foreign judgment irreconcilable with a judgment given between the same parties in the State in which enforcement is sought (judgment of 4 February 1988 in Case 145/86 Hoffmann v. Krieg, OJ No C 63 , 8. 3. 1988 , p. 6). (20) Article 27 (2): Rights of the defence 1. Judicial decisions authorizing provisional or protective measures, which are delivered without the party against which they are directed having been summoned to appear and which are intended to be enforced without prior service do not come within the system of recognition and enforcement provided for by Title III of the Convention (judgment of 21 May 1980 in Case 125/79 Denilauler v. Couchet (1980) ECR 1553). 2. Article 27 (2) must be interpreted as follows: (a) the words 'the document which instituted the proceedings ' cover any document, such as the order for payment (Zahlungsbefehl) in German law; (b) a decision such as the enforcement order (Vollstreckungsbefehl) in German law is not covered by the words ' the document which instituted the proceedings (c) in order to determine whether the defendant has been enabled to arrange for his defence as required by Article 27 (2) the court in which enforcement is sought must take account only of the time, such as that allowed under German law for submitting an objection (Widerspruch), available to the defendant for the purposes of preventing the issue of a judgment in default which is enforceable under the Convention; foreign judgment recognized by virtue of d) Article 27 (2) remains applicable where the defendant has lodged an objection against the decision given in default and a court of the State in which the judgment was given has held the objection to be inadmissible on the ground that the time for lodging an objection has expired; (e) even if a court of the State in which the judgment was given has held, in separate adversary proceedings, that service was duly effecte, Article 27 (2) still requires the court in which enforcement is sought to examine whether service was effected in sufficient time to enable the defendant to arrange for his defence; (f) the court in which enforcement is sought may as a general rule confine itself to examining whether the period, reckoned from the date on which service was duly effected, allowed the defendant sufficient time for his defence; it must, however, consider whether, in a particular case, there are exceptional circumstances such as the fact that, although service was duly effected, it was inadequate for the purposes of causing that time to begin to run;
3. The court of the State in which enforcement is sought may, if it considers that the conditions laid down by Article 27 (2) are fulfilled, refuse to grant recognition and enforcement of a judgment even though the court of the State in which the judgment was given regarded it as proven, in accordance with the third paragraph of Article of that Convention in conjunction with Article of the Hague Convention of 15 November 1965 that the defendant, who failed to enter an appearance, had an opportunity to receive service of the document instituting the proceedings in sufficient time to enable him to make arrangements for his defence (judgment of 15 July 1982 in Case 288/81 Pendy Plastic Products v. Pluspunkt (1982) ECR 2723-2737). 4. (a) Article 27 (2) is also applicable, in respect of its requirement that service of the document which instituted the proceedings should have been effected in sufficient time, where service was effected within a period prescribed by the court of the State in which the judgment was given or where the defendant resided exclusively or otherwise, within the jurisdiction of that court or in the same country as that court. (b) In examining whether service was effected in sufficient time, the court in which enforcement is sought may take account of exceptional circumstances which arose after service was duly effected. (c) The fact that the plaintiff was apprised which lie outside the scope of the Convention. of the defendant's new address , after service was effected, and the fact that the defendant was responsible for the failure of the duly served document to reach him are matters which the court in which enforcement is sought may take into account in assessing whether service was effected in sufficient time (judgment of 11 June 1985 in Case 49/84 Debaecker and Plouvier v. Bouwman (1985) ECR 1779- 1803 ). (21) Article 27 (3): lrreconcilable judgments A foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his obligations, arising out of the marriage, to support her is irreconcilable for the purposes of Article 27 (3) with a national judgment which has decreed the divorce of the spouses in question (judgment of 4 February 1988 in Case 145/86 Hoffmann v. Krieg, OJ No C 63, 8. 3. 1988 , p. 6). (22) Articles 30 and 38: Ordinary appeal The Court ruled in favour of an autonomous concept of ordinary appeal. An ' ordinary appeal' is constituted by any appeal: (a) which is such that it may result in the annulment or the amendment of the judgment which is the subject matter of the procedure for recognition or enforcement and (b) the lodging of which is bound, in the State in which the judgment was given, to a period which is laid down by the law and starts to run by virtue of that same judgment (judgment of 22 November 1977 in Case 43/77 Industrial Diamond v. Riva (1977) ECR 2175-2191). (23) Article 31: Enforcement 1. The provisions of the Convention prevent a party who has obtained a judgment in his favour in a Contracting State, being a judgment for which an order for enforcement under Article may issue in another Contracting State, from making an application to a court in that other State for a judgment against the other party in the same terms as the judgment delivered in the first State (judgment in Case 42/76 De Wolf v. Cox). 2. A foreign judgment the enforcement of which has been ordered in a Contracting State pursuant to Article 31 , and which remains enforceable in the State in which it was given, need not remain enforceable in the State in which enforcement is sought when, under the legislation of the latter State, it ceases to be enforceable for reasons In the case in point a foreign judgment ordering a person to make maintenance payments to his spouse by virtue of his obligations, arising out of the marriage, to support her is irreconcilable with national judgment which has decreed the divorce of the spouses in question (judgment of 4 February 1988 in Case 145/86 Hoffman Krieg, OJ No C 63, 8. 3. 1988 , p. 6). end of page No. C 189/106 Official Journal of the European Communities
(a) The second paragraph of Article 33 must be interpreted as meaning that the requirement to give an address for service laid down in that provision must be complied with in accordance with the rules laid down by the law of the State in which enforcement is sought or, if those rules do not specify when that requirement must be complied with no later than the date on which the enforcement order is served. (b) The consequences of an infringement of the rules concerning the choice of an address for service are, by virtue of Article 33 of the Convention, governed by the law of the State in which enforcement is sought, provided that the aims of the Convention are respected, i.e. the law of the latter State remains subject to the aims of the Convention; the penalty cannot therefore call into question the validity of the judgment granting enforcement or allow the rights of the party against whom enforcement is sought to be prejudiced (judgment of 10 July 1986 Case 189/85 Carron v. FRG, OJ C 209, 20. 8. 1986, p. 5). (25) Article 36: Enforcement procedure (a) Article 36 of the Convention excludes any procedure whereby interested third parties may challenge an enforcement order, even where such a procedure is available to third parties under the domestic law of the State in which the enforcement order is granted. (b) The Court held that the Convention has established an enforcement procedure which constitutes an autonomous and complete system including the matter of appeals. It follows that Article 36 of the Convention excludes procedures whereby interested third parties may challenge an enforcement order under domestic law. (c) The Convention merely regulates the procedure for obtaining an order for the enforcement of foreign enforceable instruments and does not deal with execution itself, which continues to be governed by the domestic law of the court in which execution is sought, so that interested third parties may contest execution by means of the procedures available to them under the law of the State in which execution is levied (judgment of 2 July 1985 in Case 148/84 Deutsche Genossenschaftsbank v. Brasserie du Pecheur (1985) ECR 1981- 1993). 2. The Article must be interpreted as meaning that the party who has failed to appeal against the enforcement order referred to in Article 31 (in the case in point within one month of service of the enforcement order) is thereafter precluded, at the stage at which the judgment is enforced, from relying upon a valid reason which he could have invoked in such appeal. That rule is to be applied ex officio by the courts of the State in which enforcement is sought. However that rule does not apply when it has the effect of obliging the national court to make the effects of a national judgment lying outside the scope of the Convention ( divorce) conditional on that judgment being recognized in the State in which the foreign judgment whose enforcement is at issue was given (judgment of 4 February 1988 in Case 145/86 Hoffman v. Krieg, OJ No C 63, 8. 3. 1988 , p. 6).
(a) The second paragraph of Article 37 must be interpreted as meaning that an appeal in cassation and, in the Federal Republic of Germany, a ' Rechtsbeschwerde' may be lodged only against the judgment given on the appeal. (b) That provision cannot be extended so as to enable an appeal to be lodged against a judgment other than that given on the appeal, for instance against a preliminary or interlocutory order requiring preliminary inquiries to be made (judgment of 27 November 1984 in Case 258/83 Brennero v. Wendel (1984) ECR 3971- 3984). (27) Article 38: Enforcement procedure 1. See (20) above on ' ordinary appeal'. 2. The second paragraph of Article 38 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court with which an appeal has been lodged against a decision authorizing enforcement, given pursuant to the Convention may make enforcement conditional on the provision of security only when it gives judgment on the appeal (judgment of 27 November 1984 in Case 258/83 Brennero v. Wendel (1984) ECR 3971- 3984).
1. (a) By virtue of Article 39 of the Convention, a party who has applied for and obtained authorization for enforcement may, within the period mentioned in that Article, proceed directly with protective measures against the property of the party against whom enforcement is sought and is under no obligation to obtain specific authorization. (b) A party who has obtained authorization for enforcement may proceed with the protective measures referred to in Article 39 until the expiry of the period prescribed in Article 36 for lodging an appeal and, if such an appeal is lodged, until a decision is given thereon. (c) A party who has proceeded with the protective measures referred to in Article 39 of the Convention is under no obligation to obtain, in respect of those measures any confirmatory judgment required by the national law of the court in question (judgment of 3 October 1985 in Case 119/84 Capelloni v. Pelkmans (1985) ECR 3147-3164). (29) Article 40: Enforcement procedure The court hearing an appeal by a party seeking enforcement is required to hear the party against whom enforcement is sought, pursuant to the first sentence of the second paragraph of Article 40 of the Convention, even though the application for an enforcement order was dismissed in the lower court simply because documents were not produced at the appropriate time. This is because the Convention formally requires that both parties should be given a hearing at the appellate level, without regard to the scope of the decision in the lower court (judgment of 12 July 1984 in Case 178/83 P. v. K. (1984) ECR 3033- 3043). (30) Article 54: Temporal application The effect of Article 54 is that the only essential for the rules of the Convention to be applicable to litigation relating to legal relationships created before the date of the coming into force of the Convention is that the judicial proceedings should have been instituted subsequently to that date. This is true even if an agreement conferring jurisdiction was concluded before the Convention came into force and could be regarded as void under the law applicable to it; the case in point concerns a contract of employment between a French employee and a German firm, to which French law was applicable (judgment of 13 November 1979 in Case 25/79 Sanicentral v. Collin (1979) ECR 3423-3431). (31) Articles 55 and 56: Bilateral Conventions As the first paragraph of Article 56 of the Convention states that the bilateral Conventions listed in Article 55 continue to have effect in relation to matters to which the Convention does not apply, the court of the State in which enforcement is sought may apply them to decisions which without coming under the second paragraph of Article are excluded from the Convention scope. This is the case as regards application of the German- Belgian Convention of 1958, which may continue to have effect in ' civil and commercial matters , irrespective of the autonomous construction placed upon that concept by the Court for the purposes of interpretation of the 1968 Convention (judgment of 14 July 1977 in joined Cases 9/77 and 10/77 Bavaria and Germanair v. Eurocontrol (1977) ECR 1517- 1527). (32) Article I, second paragraph , of the Protocol annexed to the Convention (Luxembourg) A clause conferring jurisdiction is not binding upon a person domiciled in Luxembourg unless that clause is mentioned in a provision: (a) specially and exclusively meant for this purpose; (b) specifically signed by that party; in this respect the signing of the contract as a whole does not suffice. It is not necessary for that clause to be mentioned in a separate document (judgment of 6 May 1980 in Case 784/79 Porta- Leasing v. Prestige International (1980) ECR 1517). (33) Article II of the Protocol annexed to the Convention 1. The expression 'an offence which was not intentionally committed' should be understood as meaning any offence the legal definition of which does not require the existence of intent and ...
Lower courts not sitting in an appellate capacity are not empowered to seek a preliminary ruling from the Court of Justice on a question of interpretationof the Convention. See the Court of Justice s order of 9 November 1983 in Case 80/83 Habourdin v. Italocremona (1983) ECR 3639-3641) and order of 28 March 1984 in Case 56/84 Yon Gallera v. Maitre ((1984) ECR 1769- 1772). end of page No. C 189/109 Official Journal of the European Communities THE LAW IN FORCE IN THE EFTA MEMBER STATES CONCERNING THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS A. AUSTRIA 134. Foreign judgments in civil and commercial matters are not recognized and cannot be enforced in Austria unless a treaty is in force with the State in which the judgment was given. However, foreign judgments concerning the status or legal capacity of persons are in most cases recognized even if there are no statutory provisions requiring such recognition. A foreign judgment which is neither recognized nor enforced in Austria may however have a certain evidential value there. The evidential value of a foreign judgment will depend on the circumstances in each particular case. B. FINLAND AND SWEDEN 135. The main principle of Finnish and of Swedish law is that foreign judgments are neither recognized nor enforced, unless there is a statutory provision to the contrary. Such statutory provisions are very few and they are almost always based on international conventions or agreements. Most of these provisions cover only decisions dealing with rather special matters, such as some aspects of international carriage, maintenance or civil liability in the field of nuclear energy. What has been mentioned above does, however, not apply to decisions relating to status and legal capacity. Those decisions are in most cases recognized even where there is no statutory provision ordering recognition. The fact that a foreign judgment is , in the absence of a statutory provision to the contrary, neither recognized nor enforced in Finland and Sweden does not mean that such a foreign judgment is completely without value in those countries. Firstly a foreign judgment can be invoked as evidence concerning certain facts or the contents of applicable foreign law. According to Finnish and Swedish law there is, generally speaking, no ' inadmissible' evidence at all. Within: the framework of this principle, the court may take into consideration the facts established in foreign proceedings and the foreign courts ' legal reasoning. Naturally this evidential value of a foreign judgment will depend on the circumstances in each particular case, especially on the degree of confidence in the foreign court. In some situations, particularly when according to the rules on conflict of laws the dispute is to be decided by the substantive law of the foreign court and the foreign court has applied the same law (lex fori), the foreign judgment may shift the burden of proof to the party challenging its outcome. If the judgment of a foreign court relates to immovable property within its jurisdiction there will at least in most cases - be no review of the substance of the dispute. Secondly, a foreign judgment may be of great value in Finland and Sweden also in those cases where Finnish and Swedish courts do not have jurisdiction and where a party nevertheless has an interest to rely upon the judgment in the country concerned, e.g. in order to obtain enforcement of a money judgment. If, for instance, a foreign court according to a forum-selection clause has exclusive jurisdiction for a dispute, Finnish and Swedish courts will usually decline jurisdiction. The judgment of the chosen foreign court (forum prorogatum) cannot, however, be enforced in Finland or Sweden as such. The plaintiff (the creditor) can in this situation sue in a Finnish or Swedish court invoking the foreign judgment. The court will, under such circumstances, most probably abstain from considering the merits of the case and base its decision on the foreign judgment. In any case there will be no complete review of the merits (revision au fond) of the foreign judgment. C. ICELAND 136. The main principle of Icelandic law is that foreign judgments are neither recognized nor enforced unless there is a statutory provision to the contrary. Such provisions have hitherto end of page No. C 189/112 Official Journal of the European Communities always been based on international conventions. However, foreign judgments concerning the status or legal capacity of a natural person are usually recognized even if there is no statutory provision ordering recognition. Foreign judgments which are neither recognized nor enforced in Iceland can, however, have a certain evidential value there. This is mainly due to the fact that there , generally speaking, no inadmissible evidence in Icelandic courts. The findings of fact in a foreign judgment are therfore likely to have a certain relevance. D. NORWAY 137. Foreign judgments in civil and commercial matters are not recognized and may not be enforced in Norway unless there is a treaty with the State in which the judgment in question was rendered. However, foreign judgments concerning the status or legal capacity of a natural person are recognized in Norway even if there is no treaty with the State in question , provided that certain criteria are fulfilled. As regards jurisdiction and enforcement of judgments based on a convention conferring jurisdiction, Norway operates a procedure similar to those applying in Finland and Sweden (see point 135 above). The remarks in point 135 above on the evidential validity of a foreign judgment also apply to Norway. E. SWITZERLAND 138. In Switzerland, the rules relating to international jurisdiction and the principles governing the recognition and enforcement of foreign judgments were until very recently scattered among severallegal sources, these being partly federal and partly cantonal. On a number of matters relevant to international jurisdiction , neither federal law nor cantonal law contained explicit rules. In such situations the principles of intercantonallaw were applied by analogy to international cases. On 18 December 1987, the Swiss Parliament passed a new Act on Private International Law. The new law, which will come into force on 1 January 1989, contains provisions on the international jurisdiction of Swiss courts and on the recognition and enforcement of judgments in civil and commercial matters. These provisions replace the present provisions of cantonal and federal law concerning jurisdiction and recognition and enforcement of judgments. Thus, the recognition and enforcement of judgments in civil and commercial matters will in its entirety be governed by federallaw, which prevails over the cantonal laws. According to the APIL, reciprocity will no longer be a formal requirement for obtaining recognition or enforcement of foreign judgments. In fact the effects of the reciprocity-test are replaced by the new system of control of jurisdiction of the State of origin. According to Article 25 of the APIL, a foreign judgment will be recognized in Switzerland; if the courts of the State of origin had jurisdiction according to the APIL; if the judgment is no longer subject to ordinary forms of review or if the judgment is final; if there is no ground for refusal mentioned in APIL Article 27. A foreign court is according to APIL Article 26 considered to have jurisdiction: if this follows from a provision in the APIL (e.g. Articles 112 to 115 as regards contracts and civil liability, and Articles 151 to 153 as regards company law) or, in the absence of such a provision, if the defendant had his domicile in the State of origin; in the case of dispute concerning a sum of money, if the parties have agreed that the court which has given the judgment had jurisdiction and this agreement was not invalid according to the provisions of the APIL in the case of a dispute concerning a sum of money, if the defendant has argued the merits without challenging the jurisdiction of the court or making any reservation thereon (exceptio incompetentiae internationalis), ...
Recognition of a judgment will, according to Article 27 paragraph 2,
also be refused at the request of a party against whom it is invoked if
that party furnishes proof: Under Article 29, paragraph I , a judgment which is recognized according
to Articles 25 to 27 of the APIL will be enforced in Switzerland, on the
application of any interested party. The application for enforcement must
be submitted to the competent authority of the canton where the foreign
judgment is invoked. The following documents must be attached to the application: In the proceedings for recognition and enforcement the party against whom enforcement is sought must be heard (Article 29 , paragraph 2).
EXISTING CONVENTIONS WHICH CONCERN THE EFTA MEMBER STATES 139. Apart from conventions dealing with particular matters, various conventions on recognition and enforcement of judgments exist between certain EFTA Member States and certain States of the European Communities. These are the conventions listed in Article 55 of the Lugano Convention between Denmark, Finland, Iceland, Norway and Sweden, the bilateral treaties concluded between Austria and Belgium, Spain, France, Italy, Luxembourg, the Netherlands, the Federal Republic of Germany and the United Kingdom, and the bilateral treaties concluded between the Swiss Confederation and Belgium , Spain, France, Italy, Norway and the Federal Republic of Germany and between Norway and the United Kingdom and the Federal Republic of Germany. In addition to conventions dealing with particular matters, various conventions on recognition and enforcement also exist between the EFTA Member States. These are the abovementioned convention between Denmark, Finland, Iceland, Norway and Sweden, the bilateral conventions concluded by Austria with Finland, Norway, Sweden and the Swiss Confederation and the bilateral convention between Sweden and the Swiss Confederation listed in Article 55 of the Lugano Convention. Thus, relations between Switzerland on the one hand, and Finland, Iceland and Norway on the other hand, as well as relations between Austria and Iceland, are hampered by the absence of such conventions. There are also differences between the various conventions. The convention between Switzerland and France is based on ' direct' jurisdiction; but all the others are based on ' indirect' jurisdiction. There are also various other differences between these conventions which need not be discussed in detail; they relate in particular to the determination of courts with jurisdiction and to the conditions governing recognition and enforcement. end of page No. C 189/115 Official Journal of the European Communities
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