Brussels I Regulation

European Commentaries on Private International Law 1

Edited by Peter / Magnus, Ulrich Mankowski

Bearbeitet von Peter Mankowski, Ulrich Magnus

1. Auflage 2007. Buch. XXVIII, 852 S. Hardcover ISBN 978 3 935808 32 3 Format (B x L): 16,5 x 24,5 cm Gewicht: 1474 g

Recht > Zivilverfahrensrecht, Berufsrecht, Insolvenzrecht > Zivilverfahrensrecht allgemein, Gesamtdarstellungen > Internationales Zivilprozessrecht, Schiedsverfahrensrecht Zu Inhaltsverzeichnis

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Watté, Les relations des Conventions de Bruxelles ras/Watté (eds.), L’espace judiciaire europen en et de Lugano sur la comptence internationale et matire civile et commerciale (1999), p. 3. les effets des jugements, in: Fentiman/Nuyts/Taga-

I. The purposes of the Brussels I Regulation

The Regulation on jurisdiction and the recognition and enforcement of judgments in 1 civil and commercial matters, the so-called Brussels I Regulation (in the following: the Regulation) which is the subject of this commentary pursues a number of purposes. Its objectives are enshrined in the Recitals to the Regulation and they are further detailed in many judgments of the European Court of Justice. Though these judgments were rendered on the basis of the Brussels Convention of 1968 they continue to be relevant also for the understanding and interpretation of the Regulation.1

Primarily, the Regulation intends to facilitate the judicial treatment of suits and judg- 2 ments among the Member States. The Regulation aims at easier and more uniform rules and faster and simpler procedures for civil cross-border litigation within the EU.2 It is based on the conviction that differences between national laws on jurisdiction and recognition of judgments and differing procedural formalities impede the judicial cooperation within the internal market. Difficulties to enforce civil claims in other Member States discourage persons to establish cross-border trade relations and hamper thereby considerably the sound operation of the internal market.3 The Regulation removes a great deal of these differences and difficulties and attempts to enable and ensure the free movement of judgments.4 The Regulation is based on the principle of mutual trust in the legal system and judicial institutions of each other Member State, in the legality and correctness of judicial procedures taken, and decisions rendered, in other Member States.5 The mutual trust includes the expectation that each Member State is willing to strictly obey to the provisions of the Regulation.

A further purpose is to base jurisdiction, and thereby the defendant’s obligation to 3 submit to the competent court’s jurisdiction,6 on uniform and fair connecting factors. The defendant must defend him- or herself only at places to which the dispute is

1 Verein für Konsumenteninformation v. Karl Heinz Henkel, (Case C-167/00) [2002] ECR I-8111, 8143 para. 49; as to the interpretation of the Regulation see infra Introduction note 91 (Magnus). 2 See Recitals 1 and 2; compare further A-G Tesauro, Opinion in Case C-346/93, [1995] ECR I-617, I-627 para. 20: “The ‘scheme’ of the Convention as a whole is indifferent to purely internal situations such as a conflict of territorial jurisdiction between the courts of the same country.”) 3 Recital 1 and 2 to the Regulation; see also Geimer/Schütze A. 1 Einl. note 15; Pfeiffer, Internationale Zustndigkeit und prozessuale Gerechtigkeit (1995) p. 349, 762. 4 See Recital 6. 5 See Recitals 16 and 17; see also the ECJ in Erich Gasser GmbH v. MISAT Srl, (Case C-116/02) [2003] ECR I-14693, I-14746 et seq. para. 72; Gregory Paul Turner v. Felix Fareed Ismail Grovit, Harada Ltd. and Changepoint SA, (Case C-159/02) [2004] ECR I-3565 para. 24; see further Layton/Mercer para. 11.015. 6 Rather than with an obligation the defendant is only burdened with disadvantages (judgment by default etc.) if s/he omits to react to a suit instituted by the claimant.

Ulrich Magnus 7 Introduction Brussels I Regulation 4, 5 on Jurisdiction and Recognition in Civil and Commercial Matters

sufficiently related to. For this reason the Regulation has abolished a number of national provisions on jurisdiction which are regarded as exorbitant.7 Fairness is also granted by specific protective rules on jurisdiction in the interest of certain socially or economically weaker parties, namely insured persons, employees and consumers who in essence can only be sued in ‘their’ forum.8

4 Another main objective is to secure the principle of legal certainty with respect to jurisdiction and the recognition and enforcement of judgments. The Regulation estab- lishes a system of provisions, in particular on jurisdiction, the outcome of which must be “highly predictable”.9 This aims at the highest possible foreseeability and certainty in the application and interpretation of the provisions of the Regulation so that the parties can as far as possible rely in advance on these rules. In particular, a reasonable defendant should be able to foresee in which courts in the EU s/he could be sued.10 Therefore, it is not a matter of discretion for the court seised whether to entertain a suit or not; the court is bound by the provisions of the Regulation. The doctrine of forum non conveniens so well known in Common Law jurisdictions is not allowed under the Regulation.11

5 While the Regulation aims on the one hand at security and certainty in cross-border litigation it pursues on the other hand also the objective to grant the parties the widest possible freedom to select the competent court.12 Choice of court agreements are widely recognised (Art. 23) and find their limits only where the Regulation provides for exclusive or protective jurisdiction.13 Moreover, a defendant can always submit to

7 See Annex I in connection with Artt. 3 (2) and 4 (2). 8 See Artt. 8 et seq., Artt.15 et seq., Artt.18 et seq. 9 See Recital 11; for statements of the ECJ in the same direction compare: Owens Bank Ltd. v. Fulvio Bracco and Bracco Industria Chimica SpA, (Case 129/92) [1994] ECR I-117, I-155 para. 32; Custom Made Commercial Ltd. v. Stawa Metallbau GmbH (Case 288/92) [1994] ECR I-2913, I-2956 paras. 15, 18; Benincasa v. Dentalkit Srl, (Case C-269/95) [1997] ECR I-3767, I-3798 para. 28; Réunion europé- enne SA v. Spliethoff's Bevrachtingskantoor BV and Master of the vessel ``Alblasgracht 002'', (Case C-51/ 97) [1998] ECR I-6511, I-6548 para. 46; see further Layton/Mercer para. 11.020. 10 See the ECJ statements in Jakob Handte & Co. GmbH v. Traitements Mécano-chimiques des surfaces SA, (Case 26/91) [1992] ECR I-3967, I-3995 para. 18; GIE Groupe Concorde et al. v. Master of the Vessel ``Suhadiwarno Panjan'', (Case C-440/97) [1999] ECR I-6307, I-6350 para. 24; Besix SA v. Wasserrei- nigungsbau Alfred Kretzschmar GmbH & Co. KG (WABAG) and Planungs- und Forschungsgesellschaft Dipl. Ing. W. Kretzschmar GmbH & KG (Plafog), (Case C-256/00) [2002] ECR I-1699, I-1732 para. 52; Andrew Owusu v. Nugent B. Jackson, trading as ``Villa Holidays Bal-Inn Villas'', Mammee Bay Resorts Ltd., Mammee Bay Club Ltd., The Enchanted Garden Resorts & Spa Ltd., Consulting Services Ltd., Town & Country Resorts Ltd., (Case C-281/02) [2005] ECR I-1383 para. 38. 11 Andrew Owusu v. Nugent B. Jackson, trading as ``Villa Holidays Bal-Inn Villas'', Mammee Bay Resorts Ltd., Mammee Bay Club Ltd., The Enchanted Garden Resorts & Spa Ltd., Consulting Services Ltd., Town & Country Resorts Ltd., (Case C-281/02) [2005] ECR I-1383 paras. 37 et seq. 12 See Recital 14. 13 See Art. 22 (exclusive jurisdiction) and Artt. 8 et seq., Artt.15 et seq., Artt.18 et seq. (protective jurisdiction).

8 March 2007 Introduction Introduction 6-9 an incompetent court’s jurisdiction except where another court has exclusive jurisdiction (Art. 24).

Though it could be regarded as rather a technical matter it is also of high practical 6 importance that the Regulation aims at the widest possible avoidance of concurrent proceedings in different courts and of differing judgments on the same matter.14

As regards the recognition and enforcement of judgments the Regulation is governed 7 by the principle of automatic recognition which can be refused for few reasons only and by the further principle that enforcement must be efficient and rapid.15

Last but not least the Regulation aims at continuity with respect to its predecessor, the 8 Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judg- ments in Civil and Commercial Matters.16 This continuity is further secured by the fact that the ECJ was already competent to interpret the Brussels Convention and remains competent to interpret the Regulation. Since the Regulation modified the text and substance of the Convention only modestly17 most ECJ judgments on the Convention remain valid under the Regulation. The ECJ decisions can be found on the internet under www.europa.eu.int or under www.curia.eu.int.

II. The Brussels I Regulation as part of the European law of international civil procedure

1. The development of a European law of international civil procedure

The last few years saw a true outburst of legislative activities of the European Com- 9 munity in the field of international procedural law. Numerous Regulations and Direc- tives on this subject where enacted since the Treaty of Amsterdam of 1997 amended the EC Treaty, established a single area of freedom, security and justice18 and clothed the European Union with new competences in matters of administration of justice.19 Except Denmark all Member States of the Union accepted this extension20 and are

14 Recital 15. 15 Recitals 16 and 17. 16 See in particular Recital 19. As to the Brussels Convention see infra Introduction notes 9 et seq. (Magnus). 17 See thereto infra Introduction note 25 (Magnus). 18 Art. 61 EC Treaty. 19 Art. 65 EC Treaty. 20 According to the Protocol on the Position of Denmark to the Treaty on the European Union as revised by the Treaty of Amsterdam Denmark does not participate in, and is not bound by, measures in pursuance of the new competence. The EU and Denmark have, however, prepared separate instruments by which Denmark will take over single Regulations or Directives concerning judicial measures; a respective Treaty concerning the application of the Regulation will be enter into force in the near future: see Jayme/Kohler, IPRax 2005, 481, 485 et seq.; see further infra Introduction notes 53 et seq. (Magnus).

Ulrich Magnus 9 Introduction Brussels I Regulation 10, 11 on Jurisdiction and Recognition in Civil and Commercial Matters

now directly bound by those Regulations and have to implement the respective Di- rectives. This is also true for the new Member States which joined the EU in 2004 and 2007.

10 The main new instruments which have been created since the Treaty of Amsterdam entered into force are the following (in the order of the time of their enactment): – Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental resposibility for children of both spouses (29 May 2000; so-called Brussels II Regulation); – Regulation on the service in the Member States of judicial and extrajudicial docu- ments in civil and commercial matters (29 May 2000; Service Regulation); – Regulation on insolvency proceedings (29 May 2000; Insolvency Regulation); – Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (22 December 2000; Brussels I Regulation); – Regulation on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (28 May 2001; Evidence Regulation); – Council Decision establishing a European Judicial Network in civil and commercial matters (28 May 2001); – Charter of fundamental rights of the European Union (2001); – Directive to improve access to justice in cross-border disputes by establishing mini- mum common rules relating to legal aid and other financial aspects of civil proceedings (27 January 2003); – Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (27 November 2003; so-called Brussels IIbis Regulation); – Regulation creating a European enforcement order for uncontested claims (21 April 2004).

11 It is clear from this list which could be, and will be, still enlarged by further present21 and future22 enactments that Europe faces the rapid emergence of a common European law of civil procedure.23 Already now, almost all aspects which can arise in interna-

21 Further Directives exist in special fields like for the reorganisation and winding-up of both insurance undertakings and credit institutions (Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, OJ 2001 L 110/28 and Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions, OJ 2001 L 125/15) or on injunctions for the protection of consumers’ interest (Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998, OJ 1998 L 166/51). Also a Council Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes, OJ 2001 L 109/56 can be mentioned. See also COM (2004) 718 final. 22 Instruments on jurisdiction and the recognition and enforcment of judgments in further family and succession matters which are presently still excluded from the scope of the existing instruments are being prepared and will be enacted as Brussels III and Brussels IV Regulations in the coming years. 23 And in the law of criminal procedure, too, a similar development can be observed as the Directive on the European seize order exemplifies.

10 March 2007 Introduction Introduction 12, 13 tional civil litigation apart from arbitration24 are dealt with by these instruments: jurisdiction, recognition and enforcement of judgments, service of claims, evidence abroad, legal aid, insolvency proceedings. Yet, the different instruments do not cover all kinds of civil and commercial law disputes25 nor have the instruments been enacted in a fully coordinated and systematic way. Nonetheless taken together they form at least a nucleus of a uniform code of international civil procedure for the EU. And it is evident that the development is still in the beginning and will continue.

2. Brussels I Regulation as the fundament of a European law of international civil procedure

Among the presently existing instruments on European international civil procedure 12 the Brussels I Regulation is certainly the most important one. As compared to the other instruments it concerns the most important questions of international civil litigation, namely jurisdiction and recognition and enforcement of judgments. It has the widest scope of application since it covers almost all civil and commercial matters. Of all mentioned instruments it is most often applied: this is evidenced by much more than hundred judgments of the ECJ26 and probably some thousand decisions of national courts (though thus far in essence on the Brussels Convention). It is best known due to the fact that it had a predecessor of almost identical wording, the Brussels Conven- tion on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968, and that this predecessor had been uniformly interpreted by the European Court of Justice since almost fourty years. Within the European law of international civil procedure the Brussels I Regulation therefore constitutes the fundament on which all further development has built in the past and has to build also in the future.

3. Further surrounding international treaties

However, the European law of cross-border civil procedure as Community law is sur- 13 rounded and supplemented by further international treaties on same matters. The mentioned Brussels Convention though superseded by the Brussels I Regulation as between all other Member States27 is still in force with respect to Denmark. The Lugano Convention,28 a parallel treaty to the Brussels Convention, regulates the jurisdiction

24 The most important aspects of arbitration are uniformly regulated on a global level by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. 25 See the exclusions listed in Art.1 (2). 26 Compare the register of ECJ judgments in the Table of Cases (p. 782). 27 Art. 68 Regulation. The Brussels Convention remains in force in the Member States not only with respect to Denmark but also with respect to those territories of the Member States to which the Brussels Convention was extended by its former Art. 60 or by special declararion of the respective Member State and to which the Regulation does not extend due to Art. 299 (3) EC Treaty in connection with Schedule II of the Treaty; see further infra notes 48 et seq. and the comments to Art. 68 (Mankowski). 28 See thereto infra notes 29 et seq.

Ulrich Magnus 11