| EXPLANATORY REPORT by Professor Fausto Pocar
128. The simplification of the procedures for the recognition and enforcement of judgments that fall within its scope is a fundamental aspect of the Lugano Convention, as it was of the Brussels Convention, where it was the stated primary objective. The purpose of Title III is to establish a procedure that facilitates the free movement of judgments as much as possible, and further reduces the obstacles that still exist, though the rules for the recognition and enforcement of decisions could already be regarded as extremely liberal in the Brussels Convention of 1968 [8] . There is no doubt that in a single judicial area, such as the one which is called for by the EC Treaty and which lends itself so well to extension to the EFTA countries referred to in the
Lugano Convention, a free circulation of judgments would be achieved by abolishing any exequatur proceeding in States bound by the Convention for judgments coming from other States bound by the Convention, so that such judgments could be enforced directly, without any need for verification. The ad hoc working party carefully considered this possibility, but decided that it was premature, in the light of the prerogatives of national sovereignty that still characterise the European States, an important element of which is the administration of justice, at least for the great body of judgments on civil and commercial matters [1]. The changes made to the rules on the recognition and enforcement of decisions are nevertheless based on the view that the intervention of the authorities of the State of enforcement can be scaled down further, and that the declaration of enforceability of a judgment can be reduced to little more than a formality. This conclusion is supported by an examination of the national case-law on the previous conventions, which shows that appeals filed against declarations of enforceability under the Brussels and Lugano Conventions are so small in number as to be almost negligible. 129. Title III of the Convention is accordingly founded on the principle that the declaration of enforceability must be in some measure automatic, and subject to merely formal verification, with no examination at this initial stage of the proceedings of the grounds for refusal of recognition provided for in the Convention. At this stage, therefore, the State of origin is trusted to act properly, an approach that also finds expression in other areas of the rules governing the European common market. Examination of the grounds for refusal of recognition is deferred until the second stage, at which a party against whom a declaration of enforceability has been obtained, and who decides to challenge it, must show that such grounds exist. This simplification of the procedure for the declaration of enforceability is accompanied by a review of the grounds for refusal, which are narrowed by comparison with the 1988 Convention, without however eroding the principle whereby the proceeding in the State of origin must be in keeping with the requirements of due process and the rights of the defence. 130. Regarding the judgments to be recognised and enforced, no change has been considered necessary, and Article 32 reproduces the corresponding provision in the 1988 Convention [2]. Thus all decisions given by a court or tribunal, whatever they may be called, are ‘judgments’, and the term also includes orders on costs or expenses made by an officer of the court, as happens in some European systems. It should be pointed out that the broad definition of ‘court’ in Article 62 means that Article 32 is likewise to be interpreted broadly with regard to the classification of the authority that has taken the decision submitted for recognition and enforcement. Thus the definition covers decisions taken by a court or tribunal, or a body or person acting in a judicial role, irrespective of whether the person taking the decision is formally described as a ‘judge’, as is the case with payment orders made by a clerk or registrar. The ad hoc working party did not consider it necessary to amend Article 32 in order to permit a broad interpretation that would take account of the proliferation of national procedures motivated by a desire to speed up legal proceedings. Provisional and protective measures also fall within the definition of ‘judgments’ if they are ordered by a court, provided that in the State of origin both parties were first given the opportunity to be heard. The Court of Justice has held that it is because of the guarantees given to the defendant in the original proceedings that the Convention is liberal in regard to recognition and enforcement, so that the conditions imposed by Title III are not fulfilled in the case of provisional or protective measures which are ordered or authorised by a court without the party against whom they are directed having been summoned to appear and which are intended to be enforced without prior service on that party [3] . It should be pointed out, lastly, that the decisions referred to in Title III include the judgments of the Court of Justice or of other European Community law courts [4] , since Article 1(3) specifies, as we saw above, that the term ‘State bound by this Convention’ may also mean the European Community. 131. There is no change with respect to the 1988 Convention in the structure of the section on the recognition of judgments, either as the principal issue or as an incidental question before any court of a State bound by the Convention (Article 33, see the Jenard report, pp. 43-44). It need only be added here that by virtue of the clarification in Article 1(3), the rules of the section on recognition also apply to the judgments of the Court of Justice of the European Communities when the question arises of their recognition in States that are not members of the European Community. The only changes that have been made in order further to reduce verification of foreign judgments are those that concern the grounds for refusal of recognition.
End of page Official Journal of the European Union C 319/36 (23.12.2009) 132. The European Commission proposed that the reference to the public policy of the State addressed as a ground for refusal of recognition should be deleted, as it had been applied only very rarely in the judgments of national courts with regard to the Brussels and Lugano Conventions, and the Court of Justice had never been asked to clarify its scope. Despite some support, this proposal did not secure sufficient backing in the ad hoc working party, where it was objected that the State addressed had to be able to protect its fundamental interests by invoking a principle such as public policy, even if the principle was rarely applied. In order to emphasise the exceptional nature of recourse to this ground for refusal, the provision now specifies that recognition may be refused only when it would be ‘manifestly’ contrary to public policy. 133. The concept of public policy is defined essentially by the national law of the State addressed. However, the Court of Justice has held that it has jurisdiction to review the limits within which a national court may invoke public policy to refuse recognition to a foreign judgment, and has ruled that recourse to the concept of public policy within the meaning of Article 34(1) can be envisaged only where recognition would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought, inasmuch as it infringes a fundamental principle; the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of that State [1]. But if the infringement of the legal order is not of this nature, recourse to public policy would ultimately conflict with the prohibition of review of a foreign decision on the merits which is laid down in Article 36 of the Convention [2]. The question here arises whether the concept of public policy in the Convention is a matter only of substantive public policy, or whether it also includes what is termed procedural public policy, or whether procedural public policy is relevant only to the extent that it falls under the guarantee of the right to a fair hearing in Article 34(2). The issue was thoroughly discussed by the ad hoc working party, and has also been the subject of considerable attention in the literature, where different positions have been taken. Here again it is worth recalling the findings of the Court of Justice: after observing that the right to be defended was one of the fundamental rights deriving from the constitutional traditions common to the Member States, and that it was guaranteed by the European Convention on Human Rights, the Court concluded that a national court was entitled to hold that a refusal to hear the defence of an accused person constituted a manifest breach of a fundamental right [3] . That judgment, however, was given in the circumstances of the case at issue, which involved a civil judgment requiring the payment of damages which was accessory to a criminal conviction in default of appearance, and cannot be interpreted to allow a party to rely under Article 34(1) on any infringement whatsoever of the rights of the defence, even an infringement that is not manifestly contrary to the public policy of the State addressed along the lines discussed by the Court in the same judgment. 134. According to the 1988 Convention, a judgment given in default of appearance is not to be recognised if the application or equivalent document instituting the proceedings before the original court was not ‘duly’ served on the defendant ‘in sufficient time to enable him to arrange for his defence’ [4] . This provision lays down two conditions, the first of which, that service should be duly effected, entails a decision based on the legislation of the State of origin and on the conventions binding on that State in regard to service, whilst the second, concerning the time necessary to enable the defendant to arrange for his defence, implies appraisals of a factual nature, as it has to be ascertained whether the period reckoned from the date on which service was duly effected allowed the defendant sufficient time to arrange for his defence [5] . Establishing that these tests are satisfied has given rise to some difficulties in practice, and has repeatedly necessitated the intervention of the Court of Justice, especially as regards the second test and the cumulative effect of the two of them. The Court has clarified several aspects of the provision in a positive manner, as will be seen, but it has also shown up deficiencies that might allow abuse by a debtor in bad faith. In particular, as regards the question whether the document was duly served, the Court has held that the two conditions have a cumulative effect, with the result that a judgment given in default of appearance may not be recognised where the document instituting the proceedings was not served on the defendant in due form, even though the defendant had sufficient time to enable him to arrange for his defence [6] , and has implied that for this purpose the court addressed may have regard to any irregularity of service, which is to be evaluated in the light of the law of the original court, including any international conventions that may be relevant. In relation to the timeliness of service, the Court has ruled that the fact that the defendant may have become aware of the proceedings is irrelevant if that happened after the judgment was given, even if legal remedies were available in the State of origin and the defendant did not avail himself of them [7] .
These judgments of the Court are based on a literal interpretation of the rule, with the evident intention of safeguarding the debtor, and have been the subject of some debate in the literature, which has emphasised that the creditor also needs to be protected, and that a debtor in bad faith should not be allowed to take advantage of merely formal and insignificant irregularities of service, or of a delay in service, to do nothing, trusting that when recognition of the judgment is sought he will be able to rely on the grounds for refusal laid down in the Convention. The debate was taken up by the ad hoc working party, which paid particular attention to this topic, seeking a solution that would balance the interests of the creditor and those of the debtor, and would not allow a debtor who was aware of proceedings against him to remain inactive and then to invoke a provision that would lead to refusal of recognition of the judgment on formal grounds. 135. For this reason Article 34(2) no longer expressly requires service in due form, but treats the question in connection with the opportunity given to the defendant to arrange for his defence, in the same way as the time that may be needed. Service must now be effected on the defendant ‘in such a way as to enable him to arrange for his defence’. This wording no longer requires merely that it be ascertained whether service was effected in accordance with the law applicable, but instead requires an assessment of fact, in which compliance with the rules governing service will play a role that is certainly important, but not decisive: the court in which recognition is sought will have to consider any other factors that may help it to establish whether, despite one or other irregularity, service was effected in such a way as to enable the defendant to arrange for his defence. Irregularity of service is consequently a ground for refusal under Article 34(2) only if it injured the defendant by preventing him from defending himself [1], and is not relevant if the defendant could have appeared in court and conducted his defence, conceivably even pleading the irregularity, in the State of origin. This assessment of fact is to be accompanied, as in the 1988 Convention, by another assessment of fact to establish whether the time allowed to the defendant to arrange for his defence was sufficient, for which purpose the court may consider any relevant circumstances, even if they arose after service was effected [2], and also the provision in Article 26(2), which the court of the State of origin is required to comply with in any event [3] . Article 34(2) does not require proof that the document which instituted the proceedings was actually brought to the knowledge of the defendant, but only that the period reckoned from the date on which service was effected was sufficient for the defendant to arrange for his defence [4] . 136. The protection given to a debtor by Article 34(2) in the event that service was irregular has been restricted in another way too: even if service was not effected in sufficient time and in such a way as to enable the defendant to arrange for his defence, the judgment is to be recognised if the defendant did not challenge it in the State of origin when it was possible for him to do so. The protection of a defaulting defendant in the event of defects in the notification should not extend to cases where the defendant remains inactive, and the rule seeks to overcome the problem by requiring him, if he can, to raise any objection in the State of origin, and to exhaust all remedies there, rather than keeping them in reserve for the following stage when the judgment has to be recognised in another State bound by the Convention. The exception thus made in Article 34(2) clearly excludes the interpretation given previously by the Court of Justice to the corresponding provision of the 1988 Convention [5] . 137. Article 34(2) has a general scope, and is intended to guarantee that the judgments admitted to free movement in the States bound by the Convention have been delivered in observance of the rights of the defence. The article consequently applies regardless of the defendant’s domicile, which may be in another State bound by the Convention, or in a State outside the Convention, or in the same State as the court of origin [6] . It should be noted, however, that Article III(1) of Protocol 1, inserted at the request of Switzerland, provides that Switzerland reserves the right to declare upon ratification that it will not apply the part of Article 34(2) which refers to the debtor’s failure to challenge the judgment in the State of origin when it was possible for him to do so. The Swiss delegation took the view that this exception was not sufficiently respectful of the defendant’s right to a fair hearing. Article III of Protocol 1 also provides, as is natural, that if Switzerland makes such a declaration, the other contracting parties will apply the same reservation in respect of judgments rendered by the courts of Switzerland. Contracting parties may make the same reservation in respect of a non-Convention State that accedes to the Convention under Article 70(1)(c).
138. No change was needed in Article 34(3), which sets forth the principle that a judgment delivered in a State bound by the Convention is not to be recognised if it is irreconcilable with a judgment given in a dispute between the same parties in the State addressed. The provision will apply only rarely, given the rules of coordination of jurisdiction in respect of lis pendens and related actions; it has a broad scope, and is intended to safeguard the rule of law in the State addressed, which would be disturbed by the existence of two conflicting judgments [1]. Judgments can thus be irreconcilable even if the disputes concerned have only the parties in common, and not the same subject-matter or the same cause of action [2]. Nor is it necessary, in order to prevent recognition, that the judgment in the State addressed must have been delivered prior to the foreign judgment. The question which of two judgments came first has got be considered, however, in order to decide which of two irreconcilable foreign judgments is to be recognised in the State addressed [3] . The 1988 Convention (Article 27(5)) dealt only with the recognition of a judgment given in a State bound by the Convention that was irreconcilable with an earlier decision delivered in a non-Convention State; Article 34(4) of the new Convention adds the case of a judgment given in a State bound by the Convention that is irreconcilable with an earlier judgment delivered in another State bound by the Convention, and puts it on the same footing. In cases of this kind the fact that the judgments are irreconcilable prevents recognition of the later one, but only if the judgments were delivered in disputes between the same parties and have the same subject-matter and the same cause of action, always provided of course that they satisfy the tests for recognition in the State addressed. If the subject-matter or the cause of action are not the same, the judgments are both recognised, even if they are irreconcilable with one another. The irreconcilability will then have to be resolved by the national court before which enforcement is sought, which may apply the rules of its own system for the purpose, and may indeed give weight to factors other than the order in time of the judgments, such as the order in which the proceedings were instituted or the order in which they became res judicata, which is not a requirement for recognition under the Convention. 139. As in the 1988 Convention, judgments delivered in a State bound by the Convention are generally to be recognised in the State addressed without any review of the jurisdiction of the court of origin. Article 35 repeats that there is to be no such review, and no application of the test of public policy to the rules on jurisdiction, but it also reproduces the exceptions that previously existed to the rule against review of the jurisdiction of the court of origin. It was proposed that the exceptions should be removed altogether, so as to eliminate any review of jurisdiction whatsoever [4] , but after careful consideration the ad hoc working party decided that this would be premature. There are exceptions, therefore, for infringement of the rules of jurisdiction in matters of insurance and consumer contracts or the rules of exclusive jurisdiction (Sections 3, 4 and 6 of Title II), for the case provided for in Article 68, and for the cases provided for in Article 64(3) and Article 67(4) [5] . It was discussed whether infringement of the rules of jurisdiction on the subject of individual contracts of employment should be added to these exceptions. It was decided that they should not, on the ground that in labour disputes the action is normally brought by the employee, with the result that the review, being an impediment to recognition, would in the majority of cases be an advantage to the employer in his position as defendant. 140. Article 27(4) of the 1988 Convention allowed recognition to be refused if the court of origin, in order to decide a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession (all matters outside the scope of the Convention), had applied a rule different from the rule of private international law of the State in which the recognition was sought; it was felt that this rule was now superfluous, not least because of the progress made in the harmonisation of private international law in these areas in the European Community, and in particular the fact that the provision was absent from the Brussels II Regulation. It has not been included in the new Convention, so that it will not be possible in future to rely on this ground of refusal, which was a vestige of the review of the merits of a foreign judgment. Review as to substance is entirely excluded by Article 36 of the Convention, which reproduces the wording of the corresponding provision in the earlier Convention [6] . 141. No change has been made to the rule that allows the court in which recognition is sought for a judgment delivered in another State bound by the Convention to stay the proceedings if an appeal has been lodged against the judgment in the other State. Article 37 reproduces Article 30 of the 1988 Convention, and does not require special comment (see the Jenard report, p. 46, and the Schlosser report, paragraphs 195-204).
142. Section 2 of Title III of the Convention, on enforcement, comprises a set of rules which, as already mentioned [1], have been greatly changed by the revision, in order further to simplify the procedures on the basis of which judgments are declared enforceable in the State addressed - and also recognised, if recognition is raised as the principal issue under Article 33(2), which refers to the procedures provided for in Sections 2 and 3 of Title III. The principle whereby enforcement is subject to a declaration of enforceability nevertheless remains unchanged, and is stated in Article 38 in the same terms as in Article 31 of the 1988 Convention. A declaration of enforceability can therefore be given only for a judgment already enforceable in the State in which it was delivered, and only upon application by an interested party [2]. Once declared enforceable, the judgment can be enforced in the State addressed; in the United Kingdom, however, a judgment must be registered for enforcement [3] . Article 1(3) makes it clear that the section on enforcement also applies to judgments of the Court of Justice of the European Communities when they are to be enforced in countries that are not Community Member States. Judgments of the Court of Justice are therefore to be enforced in those States in the same way as national judgments delivered in States bound by the Convention.
143. As previously, the Convention expressly indicates the courts or authorities competent in the States bound by the Convention to receive applications to have foreign judgments declared enforceable. They are now listed in an annex (Annex II), rather than in the body of the Convention, a change which simplifies the presentation of the procedure (regarding the reasons for moving the list of competent courts or authorities to an annex, see also the discussion of Article 77 below). It should be pointed out that Article 39(1) refers to a ‘court or competent authority’. The States bound by the Convention are therefore free to entrust the handling of this first stage of the proceedings to an authority that is not a court of law. All of them have in fact generally designated courts, but it may be noted that in the case of application for a declaration of enforceability of a notarial authentic instrument France and Germany have designated a notarial authority (the président de la chambre départementale des notaires) or a notary, while in the case of a maintenance judgment Malta has designated the court registry (Registratur tal-Qorti). These examples could well be followed by other countries, given the non-adversarial character of the proceeding and the merely formal nature of the checks that have to be carried out. 144. As regards the local jurisdiction of the courts designated, the 1988 Convention made reference to the place of domicile of the party against whom enforcement was sought, and, if he was not domiciled in the State in which enforcement was sought, to the place of enforcement. This arrangement offered the creditor the advantage that where there were several places of enforcement he could apply for just one declaration of enforceability, although he then had to go before several courts for enforcement. But it had the disadvantage that if the debtor’s domicile and the place of enforcement were not the same it obliged the creditor to go before two courts, first the court of the domicile and then the court of the place of enforcement. The ad hoc working party considered the issue, and despite some opinions to the contrary reaffirmed the desirability of defining internal jurisdiction directly in the Convention, so as to make it easier for a creditor to identify the appropriate court [4] . It considered that the best way to determine territorial jurisdiction with regard to each specific case was to give the creditor a choice between the place of the debtor’s domicile and the place of enforcement, allowing him to go directly before the court of the place of enforcement. Article 39(2) reflects this approach, and states that the local jurisdiction is to be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement. The wording means that it is no longer necessary to provide expressly for the case in which the debtor is domiciled in a non-Convention State, although of course in that case the creditor will have only the place of enforcement available. It was also suggested that for cases in which enforcement was requested against more than one party Article 39 should reproduce the rule of jurisdiction in Article 6(1), and provide for the local jurisdiction of the courts for the place where any one of them is domiciled. The ad hoc working party took the view, however, that where internal jurisdiction was involved it was better not to make rules for every specific aspect. The question of what is to be done where enforcement is sought against more than one party is consequently to be determined on the basis of the national law of each State bound by the Convention. 145. As in the 1988 Convention, the procedure for making the application is to be governed by the national law of the State addressed, taking account, however, of the rules laid down directly in the Convention. The Convention continues to provide that the applicant must give an address for service of process within the area of jurisdiction of the court applied to, and that if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, he must appoint a representative ad litem [5] .
The list of documents to be appended to the application has changed, however. Articles 46 and 47 of the 1988 Convention listed a number of documents which were intended to show that the judgment satisfied the requirements for recognition; but the new Article 40(3) refers to the documents listed in Article 53, which confines itself to calling for the production of a copy of the judgment which satisfies the conditions necessary to establish its authenticity, and a certificate regulated in the succeeding Article 54. Article 54 requires the competent authority of the State in which the judgment was delivered, at the request of any interested party, to issue a certificate using a form shown in Annex V to the Convention. 146. There was a great deal of discussion regarding the advisability of requiring the applicant to produce a certificate rather than actual documents. This arrangement is motivated by the general approach in favour of excluding any review of the foreign judgment at this first stage. The certificate meets the two objectives of simplifying the position of the creditor, who has to produce a single document, and of enabling the court addressed rapidly to pick out the information regarding the judgment that it needs in order to deliver the declaration of enforceability. It not infrequently happens that it is difficult for the court addressed to extract certain information rapidly and reliably from the judgment of the court of origin, in view of the language of the judgment and the different ways in which judicial documents are drafted in the various judicial systems of the States bound by the Convention. The certificate, as will be seen from the form in Annex V, must indicate the State of origin of the judgment, the court or other authority issuing the certificate, the court that delivered the judgment, the essential particulars of the judgment (date, reference number, parties, and, where judgment was given in default of appearance, date of service of the document instituting the proceedings), the text of the judgment (in the strict sense, i.e. only the full text of the operative part of the judgment), the names of any parties to whom legal aid has been granted, and a statement that the judgment is enforceable in the State of origin. The certificate will normally be issued by the court that delivered the judgment, but not necessarily so. The certificate merely states facts, without giving any information with regard to the grounds for refusal of recognition set out in Article 34 and 35 of the Convention, so that the certificate could well be issued by another person at the court, or by another authority authorised to do so in the State of origin (1). 147. The purpose of the certificate is to simplify the proceedings, and a creditor should not be required to produce a certificate when the judgment can be declared enforceable quickly even without it. The Convention therefore restates in relation to the certificate the provision previously laid down in Article 48 of the 1988 Convention in relation to the documentary evidence in support of the application that was provided for in that article [2]. Article 55(1) of the new Convention accordingly provides that if the certificate is not produced, the court addressed may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production. From this provision it is clear that the court may accept an incomplete certificate, or if necessary set a deadline for the production of a form completed in full. If there is no certificate, of course, or if the certificate is incomplete, the court addressed may also decide to refuse the application. There is no change to the previous rule governing the translation of the certificate, which is necessary only if the court requires it (Article 55(2)), and the exemption from any legalisation of all documents, including a document appointing a representative ad litem (Article 56) [3] .
148. The court or competent authority must decide without delay on an application lodged under the Convention, and if the formalities referred to in Article 53 are met, that is to say if the certificate and a copy of the judgment which satisfies the conditions necessary to establish its authenticity have been produced, it must declare the judgment enforceable. The wording of Article 41 leaves no doubt in this regard: it states that the judgment is to be declared enforceable ‘immediately’ on completion of these formalities. It appeared preferable to use the adverb ‘immediately’ rather than to lay down a precise deadline, as it would have been difficult to impose a penalty for delay in meeting the deadline; the formulation is therefore similar to that of the 1988 Convention, which for the first stage of the proceedings provided that the court addressed was to give its decision ‘without delay’, but did not lay down a definite time [4] . 149. Article 41 does not allow the court addressed to carry out any review to establish whether there are grounds for refusing recognition under Articles 34 and 35. The information that must be shown on the certificate is not designed for such a review, but is intended merely to facilitate the work of the court addressed in deciding whether or not to declare enforceability. Even the indication of the date on which the document instituting the proceedings was served, in the event of a judgment in default of appearance, is intended only to establish that the proceedings in default were preceded by service of the document instituting the proceedings, which is the indispensable minimum if cognisance is to be taken of a judgment
in default, and is not designed to enable the court addressed to check whether the conditions in Article 34(2) have been complied with. It may be pointed out that if the document instituting the proceedings was not served, no date of service can be indicated in the certificate. But also in that event a question may only arise as to the consequences of the lack of the mention relating to the date of service in the certificate, without any finding that service was not effected. Here too, therefore, the examination by the court is purely formal. The prohibition of any review on the basis of Articles 34 and 35 also precludes refusal of the application on grounds other than those laid down in those articles, which are the only grounds for refusal of recognition of a judgment given in another State bound by the Convention. Thus the application may not be refused on the ground that the court addressed finds that the judgment does not fall within the scope of the Convention. The fact that the court of origin has issued the certificate provided for in Annex V certifies that the judgment does fall within the scope of the Convention. To verify the correctness of the certificate would be contrary to the principle that the first stage of the procedure should be confined to a formal examination. Verifying the correctness of the certificate would require a legal assessment of the judgment, and should be reserved for the second stage of the proceedings. Nor can it be objected at this first stage that the judgment is contrary to public policy, despite the fact that this ground of refusal of recognition is in the general interest. The ad hoc working party had lengthy discussions on whether it might not be advisable to maintain the verification of public policy at the first stage, and opinions in favour of doing so were not lacking, but the view ultimately prevailed that it should not, owing in part to the fact that public policy had rarely been invoked in the practical application of the previous Convention, and in part to the delay this might have caused in the issue of the declaration of enforceability. As with the other grounds for refusal, any submission that the judgment is contrary to public policy will have to be raised at the second stage of the proceedings. 150. The only exception to these rules is provided for in Article III(2)(b) of Protocol 1, where, in respect of judgments rendered in an acceding State referred to in Article 70(1)(c), a contracting party has made a declaration reserving the right to permit the court with jurisdiction for the declaration of enforceability to examine of its own motion whether any of the grounds for refusal of recognition and enforcement of a judgment is present. The possibility of a reservation of this type is contrary to the principle that there should be no review at the first stage of a proceedings, which is fundamental in the system of the Convention, but it has been cautiously allowed. Such a reservation is valid for five years, unless the contracting party renews it (Article III(4)). This clause can be taken to suggest that the reservation should be reconsidered, and if not indispensable should be ended. 151. Given the merely formal nature of the verification carried out at this stage by the court addressed, the debtor’s active participation is not necessary. Article 41 therefore reiterates that the party against whom enforcement is requested cannot make submissions at this stage. The decision on the application for a declaration of enforceability is to be brought to the notice of the applicant immediately, in accordance with the procedure laid down by the law of the State in which enforcement is sought. If the decision declares enforceability, it must also be served on the party against whom enforcement is sought. It may happen that the declaration of enforceability is issued before the foreign judgment is served on that party. Article 42(2) provides that in that case the foreign judgment decision must be served together with the declaration of enforceability.
152. The decision on the application for a declaration of enforceability may be appealed against by either party, to the court listed in Annex III to the Convention. Appeals against the decision closing the first stage of proceedings have thus been unified. The 1988 Convention, like the Brussels Convention, provided for two different kinds of appeal, one against a decision granting enforcement, which was available to the party against whom enforcement was sought (Articles 36-39), the other against a decision refusing the application, which was available to the applicant creditor (Articles 40-41). As the first stage has now been reduced to a formality, the ad hoc working party considered the suggestion that the appeal against refusal should be eliminated, as the application was unlikely to be rejected. If there was any irregularity in the certificate, the court addressed would in general require that it be corrected, or, if information had been omitted, that the certificate be completed. But however unlikely it might be, it was still possible that the application might be rejected, and that in order to protect the rights of the applicant the decision would need to be reviewed, and it was accordingly decided to maintain the possibility of appeal, though without a specific set of rules distinct from those on appeals against a declaration of enforceability. 153. Article 43 provides that ‘either party’ may lodge an appeal, regardless, therefore, of whether the decision allows or rejects the application. In practice, however, only the party against whom enforcement is sought will have an interest in challenging a declaration of enforceability, and only the applicant will have an interest in challenging a rejection of the application. Furthermore, in this latter case, a decision rejecting the application has to be brought to the notice only of the applicant, as provided in Article 42(1), so that the debtor is not formally notified of it and consequently is not in a position to appeal. While they may be unified in terms of legislative drafting, therefore, the two kinds of appeal remain distinct in substance, as in the 1988 Convention.
They are also distinct in terms of the time within which they must be brought. The Convention lays down no time-limit for an applicant’s appeal against an application for a declaration of enforceability. This is an appeal in the applicant’s interest against a decision that has not even been notified to the debtor, and it is therefore left to the applicant to choose the time of the appeal, which in practice amounts to a resubmission of the application, this time with the debtor being heard. In the case of an appeal against a declaration of enforceability, on the other hand, there has to be a time-limit beyond which, if the party against whom enforcement is sought has not appealed, the judgment can be enforced. Article 43(5) therefore sets a time-limit of one month from the date of service of the declaration of enforceability. If the party against whom enforcement is sought is domiciled in a State bound by the Convention other than the one in which the declaration of enforceability is issued, the time-limit is increased to two months from the date of service on him, in person or at his residence. The time allowed is longer because of the difficulty the defendant may have in arranging for his defence in a State other than the one in which he is domiciled, where he may have to find a lawyer and will probably have to have documents translated. Article 43(5) states that no extension of the time indicated in the Convention may be granted on account of distance, and that rule takes the place of any national provisions there may be to the contrary. No time-limit is indicated in the Convention in the event that the party against whom enforcement is sought is domiciled in a State not bound by the Convention. In the absence of any such indication, the determination of the time allowed is left to the national law of the State addressed. 154. Both kinds of appeal are to be dealt with in adversary proceedings. Article 43(3) merely specifies ‘the rules governing procedure in contradictory matters’. In the absence of any further indication, the procedure to be followed is the ordinary one provided for by the national law of the court addressed, provided that it is such as to ensure that both parties are heard. If the party against whom enforcement is sought fails to appear in the appeal proceedings brought by the applicant, the court must apply Article 26(2)-(4), even where the party against whom enforcement is sought is not domiciled in any of the States bound by the Convention [1]. The purpose of this last provision is to safeguard the rights of the defence, which require protection especially because the proceedings on the applicant’s appeal against the refusal of a declaration of enforceability are the debtor’s last chance to defend himself and to try to show that the requirements for recognition of the foreign judgment are not met [2]. 155. The court hearing an appeal against a decision on a declaration of enforceability has to consider the judgment in the light of the grounds that would prevent it from being recognised and consequently declared enforceable. At this stage too there is a presumption in favour of recognition, in that the court does not rule on whether conditions for recognition are met, but rather on whether any of the grounds for refusal laid down in Articles 34 and 35 is present. In the case of an appeal by the creditor who lodged the application at the first stage of the proceedings, since the application must have been rejected after a purely formal verification of the certificate, the creditor will inevitably have to raise all the grounds for refusal at the appeal stage, seeking to show that they are not present in the case, and the court will have to rule on all of them, since the presence of even one would entail the rejection of the appeal. If the appeal is lodged by the party against whom enforcement is sought, on the other hand, that party may rely on the presence of one or more grounds of refusal without necessarily raising them all. This poses the problem of the extent to which the court hearing the appeal is confined to the pleas raised by the appellant. 156. When it drew up the new procedure for the enforcement of judgments, the ad hoc working party discussed at some length the question whether the appeal court might consider all or any of the grounds for refusing recognition of a foreign judgment of its own motion, especially where recognition might be manifestly contrary to public policy. Many experts took the view that where recognition would be contrary to public policy, refusal of recognition pursued a public interest that could not be left entirely at the disposal of the parties, and that the removal of any consideration of it at the first stage of the proceedings should be counterbalanced by allowing the court to consider it at the second stage of its own motion, even if the debtor had omitted to plead it. Likewise in order to counterbalance the removal of consideration of the grounds for refusal at the first stage, a number of experts felt that at the second stage the verification of what is termed procedural public policy should be strengthened beyond what was specifically provided in Article 34(2), by having the court review it of its own motion. This debate did not ultimately find expression in any of the provisions governing the powers of courts deciding on appeals. Article 45(1) limits itself to stating that the court ‘shall reject [if the appeal is brought by the applicant] or revoke [if the appeal is brought by the party against whom enforcement is sought] a declaration of enforceability only on one of the grounds specified in Articles 34 and 35’. The article indicates the purpose of the review by the court, and the grounds in which it is to take its decision, but does not indicate how that review is to be carried out. The absence of any indication in the Convention means that the question whether the court may consider the grounds for refusal of its own motion, or at the initiative of a party, will have to be resolved by the court itself, in the light of the public interest which in the legal order to which the court belongs may justify intervention in order to prevent the recognition of the judgment. If there is no such public interest, and the ground for refusal is essentially a matter
of the interests of the party against whom enforcement is sought, the burden of raising the question will be left to the interested party. An assessment of this kind can be carried out only on the basis of national law. 157. Some doubt also arose whether it could be argued at the second stage that the foreign judgment did not fall within the scope of the Convention. It has already been said that the fact that the court of origin has issued the certificate by itself certifies that the judgment does fall within the Convention. In so far as the certificate is the outcome of a legal assessment, it may be challenged at the appeal stage, and any problem of interpretation of the Convention would then have to be resolved in the light of the case-law of the Court of Justice, and, if the doubt persisted and the conditions were met, by referring the question to the Court of Justice for a preliminary ruling under the Treaty establishing the European Community. Article 45(2) of the Convention in any event expressly prevents this channel from being used to review the substance of the foreign judgment. 158. Given the review it involves, the second stage may last longer than the first, but at the second stage too the court must conclude without delay, in the shortest time permitted by national law, in deference to the principle that the free movement of judgments should not be hindered by obstacles such as delays in proceedings for enforcement. 159. The judgment concluding the second stage, given on an appeal by the applicant or by the party against whom enforcement is sought, may be contested only by the appeal referred to in Annex IV to the Convention, which for each State bound by the Convention specifies a form of appeal to a higher court or indeed precludes any such appeal entirely [1]. Article 44 of the Convention gives no indication of how this further appeal available to the parties is to proceed. It may be inferred that the appeal is governed by the national law of the particular State, and is to be conducted in the manner that that law provides, governing such things as the time within which an appeal must be brought, and that it is available within the limits that that law permits, such appeals usually being confined to points of law. Here too, in accordance with Article 45 of the Convention, the court’s review is confined to the grounds for refusal in Articles 34 and 35. Since national law usually confines appeals at this level to points of law, the review of the judgment of the court below with regard to the grounds for refusal in Articles 34 and 35 will be limited to correcting findings of law, and will not involve findings of fact. Once again, foreign judgments are not under any circumstances to be reviewed as to substance, and the courts must rule without delay. 160. No amendment was needed to the rule allowing a court hearing an appeal under Articles 43 or 44 to stay the proceedings if an appeal against the original judgment is pending in the State of origin. Article 46 reproduces Article 38 of the 1988 Convention, and does not require any further comment [2]. 161. Article 47 contains an important and significant innovation with respect to the corresponding provision of the 1988 Convention, Article 39 of which stated that during the time specified for an appeal and until any such appeal had been determined, no measures of enforcement could be taken other than protective measures against the property of the party against whom enforcement was sought. That provision, which allows protective measures to be taken only once the first stage of the issue of a declaration of enforceability has been concluded, has been retained in Article 47(3), but Article 47(1) makes it clear that protective measures may be ordered before the declaration of enforceability is served and until such time as a decision has been taken on any appeals. The ad hoc working party agreed that a provision of this kind was needed, but discussed at some length where it should be positioned, that is to say whether it should appear in the section on enforcement or rather, as the Commission had initially proposed, immediately following the rule that foreign judgments are to be recognised without any special procedure being required (Article 33) [3] . 162. The matter of the positioning of the new provision was in part bound up with the question whether, if a judgment appeared to satisfy the tests for enforceability, enforcement could begin before the declaration of enforceability was made, so that enforcement measures could be taken if they were not of a definitive nature. But it was pointed out that there is a difference between protective measures and provisional enforcement, and that there might be difficulties if enforcement were to begin in a State and then to be interrupted because no declaration of enforceability was issued. In some legal systems protective measures are taken as the first step in the process of enforcement, but a generalisation of this approach might have interfered with national procedural law, departing from the principle usually followed, which was that enforcement was left to the law of the individual States and was not changed by the Convention [4] .
For these reasons, and in order to prevent the new provision from being interpreted as modifying national law, it was decided to include it in the article regarding provisional and protective measures taken in connection with the declaration of enforceability of the judgment. Article 47(1) states that when a judgment must be recognised nothing prevents the applicant from availing himself of provisional, including protective, measures, without a declaration of enforceability being required, and thus prior to the issue of the declaration, allowing it to be understood that the application for such measures implies that the creditor intends to have the judgment enforced. Article 47(1) therefore departs from the previous text by allowing provisional or protective measures to be taken once the foreign judgment is enforceable in the State of origin, always supposing it satisfies the tests for recognition in the State addressed, whether or not a declaration of enforceability has been issued. For the measures that may be taken, Article 47 leaves it to the domestic law of the State addressed to determine their classification, the type and value of the goods in respect of which they may be adopted, the conditions to be satisfied for such measures to be valid, and the detailed provisions for implementing them and ensuring that they are legitimate [1]. It should also be borne in mind that the national law to which the Convention refers must not in any circumstances lead to frustration of the principles laid down in that regard, whether expressly or by implication, by the Convention itself, and must therefore be applied in a manner compatible with the principles in Article 47 [2], which entitle the applicant to request provisional or protective measures from the moment that the judgment becomes enforceable in the State of origin. 163. The two remaining paragraphs of Article 47 reproduce, inverting the order, the second and first paragraphs of Article 39 of the preceding Convention, and thus leave intact the possibility of taking protective measures against the property of the party against whom enforcement is sought during the time specified for an appeal against the declaration of enforceability pursuant to Article 43(5), and until any such appeal has been determined, and thus at a time subsequent to the issue of the declaration of enforceability. As in the 1988 Convention, since a declaration of enforceability carries with it the power to proceed to protective measures, the creditor may proceed directly to such measures, without obtaining specific authorisation, even if that would otherwise be required by the domestic procedural law of the court addressed [3] . Here again the application of national law cannot frustrate the principles laid down by the Convention according to which the right to proceed to provisional and protective measures derives from the declaration of enforceability, so that there is no justification for a second national decision providing a specific and distinct authorisation. Nor can national law make the creditor’s entitlement to proceed to protective measures conditional upon the lodging of a guarantee, as this would impose an additional condition for the taking of the measures themselves, which would be contrary to the clear wording of the Convention; the ad hoc working party considered a proposal to amend Article 47 to this effect, but rejected it. 164. The insertion of the new provision means that the Convention now covers provisional or protective measures taken in three distinct situations: the first, of a general nature, is governed by Article 31, which relates essentially, though not only, to the period in which the main court proceedings are taking place in the State of origin; the second arises in the State addressed, when the declaration of enforceability of the foreign judgment is being issued, and up to the point where it is issued (Article 47(1)); the third arises after the declaration of enforceability is issued, during the time allowed for appeal, and until the courts have determined the appeal (Article 47(3)). For the classes of measures that can be taken in these situations and for the rules governing them and their mechanisms and admissibility, the Convention refers extensively to national law, but national law applies only subject to the principles laid down in the Convention itself, and as we have seen cannot lead to results incompatible with those principles. This is of special relevance to the conditions that justify the taking of protective measures in the particular case. The conditions are a matter of national law, but when in order to apply them the national court considers whether the fundamental conditions of a prima facie case (fumus boni juris) and urgency (periculum in mora) are satisfied, it must do so in the light of and in compliance with the purposes of the rules of the Convention in the three situations outlined above. A court ordering a measure under Article 31 can freely assess whether or not there is a prima facie case and whether or not there is urgency, while under Article 47(1) the existence of a prima facie case follows from the judgment for which recognition is sought, and for the court to make its own assessment would be incompatible with the principle that the applicant is entitled to seek protective measures on the basis of the foreign judgment; the court’s own assessment is therefore limited to the question of urgency. And when protective measures are taken under Article 47(3), there can be no assessment either of the presence of a prima facie case or of urgency, because the declaration of enforceability carries with it the power to proceed to any protective measures, and an assessment of whether they are necessary distinct from the assessment of the requirements for the issue of a declaration of enforceability is not permitted by the Convention.
165. Article 48(1) provides that enforceability may be declared only for one or more of the matters in respect of which the foreign judgment has been given; it is identical to Article 42 of the 1988 Convention, except for the editorial changes necessitated by the new procedure, in which the court no longer ‘authorises’ enforcement, but simply ‘gives’ the declaration of enforceability. The most likely instances of a declaration of enforceability of this kind are those where a section of the judgment might be contrary to public policy, or where the applicant seeks a declaration of enforceability only for one or more sections of the judgment because he has no interest in the others, or more frequently where the foreign judgment deals with some matters that fall within the scope of the Convention and others that do not. It should be pointed out that for the application of this provision the matters dealt with in the judgment need not be formally distinct. If a judgment imposes several obligations only some of which are within the scope of the Convention, it may be enforced in part, provided that it clearly shows the aims to which the different parts of the judicial provision correspond [1]. 166. Also unchanged, apart form editorial adaptation, is the rule in paragraph 2, which permits the applicant to request a partial declaration of enforceability, even within a single heading of the judgment where it is not possible to distinguish different parts by their purposes. The ad hoc working party considered whether this provision should be removed, given the automatic character of the first stage of the proceedings and the effect of Article 52, which prohibits the levying of any charge, duty or fee calculated by reference to the value of the matter at issue [2]. But the provision is not motivated by considerations of a financial order, and its removal might have suggested that the creditor was always obliged to request the enforcement of the entire provision in the judgment. By virtue of this paragraph 2, which consequently remains unchanged, an applicant whose claim has been partially extinguished since the foreign judgment was delivered may therefore ask the authority issuing the certificate to indicate that enforcement is requested only up to a certain amount, and may also make that request at the second stage of the procedure, when an appeal is brought by the applicant himself or by the party against whom enforcement is sought. 167. This provision reproduces word for word the corresponding provision in the 1988 Convention, which provides that a foreign judgment which orders a periodic payment by way of a penalty (for example for delay) is enforceable in the State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin [3] . It has been pointed out that this provision leaves open the question whether it covers financial penalties imposed for disregarding a court order that accrue not to the creditor but to the State [4] . During the work of revision it was suggested that the wording could usefully be clarified to that effect. The ad hoc working party preferred, however, not to change the wording so as to include penalty payments to the State expressly, because a judgment in favour of the State may have a criminal character, so that a change here might introduce a criminal aspect into a Convention devoted to civil and commercial matters. The provision can therefore be taken to contemplate penalty payments to the State only if they are clearly of a civil character, and provided that their enforcement is requested by a private party in the proceedings for a declaration of enforceability of the judgment regardless of the fact that the payments are to be made to the State. 168. There is no change to the principle followed in this provision, according to which an applicant who in the State of origin has benefited from complete or partial legal aid, or exemption from costs or expenses, is entitled to the most favourable legal aid, or the most extensive exemption from costs or expenses, provided for by the law of the State addressed (see the Jenard report, p. 54, and the Schlosser report, paragraphs 223-224). Its application has however a wider scope, as it covers the entire procedure provided for in Section 2 on enforcement, including the appeal proceedings [5] . The grounds for legal aid or exemption from costs or expenses are irrelevant: they are determined by the law of the State of origin, and are not subject to review. It will be remembered that the certificate issued by the authority that gave the judgment for which recognition and enforcement is sought has to indicate whether or not the applicant has benefited from legal aid, and this is sufficient to allow the applicant to qualify in the State addressed. Article 50(2) is motivated by the need to take account of the role played in maintenance matters by the administrative authorities of some States, which act free of charge; the same necessity has been noted in the case of Norway, and Norway consequently joins Denmark and Iceland, which were already listed in the corresponding provision in the 1988 Convention. 169. Article 51 reproduces the corresponding provision of the 1988 Convention [6] . The ad hoc working party discussed whether for persons with their habitual residence in a State bound by the Convention the prohibition of the requirement of a cautio judicatum solvi should be extended to the original
proceedings. But this would have introduced a uniform rule that was not strictly necessary in order to ensure the freedom of movement of judgments, and the working party preferred not to intervene in the national systems. It should also be borne in mind that in a number of States bound by the Convention, the requirement of security by reason of foreign nationality or lack of domicile or residence in the country is already prohibited by the Hague Convention of 1 March 1954 on civil procedure (Article 17) and the subsequent Hague Convention of 25 October 1980 on international access to justice (Article 14), and that in Member States of the European Community, security based upon nationality is prohibited in any event. Article 52 reproduces Article III of Protocol 1 to the 1988 Convention, and in proceedings for the issue of a declaration of enforceability prohibits the levying in the State in which enforcement is sought of any charge, duty or fee calculated by reference to the value of the matter at issue.
170. Article 57 substantially reproduces, with some modifications to adapt it to the new Convention, the corresponding provision in the 1988 Convention (Article 50; for commentary see the Jenard report, p. 56, and the Schlosser report, paragraph 226) [1]. The Court of Justice has clarified the objective tests to be applied to determine when there is an instrument that may be declared enforceable under this provision. The Court has held that the authentic nature of the instrument must be established beyond dispute, and that since instruments drawn up between private parties are not inherently authentic, the involvement of a public authority or any other authority empowered for that purpose by the State of origin is needed in order to endow them with the character of authentic instruments [2]. The Court’s interpretation here is supported by the report on the 1988 Convention, according to which the authenticity of the instrument should have been established by a public authority, and should relate to the content of the instrument and not only the signature [3] . Naturally, acts are to be declared enforceable only if they are enforceable in the State of origin. According to Article 57(2), arrangements relating to maintenance obligations that are concluded with administrative authorities or authenticated by them are also to be regarded as authentic instruments. This provision is included to allow for the fact that in certain States maintenance questions are dealt with not by courts of law but by administrative authorities authorised to receive agreements between parties, and to certify them, thereby rendering them enforceable. 171. Authentic instruments are subject to the new procedure for the declaration of enforceability laid down in Articles 38 ff. of the Convention. At the second stage, the court can refuse or revoke a declaration of enforceability only if enforcement of the instrument would be manifestly contrary to public policy in the State addressed. The restriction under which public policy is the only ground for refusal takes over the corresponding provision in the 1988 Convention. As in the case of judgments, the procedure for the declaration of enforceability begins with the issue of a certificate by the competent authority of the State bound by the Convention in which the instrument itself was drawn up or registered, on the basis of a form provided in Annex VI to the Convention. The form has to indicate the authority which has given authenticity to the instrument; the authority may have been involved in its drafting or may merely have registered it. The designation of the authority empowered to issue such a certificate is a matter for the Member State concerned, and where the profession of notary exists, the authority may even be a notary. The application of the procedure leading to a declaration of enforceability may require some adaptation for authentic instruments, and must make allowance for the different nature of the document to be enforced. Thus, for example, the reference in Article 46 to a stay of the proceedings in the event that an ordinary appeal has been lodged in the State of origin may in the case of authentic instruments include proceedings at first instance, if these are the proceedings followed in the State of origin to challenge the validity of an authentic instrument. 172. Article 58 confirms that court settlements approved by a court in the course of proceedings and enforceable in the State of origin are treated in the same way as authentic instruments for purposes of the declaration of enforceability, as they were in the 1988 Convention (see the Jenard report, p. 56). But the procedure for the declaration of enforceability is based not on the certificate for authentic instruments but on the certificate for court judgments in Annex V.
173. Articles 59 and 60 concern the definition of the concept of domicile of natural and legal persons. The subject was discussed earlier in connection with the general rules on jurisdiction (paragraphs 26-33 above). 174. Article 61 takes over the provision in Article II of Protocol 1 to the 1988 Convention, and was considered earlier in connection with Article 5(4) (paragraphs 64-66 above). 175. The Convention repeatedly speaks of a ‘court’, indicating the court’s jurisdiction, its powers regarding the recognition and enforcement of judgments, and in general its role in the system of judicial cooperation that the Convention provides for and regulates. In some systems, if the term were to be understood in the narrower sense of an authority formally integrated into the judicial structure of the State, it might not include all of the authorities that perform one or other of the functions that the Convention assigns to a ‘court’. Examples might be the powers in relation to maintenance obligations that Norwegian and Icelandic law confer on administrative authorities, whereas the Convention regards maintenance obligations as a matter for courts, or the powers that Swedish law gives to regional administrative authorities, which sometimes perform judicial functions in summary enforcement proceedings. That these authorities were deemed to be ‘courts’ was stated in the 1988 Convention in Article Va of Protocol 1 [1]. The Convention now adopts a more general rule, giving a broader meaning to the term ‘court’, which is to include any authority in a national system having jurisdiction in the matters falling within the scope of the Convention. In this formulation the ‘courts’ that are to apply the Convention are identified by the function they perform, rather than by their formal classification in national law. Unlike the specific provision in Article Va of Protocol 1 – and the parallel provision in Article 62 of the Brussels I Regulation [2]- the new Article 62 has a general character which will cover even administrative authorities other than those that currently exist in States bound by the Convention, and which avoids the necessity of amending the Convention in the event of the accession of other States. It also allows the concept of a ‘court’ to include authorities or offices set up in the European Community framework, such as the Office for Harmonisation in the Internal Market (Trade Marks and Designs), based in Alicante, which has certain judicial functions in respect of industrial property. 176. Article 63 reproduces the corresponding provision in the 1988 Convention (Article 54): paragraph 1 states that the Convention applies only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed. Paragraph 2 reaffirms that if the proceedings were instituted before the Convention entered into force and the judgment is given after that date, the judgment is to be recognised under Title III if the rules on jurisdiction in Title II were complied with or if jurisdiction is founded upon a convention in force between the State of origin and the State addressed. Paragraph 2 gives precedence over this rule, however, to a provision stating that there is no need to verify jurisdiction if the proceedings in the State of origin were instituted after the entry into force of the 1988 Convention both in the State of origin and in the State addressed. Judgments on applications lodged while the 1988 Convention was in force, therefore, are treated in the same way as judgments given after the new Convention entered into force. The old third paragraph of Article 54, which concerned the jurisdiction of the courts of Ireland and the United Kingdom in cases where the law applicable to a contract had been chosen before the entry into force of the 1988 Convention, has been deleted as obsolete. The new text no longer contains the provision in the old Article 54A, which stated that for a period of three years from the entry into force of the 1988 Convention jurisdiction in maritime matters would be determined in accordance with paragraphs 1 to 7 of the Article in the case of Denmark, Greece, Ireland, Iceland, Norway, Finland and Sweden, except where for the particular State the International Convention relating to the arrest of sea-going ships, signed at Brussels on 10 May 1952, entered into force before the end of that time. This provision is now superseded, both because the three years have expired and because the 1952 Convention referred to is in force for most of the States concerned [3] .
177. The relationships between the Lugano Convention and the Brussels I Regulation, the Brussels Convention and the Agreement between the European Community and Denmark were considered earlier (paragraphs 18-22 above). The relationships with other conventions are dealt with below. 178. Article 65 reproduces, with the editorial changes required by the Convention following revision, the corresponding provision of the 1988 Convention (Article 55), and thus reaffirms the principle that, as between the States bound by the Convention, the Convention supersedes conventions concluded between two or more of them that cover the same matters as those to which the new Convention applies. This does not affect the references to other conventions of this kind in Article 63(2), Article 66 and Article 67; the last of these references has been added, as it was not in the corresponding provision in the 1988 Convention [1]. Article 65 also differs from the earlier text in that it does not itself list the conventions superseded, but instead refers to Annex VII. Article 66 also remains unchanged with respect to the corresponding provision of the 1988 Convention (Article 56): it states that the conventions superseded continue to have effect in relation to matters to which the Lugano Convention does not apply. 179. The provision in the 1988 Convention dealing with relationships with conventions on particular matters (Article 57) was considered by some to be obscure and difficult to interpret, and therefore in need of re-examination in order to prevent uncertainty in its interpretation. However, the ad hoc working party considered that it should not make any major change to the wording, as it felt that the clarification provided in the reports on the 1978 version of the Brussels Convention and the Lugano Convention of 1988 were sufficient to prevent the majority of uncertainties that might arise in the application of the provision. (For commentary see the Schlosser report, paragraphs 238-246, and the Jenard-Möller report, paragraphs 79-84). There is thus no change to the principle that existing and future conventions on particular matters prevail over the Lugano Convention (paragraph 1), or to the possibility of founding jurisdiction on the special convention even if the defendant is domiciled in another State bound by the Lugano Convention which is not a party to the special convention, though Article 26 must be complied with (paragraph 2); but it should be noted that that principle applies only to the extent provided for in the special convention. The rule giving primacy to conventions on particular matters is an exception to the general rule that it is the Lugano Convention that has primacy over other conventions between the States on questions of jurisdiction, and the exception has to be interpreted strictly, so that it precludes the application of the Lugano Convention only in questions expressly dealt with in a special convention [2]. 180. Article 67 also imposes a restriction on the conclusion of future conventions that was not in the 1988 Convention: the Lugano Convention does not prevent the conclusion of such conventions, but this is now stated to be without prejudice to obligations resulting from other agreements between certain contracting parties. It should be remembered that the Brussels I Regulation (Article 71) does not provide for the conclusion of conventions in relation to particular matters, and refers only to existing conventions that are to continue to apply. This provision is in line with the fact that it is the Community, rather than the Member States, that has power to conclude conventions on jurisdiction and the recognition of judgments that might encroach on the Brussels I Regulation, a power upheld by the Court of Justice in Opinion 1/03, where it found that in matters within the scope of the Regulation this power was exclusive [3] . It must therefore be concluded that the Member States of the European Community may not conclude other agreements on particular matters, except in the unlikely event that they are outside the competence of the Community, or where the Community authorises the Member States to conclude them. 181. A change has been made regarding the recognition and enforcement of judgments that is to some degree related to this point. There is no amendment to the rule that judgments given in a State bound by the Lugano Convention in the exercise of a jurisdiction provided for in a convention on a particular matter are to be recognised and enforced in accordance with Title III of the Lugano Convention (paragraph 3), or to the ground for refusal added to those in Title III, allowing refusal if the State addressed is not a party to the special convention and the party against whom recognition or enforcement is sought is domiciled in that State (paragraph 4). But a further ground for refusal is now added in paragraph 4, namely that the party is domiciled in a Member State of the European Community, if the State addressed is a Community Member State and the special convention should have been concluded by the Community, that is to say that the conclusion of the convention is within the competence not of the Member States
but of the Community itself. This rule is intended to prevent judgments being recognised and enforced in the European Community if they are founded on rules of jurisdiction whose substance ought to have been negotiated by the Community institutions. This change means, for example, that if a Swiss court founds its jurisdiction on a convention on a particular matter, its judgment will be recognised by the other States bound by the Lugano Convention on the basis of Title III. If the party against whom recognition or enforcement is sought is domiciled in the State addressed, recognition may be refused. This applies whether the State addressed is outside the European Community (such as Norway) or is a Member State (such as France). If the State addressed is a Community Member State, however, it may also refuse to recognise and enforce a judgment against a defendant domiciled in another Community Member State (such as Italy), if the special convention on which the Swiss court founded its jurisdiction concerns a matter that falls within the competence of the Community. The judgment may nevertheless be recognised on the basis of the national laws of the State addressed. 182. Lastly, there is no change to the provision in paragraph 5 which states that where conditions for the recognition or enforcement of judgments are laid down in a convention on a particular matter to which both the State of origin and the State addressed are parties, those conditions are to apply, though the Lugano Convention may be applied to the procedures for recognition and enforcement. Community acts which govern jurisdiction or the recognition or enforcement of judgments in relation to particular matters are to be treated in the same way as conventions in relation to particular matters, as provided in Protocol 3 (on which see paragraph 206 below). 183. Article 68 largely reproduces, with some editorial changes, the corresponding provision in the 1988 Convention (Article 59): it recognises the continued applicability of agreements by which States bound by the Lugano Convention undertook not to recognise judgments given in other States bound by the Convention against defendants domiciled or habitually resident in a third State where, in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction as specified in Article 3(2). This rule was laid down in the Brussels Convention in order to lessen the effects, within the Community, of recognition of judgments given on the basis of rules of exorbitant jurisdiction [1]; it was subsequently reproduced in the Lugano Convention, together with a restriction of the possibility of concluding agreements of this kind with non-Convention countries, which are precluded by paragraph 2 in certain cases in which the court of the State of origin of the judgment based its jurisdiction on the presence within that State of property belonging to the defendant or the seizure by the plaintiff of property situated there [2]. 184. The scope of the provision is further narrowed in the new Convention. While the 1988 Convention recognised the applicability of current and future agreements of this type, thus leaving the States free to conclude new ones, Article 68(1) in the new Convention makes a general reference only to agreements prior to its entry into force, and allows future agreements to be concluded only provided they do not conflict with obligations resulting from other agreements between certain contracting parties. It should be remembered here that the Brussels I Regulation (Article 72) does not mention the possibility of concluding future agreements, and speaks only of agreements prior to its entry into force, implicitly prohibiting the Member States from concluding new agreements of this kind. As has already been said of Article 67 [3] , this provision is in line with the fact that it is the Community, rather than the Member States, that has power to conclude conventions on jurisdiction and the recognition of judgments that might encroach on the Brussels I Regulation, a power upheld by the Court of Justice in Opinion 1/03, where it found that in matters within the scope of the Regulation this power was exclusive [4] . Thus only those States bound by the Convention that are not Member States of the European Community are now entitled under Article 68 to conclude agreements with States outside the Convention that contain non-recognition obligations. The fact that States may in future still conclude non-recognition agreements with non-Convention States persuaded the ad hoc working party not to take up a proposal that would have removed the second paragraph of Article 68, so as to align the Article on the corresponding provision in the Brussels I Regulation (which obviously does not contain a similar paragraph, as the paragraph will operate only if States are free to conclude future agreements of this kind), and instead to keep the restriction on the freedom of States which the paragraph already imposed.
185. The Convention is open for signature by the European Community, Denmark, and the States which, at time of signature, are members of EFTA. As already mentioned (paragraph 8), the Convention was signed on 30 October 2007 by the European Community, Switzerland, Norway and Iceland, and on 5 December 2007 by Denmark. The Convention is subject to ratification and, as with the 1988 Convention, the depositary is the Swiss Federal Council, which is to conserve it in the Federal Archives (Article 79). It is to enter into force on the first day of the sixth month following the date on which the Community and one EFTA member deposit their instruments of ratification. This period is twice as long as the period that was allowed for the entry into force of the 1988 Convention, and was decided upon in view of the time required to adapt the domestic laws of the States bound by the Convention. For States that ratify or accede thereafter, however, the Convention enters into force on the first day of the third month following the deposit of the instrument of ratification or accession. As of the date of its entry into force, for the contracting parties between whom it enters into force, the new Convention replaces the 1988 Convention. An exception is made for Article 3(3) of Protocol 2, which, as will be seen (paragraph 201 below) maintains the system for the exchange of information on national judgments established by Protocol 2 to the 1988 Convention, until it is replaced by a new system. Once that is done the replacement will be complete: Article 69(6) states that any reference to the 1988 Convention in other instruments is to be understood as a reference to the new Convention. 186. The non-European territories of Member States, to which the Brussels Convention did apply, were excluded from the territorial scope the Brussels I Regulation in accordance with Article 299 of the EC Treaty (Article 68 of the Brussels I Regulation); the Convention supplied an opportunity to resolve this problem. Article 69(7) provides that in relations between the Community Member States and those territories the new Convention is to replace the Brussels Convention (and the 1971 Protocol on its interpretation) as of the date of its entry into force with respect to those territories in accordance with Article 73(2). 187. The Convention has modified and simplified the procedure for accession to the Convention by other States, which previously provided for ‘sponsorship’ by a Contracting State, and an active role for the Depositary in assembling the information necessary to establish the suitability of the State wishing to accede [1]. This system was not felt to be very effective, among other things because it could lead to the refusal of an applicant State even though that State was sponsored by a Contracting State, and because it could prompt competition to sponsor an applicant State. It was also argued that the role of the depository State should be neutral, and that the accession procedure should not be based on an invitation to accede issued by that State. A different procedure has accordingly been laid down, in which a positive declaration of acceptance of an application is given after proper examination of the judicial and procedural system of the applicant State. The Convention distinguishes between States that become members of EFTA after signing the Convention (Article 70(1)(a)); Member States of the European Community acting on behalf of certain non-European territories that are part of their territory, or for whose external relations they are responsible (Article 70(1)(b)) [2]; and other States outside the Convention, including non-European States (Article 70(1)(c)). In each case, the accession procedure begins with a request made to the Depository – accompanied by a translation into English and French, in order not to impose the cost of translation on the Depository – but the procedure that follows is different: for the States referred to in points (a) and (b), it is regulated by Article 71; for the States referred to in point (c), it is regulated by Article 72. A rticle 71 provides that the applicant State has merely to communicate the information required for the application of the Convention, which is laid down in Annexes I to IV and VIII, and to submit any declarations it wishes to make in accordance with Articles I and III of Protocol 1. This information is to be sent to the Depositary and to the other Contracting Parties. Once this has been done the applicant State can deposit its instrument of accession. Article 72 lays down a different procedure for the other applicant States referred to in point (c). In addition to the information required for the application of this Convention and any declarations under Protocol 1, other States wishing to accede to the Convention must provide the Depositary with information on their judicial system, their internal law concerning civil procedure and enforcement of judgments, and their private international law relating to civil procedure. The Depositary transmits this information to the other Contracting Parties, whose consent to the accession is needed; they undertake to endeavour to give it at the latest within one year. Once the agreement of the Contracting Parties has been obtained, the Depositary is to invite the applicant State to accede by depositing its instrument of accession. The
Contracting Parties nevertheless remain free to raise objections to accession before the accession enters into force, which is on the first day of the third month following the deposit of the instrument of accession. If they do so the Convention enters into force only between the acceding State and the Contracting Parties that have not made any objection. 188. The procedure described applies not only to other States but also to regional economic integration organisations other than the European Community, which is already a party to the Convention and for whose participation the Convention already makes the necessary provision. The Diplomatic Conference of October 2006 discussed whether specific mention of such organisations should be made alongside the words ‘any other State’ in Article 70(1)(c). It was pointed out that an express mention would allow such organisations to accede without requiring an amendment of the Convention, and that the prospect of such accessions was a real one, as negotiations with such organisations were already under way in the framework of the Hague Conference on Private International Law. These advantages were diluted, however, by the flexibility of the new Convention, which would make it easier to make the amendments necessary for the accession of such organisations on the basis of the characteristics of each one of them. A consensus was finally reached that it would not be necessary to make express mention of regional economic integration organisations at present or in the immediate future, though it should be clear that the Convention was indeed open to accession by organisations of this kind. 189. Regarding the accession procedures laid down by Article 71 and Article 72, it was also discussed whether it would be advisable to insert a ‘federal clause’ into the Convention in order to allow the accession of States in which there were two or more systems of law in operation in different territorial units, without having to amend the Convention to take account of the requirements of such States with regard to the implementation of the obligations imposed by it. Some federal States have no central power to accept a convention on behalf of their federated units, so that some rules would have to be adapted for the purpose, and a federal clause would allow this to be done without amending the Convention. But on the other hand it was doubted whether such a clause was needed, given that the Convention made accession subject to a specific procedure that would allow examination of any possible reservations made necessary by a structure of the federal type. The idea of a federal clause was finally abandoned, and the Convention makes no mention of States that apply different legal systems in different territorial units. The possibility of agreeing suitable procedures for accession to the Convention by federal States naturally remains open. 190. Article 74 states that the Convention is concluded for an unlimited period, and may be denounced at any time, with effect at the end of the calendar year following the expiry of a period of six months from the date of notification of denunciation to the Depositary. 191. Article 76 states that any contracting party may request the revision of the Convention. The revision procedure provides for the convening of the Standing Committee referred to in Article 4 of Protocol 2 (for which see paragraph 202 below), made up of representatives of the contracting parties, which is to carry out the necessary consultations on the revision, to be followed if necessary by a diplomatic conference to adopt amendments to the Convention. This procedure applies to the Convention and the three Protocols annexed to it, which are listed in Article 75 and declared an integral part of the Convention. It should be pointed out that the draft convention submitted to the diplomatic conference of 2006 listed two other Protocols, a Protocol 4 on Community industrial property rights, which has been discussed here in connection with Article 22(4) [1], and a Protocol 5 on the relationship between the Lugano Convention and the 2005 Hague Convention on choice of court agreements [2]. This draft Protocol 5 made provision for the application by courts in the States bound by the Convention of the rules in Article 26(2) and (3) of the Hague Convention [3] , which explain when the Hague Convention does not affect the application of other conventions, and thus also of the Lugano Convention. According to the draft protocol, a court of a State bound by the Lugano Convention would have to stay the proceedings before it under Article 6 of the Hague Convention if the defendant contested its jurisdiction by reason of the existence of a choice of court clause in favour of a court in another State bound by the Convention, and would have to decline jurisdiction if the court chosen by the parties accepted jurisdiction under Article 5 of the Hague Convention. The diplomatic conference ultimately decided not to include this Protocol, on the grounds that the Hague Convention was not yet in force, that the arrangement proposed in the Protocol would affect with the system of lis pendens in the Lugano Convention where there was a choice of court clause, and that in most cases no conflict could be expected to arise in the application of the two international instruments, so that specific rules of coordination were not strictly necessary. 192. The procedures are different for the nine Annexes to the Convention, which have been referred to many times in the course of this explanatory report. Here the process of revision is simplified: and in order to allow amendment without the complexity and formality of the regular revision procedure, various details of the application of the Convention, and the forms for the certificates called for in certain provisions, are given in annexes rather than in the body of the Convention, as they were in the 1988 Convention.
Article 77 lays down two different procedures for revision of the annexes, depending on their content, with two levels of simplification. The first procedure applies to annexes that provide information on the application of the Convention which is to be supplied by the States bound by it: the rules of jurisdiction referred to in Articles 3(2) and 4(2) of the Convention (Annex I); the courts or competent authorities to which the application referred to in Article 39 may be submitted (Annex II); the courts with which appeals referred to in Article 43(2) may be lodged (Annex III); the appeals which may be lodged pursuant to Article 44 (Annex IV); and the conventions superseded pursuant to Article 65 (Annex VII). This information is to be communicated to the Depositary by the States, within reasonable time before the entry into force, and thereafter in the event of amendment, additions or deletions. The annexes are to be adapted accordingly by the Depositary, after consulting the Standing Committee in accordance with Article 4 of Protocol 2. There are different arrangements for the other annexes, which lay down the forms for the certificate on judgments and court settlements referred to in Articles 54 and 58 (Annex V); the certificate on authentic instruments referred to in Article 57(4) (Annex VI); the languages of the Convention referred to in Article 79 (Annex VIII); and the application of Article II of Protocol 1 (Annex IX). Here any request for amendment is submitted to the Standing Committee, in accordance with Article 4 of Protocol 2, and adopted directly by it without the need for a diplomatic conference of the contracting parties. 4. Notifications by the Depositary, languages of the Convention (Articles 78 and 79) 193. These are routine clauses in conventions and do not require particular comment.
194. This protocol has been considerably simplified by comparison with the corresponding Protocol 1 to the 1988 Convention, owing in part to the related revision of the Brussels Convention that led to the Brussels I Regulation, in which differentiated treatment of similar situations is reduced to a minimum, reflecting the need for uniformity that characterises European Community legislation. Gone is the clause, for example, that provided for special treatment for a defendant domiciled in Luxemburg, under which such a defendant was not subject to Article 5(1) on contractual obligations, and an agreement conferring jurisdiction was to be valid with respect to a person domiciled in Luxembourg only if that person had expressly and specifically so agreed (Article I of the earlier protocol). This special treatment was in fact maintained in the Brussels I Regulation (Article 63), but only for a period of six years from the entry into force of the Regulation, so that it no longer applies. The Protocol no longer mentions disputes between the master and a member of the crew of a sea-going ship registered in one of several States (Article Vb of the earlier protocol), which the Brussels I Regulation kept in force for a period of six years, but only in the case of Greece (Article 64 of the Brussels I Regulation). Other provisions have been incorporated with or without change into the body of the Convention. For example, the provision on the jurisdiction of the European Patent Office in Article Vd of the earlier protocol has been inserted, with changes, in Article 22(4) (see paragraph 99 above). 195. The provisions remaining in the Protocol have already been commented upon elsewhere in this explanatory report: in particular, Article I, on the service of judicial and extrajudicial documents, has been discussed in connection with Article 26; Article II, on actions on a warranty or guarantee or other third party proceedings, has been discussed in connection with Article 6(2); and Article III, on reservations in respect of Article 34(2) or in respect of countries acceding to the Convention, has been discussed in connection with Article 34 and Article 41 respectively. Reference should be therefore be made to the commentary in those places. It is necessary only to add that Article IV of the Protocol expressly states that the declarations referred to in the Protocol may be withdrawn at any time by notification to the Depositary. The withdrawal takes effect on the first day of the third month following notification. This provision merely describes an entitlement that the contracting parties would have had in any event, and is intended to draw attention to the desirability of reviewing such declarations and withdrawing them when they are no longer strictly indispensable, thereby improving the uniformity of the rules laid down by the Convention.
196. As in the 1988 Convention, Protocol 2 concerns the uniform interpretation of the Convention and also, as its title adds, the Standing Committee, which was set up by the earlier protocol. However, the rules on interpretation and the role of the Standing Committee have been substantially modified. The changes are to a great extent designed to take account of the participation of the European Community in the Convention in place of its Member States, which makes it advisable to provide for a broader role for the Court of Justice, and to establish a mechanism that is as flexible and rapid as possible for any revision of the Convention aimed at adapting it to the development of Community law. The approach is already clear from the preamble, which does not confine itself to noting the substantial link between the Convention and the instruments referred to in Article 64, and the consequent jurisdiction of the Court of Justice to give rulings on the interpretation of those instruments, but considers that the Convention itself is to become part of Community law, and that therefore the Court of Justice has jurisdiction to give rulings on the interpretation of the Convention itself as regards its application by the courts of the Member States. The preamble goes on to say that the parallel revision of the Lugano and Brussels Conventions led to a common revised text, based on the rulings of the Court of Justice and the national courts, and that that text was incorporated in the Brussels I Regulation, which in turn constituted the basis for the new Lugano Convention, and concludes that it is desirable to prevent divergent interpretations and to arrive at an interpretation as uniform as possible of the various legislative instruments; this is indeed a necessary condition for a judicial area that is common to the Member States of the Community and the States that are contracting parties to the Lugano Convention. 197. On the basis of the principles set out in the preamble, Article 1 of the Protocol requires the courts to take due account not only of the judgments of the courts of the other States bound by the Convention, as in the corresponding provision of Protocol 2 to the 1988 Convention, but also of the judgments of the Court of Justice regarding the Convention itself, the earlier Convention of 1988, and the instruments referred to in Article 64(1), first and foremost among which is the Brussels I Regulation. This obligation is motivated by the fact that the provisions of the Convention and the Regulation are the same, and applies to the extent that they are fully parallel. When the two texts are different, the courts of the States bound by the Convention will have to take account only of judgments applying the Convention that are delivered by national courts. For the courts of the Member States of the European Community, this obligation is subordinate to their obligations under the Treaty establishing the European Community and the 2005 Agreement between the Community and Denmark. Although the Convention is an instrument formally separate from the Brussels I Regulation and independent of it, the courts of Member States may refer provisions of the Convention to the Court of Justice, for preliminary rulings on their interpretation under Articles 234 and 68 of the EC Treaty, since they are an integral part of Community law. Preliminary rulings can also be sought on the interpretation of the Brussels I Regulation, however, and the provisions at issue may be identical to those of the Convention; so that even in that case the interpretation of the Court of Justice will inevitably have implications for the clarification of the meaning and scope of the provisions of the Convention. When the Court is asked to give an interpretation, its interpretation is binding in the particular case, which means that the referring court is obliged not merely to take account of it but to apply it in deciding the dispute. The obligation resting on courts of Community Member States is therefore a more stringent one than that resting on the courts of the non-Community States that are party to the Lugano Convention, which are bound by the less specific obligation to ‘pay due account to’ the principles laid down by any relevant decision of the Court of Justice. 198. It should be borne in mind that the Protocol sets out to prevent divergent interpretations and to arrive at an interpretation as uniform as possible of the Convention, the Brussels I Regulation, and the other instruments referred to in Article 64. When the Court of Justice is called upon to give its interpretation, therefore, it ought to be able to take into consideration the views of the States that are not members of the European Community. The courts of the non-Community States cannot seek preliminary rulings for this purpose, and Article 2 of the Protocol therefore allows those States to submit statements of case or written observations where a reference for a preliminary ruling is made by a court or tribunal of a Community Member State. Submissions of this kind are governed by Article 23 of the Protocol on the Statute of the Court of Justice [1], and may be made not only with regard to the Convention, but also to legislative instruments under Article 64(1), in view of the implications their interpretation may have for the provisions of the Convention, which are usually identical. 199. If the courts of the States bound by the Convention are to take account of the judgments of the Court of Justice and of national courts, as they are required to do, there must be an effective system of information on the judgments delivered in application of the Convention, the earlier Convention of 1988, the Brussels I Regulation, and the other instruments referred to in Article 64. The need for an effective mechanism is particularly evident in the case of judgments delivered by national courts, given the great number of States bound by the Convention, which have different procedural systems and use different languages which all the national courts cannot possibly be expected to know. Protocol 2 of the 1988 Convention set up a system of exchange of information based essentially on transmission by each Contracting State to a central body, which it was decided should be the Registrar of the Court of Justice, of judgments delivered under the Lugano Convention and the Brussels Convention; classification of those judgments by the central body; and communication of the relevant documents by the central body to the competent national authorities of the Contracting States and to the European Commission. A Standing Committee composed of representatives of the Contracting States (discussed further below) could be convened in order to exchange views on the case-law communicated to the States by the central body.
Under these provisions the Standing Committee has been convened by the Swiss Federal Government, the Depositary of the 1988 Convention, once a year. In the early years there was a straightforward exchange of information, but from the fifth meeting, held in Interlaken on 18 September 1998, the Committee worked on the basis of a report on judgments over the preceding year, drawn up by representatives chosen in rotation, which it discussed with a view to highlighting any differences in interpretation by national courts that might have emerged, and identifying those that might arise again in future, with the aim of resolving them beforehand. 200. This system of exchange of information is greatly changed by Article 3 of the new Protocol. The European Commission is given the task of setting up a new system, for which several criteria are laid down: the system is to be accessible to the public, and is to contain judgments delivered by courts of last instance and by the Court of Justice, and any other judgments of particular importance which have become final, delivered pursuant to the new Convention, the 1988 Lugano Convention, or the instruments referred to in Article 64(1) of the new Convention, and thus in the first place the Brussels I Regulation. The judgments are to be classified and provided with an abstract. Unlike the earlier protocol, Article 3 does not mention translations, but it is obvious that the classified judgments will have to be translated at least partly, if not into all the languages of the States bound by the Convention, at least into a few languages that make them accessible to the ordinary courts that are required to take them into account in applying the Convention. The obligation to institute a system of information accessible to the public is of particular importance, and is a departure from the earlier system, in which information had to be given only to the States and to their representatives on the standing Committee, though in practice the Registrar of the Court of Justice allowed access to the information to a wide public of legal professionals (lawyers, judges, notaries, university lecturers, etc.). The new arrangement is intended to provide more structured access to judgments for anyone with an interest, so that easier and fuller use can be made of the case-law that has developed with regard to the Convention. The States bound by the Convention continue to be under an obligation to communicate judgments to the Commission. The Registrar of the Court of Justice will have the task of selecting cases of particular interest for the working of the Convention, and presenting them for consideration by a meeting of experts in accordance with Article 5 of the Protocol (see below). 201. Until the Commission has set up the new system, the previous system entrusted to the Court of Justice will continue to be applied. There may, however, be immediate application of the arrangement whereby information on judgments is to be assembled by the Registrar and communicated to the States by the meeting of experts under Article 5 of the Protocol, rather than by the Standing Committee of representatives of the contracting parties referred to in Article 3 of the earlier Protocol, to which Article 4 of the new Protocol gives other tasks. 202. Protocol 2 to the 1988 Convention provided that a Standing Committee was to be set up, composed of representatives of the Contracting States, whose meetings could be attended in an observer capacity by the European Communities (Commission, Council and Court of Justice) and EFTA, to examine the development of the case-law which was the subject of the exchange of information system just described and the relationship between the Convention and other conventions on particular matters, and on the basis of that examination to consider whether it might be appropriate to initiate a revision of the Convention on particular topics and to make recommendations for the purpose. Article 4 of the new Protocol retains the institution of the Standing Committee, though since it is limited to the contracting parties it is a smaller body than the previous one, since the Member States of the European Community are now replaced by the Community itself. This means that the composition of the new Committee is not ideal for the exchange of information and discussion of national judgments that took place under the 1988 Convention, and the Committee has been given other and more important tasks in connection with the operation and revision of the Convention. 203. The functions assigned to the Committee are functions of consultation and revision. The Committee is to carry out consultations regarding the relationship between the Convention and other international instruments, regarding the application of Article 67, including intended accessions to instruments on particular matters and proposed legislation according to Protocol 3, regarding a possible revision of the Convention pursuant to Article 76, and regarding amendments to Annexes I through IV and Annex VII pursuant to Article 77(1). The Committee is also to consider the accession of new States, and may put questions to acceding States referred to in Article 70(1)(c) about their judicial systems and the implementation of the Convention, and consider possible adaptations to the Convention necessary for its application in the acceding States. In all of these areas the Committee’s task is to discuss aspects of the operation of the Convention, and if necessary to prepare the way for a conference to revise the Convention. 204. In connection with the revision of the Convention, the Standing Committee has functions that are broader than just discussion and the preparation of decisions. The Committee itself has to decide certain issues requiring amendment of the Convention and its Annexes. It must accept new authentic language versions pursuant to Article 73(3), and make the necessary amendments to Annex VIII. It may also make amendments to Annexes V and VI pursuant to Article 77(2). Lastly, it may be convened to discuss the withdrawal of declarations and reservations made by the contracting parties pursuant to Protocol 1, and decide on the consequences of such withdrawals, making the necessary amendments to Annex IX. These are important functions which under the 1988 Convention would have required the convening of a diplomatic conference of the Contracting States in order to amend the Convention, but which have now been made the subject of a simplified revision procedure, a procedure made easier by the fact that a substantial amount of information has been inserted not in the body of the Convention but in the annexes. The procedure is further simplified by empowering the Committee to establish the procedural rules concerning its functioning and decision-making, which are to provide for the possibility of both consulting and deciding by written procedure, without the need for a meeting of the contracting parties. Despite that provision in the rules of procedure, of course, any contracting party must remain free to request the convening of a meeting of the Committee. 205. The need for a forum taking in all the States bound by the Convention to discuss the development of case-law on the Convention, which was previously provided by the Standing Committee, is now to be met by a different kind of consultation, in which a meeting of experts will be called whenever it is necessary or appropriate. The Depositary can convene a meeting without needing to be formally requested, whenever it considers it advisable, which was already the practice for the convening of the committee set up by the 1988 Convention. The purpose of a meeting of experts is to exchange views on the functioning of the Convention, in particular on the development of the case-law and new legislation, usually Community legislation, that may influence the application of the Convention. Exchanges of opinion of this kind are obviously useful with a view to achieving parallel and uniform interpretation of the Convention and the Brussels I Regulation. The composition of these meetings is broader than of the Standing Committee, and substantially the same as that of the committee provided for in the earlier Protocol 2, as is natural given that they have the same task of exchanging opinions on national case-law. The participants are therefore experts from the contracting parties, the States bound by the Convention, the Court of Justice, and EFTA. The composition of the meetings may even be broadened further, with the participation of other experts whose presence may be deemed appropriate. Although the tasks of the meetings of experts are more limited, a connection is established with the Standing Committee. If, in the course of meetings, questions arise on the functioning of the Convention which, in the judgment of the participants, require further consultations between the contracting parties or more thorough examination with a view to revision of the Convention, they may be referred to the Standing Committee for further action. 206. The Protocol on the application of Article 67 of the Convention largely reproduces the preceding Protocol No 3 to the 1988 Convention, which was concerned with the application of Article 57 of that Convention. The Protocol states that provisions contained in acts of the institutions of the European Communities which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments are to be treated in the same way as the conventions referred to in Article 67(1). The reasons for this equivalence are fully explained in the report on the 1988 Convention, to which reference should be made (Jenard-Möller report, paragraphs 120-125). That report observes, however, that the reference is only to Community acts and not to the legislation of the Community Member States where this has been harmonised pursuant to those acts, such as Directives, because ‘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’ (paragraph 125). The new Protocol adds a provision (paragraph 3) stating that where a contracting party or several parties together incorporate into national law some or all of the provisions contained in acts of the institutions of the European Community, then these provisions of national law shall be treated in the same way as conventions on particular matters. This provision is intended to facilitate the adaptation to the legislation enacted by the Community of the national law of the non-Community States, and to give those States the flexibility they need to make the necessary adaptations, especially when the Community instruments in question are Directives. 207. Paragraph 2 of the Protocol reproduces the corresponding article in the earlier protocol, and provides that if a Community act is incompatible with the Convention the contracting parties must promptly consider amending the Convention pursuant to Article 76, without prejudice to the procedure established by Protocol 2. The earlier protocol applied only to a Community act that was incompatible with the Convention, but the new paragraph 2 also covers the case of a proposal for a Community act that is incompatible, thus allowing the Convention to be amended at the same time as the Community act is finally adopted. - the end - End of page Official Journal of the European Union C 319/56 (23.12.2009)
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