^•^ /*/*• • A "•" "I ISSN 0378-6986 Omcial J ournal c 189 # # Volume 33 of the European Communities au^i-m.
English edition Information and Notices
Notice No Contents Page
I Information
Council
90/C 189/01 Preliminary note 1
90/C 189/02 Convention on jurisdiction and the enforcement of judgments in civil and com mercial matters 2
90/C 189/03 Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters 25
90/C 189/04 Joint Declaration of 9 October 1978 30
90/C 189/05 Joint Declaration of 26 May 1989 32
90/C 189/06 Report by Mr de Almeida Cruz, Mr Desantes Real and Mr Jenard on the Con vention on the accession of the Kingdom of Spain and the Portuguese Republic to the 1968 Brussels Convention on jurisdiction and the enforcement of judg ments in civil and commercial matters 35
90/C 189/07 Report by Mr P. Jenard and Mr G. Moller on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 57
Price: ECU 16,00 28. 7. 90 Official Journal of the European Communities No. C 189/1
(Information)
COUNCIL
PRELIMINARY NOTE
(90/C 189/01)
The signing on 26 May 1989 of the Convention on the acces made in 1978 in connection with the International Convention sion of the Kingdom of Spain and the Portuguese Republic to relating to the arrest of sea-going ships and the other in 1989 the Brussels Convention on jurisdiction and enforcement of concerning the ratification of the Convention on accession of judgments in civil and commercial matters and to the Protocol the Kingdom of Spain and the Portuguese Republic. on its interpretation by the Court of Justice has made it desira ble to make available to legal practitioners a consolidated and updated version of the texts of the Brussels Convention and The text printed in this number of the Official Journal was the abovementioned Protocol published in Official Journal of drawn up by the General Secretariat of the Council, in whose the European Communities No C 97 of 11 April 1983. archives the originals of the instruments concerned are depos ited. It should, however, be noted that this text has no binding These texts are supplemented by two Declarations by repre effect and that the official texts of the consolidated instru sentatives of the Governments of the Member States, one ments are to be found in the following Official Journals:
Version of Official Brussels Convention of Protocol of 1971 Accession Convention of Accession Convention of Accession Convention of Journals in 1968 1978 1982 1989 German L299, L204, L304, L388, L285, 31. 12. 1972, p. 32 2.8. 1975, p. 28 30. 10. 1978, p. 1 31. 12. 1982, p. 1 3. 10. 1989, p. 1 English L304, L304, L304, L388, L285, 30. 10. 1978, p. 36 30. 10. 1978, p. 50 30. 10. 1978, p. 1 31. 12. 1982, p. 1 3. 10. 1989, p. 1 Danish L304, L304, L304, L388, L285, 30. 10. 1978, p. 17 30. 10. 1978, p. 31 30. 10. 1978, p. 1 31. 12. 1982, p. 1 3. 10. 1989, p. 1 French L299, L204, L304, L388, L285, 31. 12. 1972, p. 32 2. 8. 1975, p. 28 30. 10. 1978, p. 1 31. 12. 1982, p. 1 3. 10. 1989, p. 1 Greek L388, L388, L388, L388, L285, 31. 12. 1982, p. 7 31. 12. 1982, p. 20 31. 12. 1982, p. 24 31. 12. 1982, p. 1 3. 10. 1989, p. 1 Irish Special Edition Special Edition Special Edition Special Edition Special Edition (L388) (L388) (L 388) (L 388) (L285) Italian L299, L204, L304, L388, L285, 31. 12. 1972, p. 32 2.8. 1975, p. 28 30. 10. 1978, p. 1 31. 12. 1982, p. 1 3. 10. 1989, p. 1 Dutch L299, L204, L304, L388, L285, 31. 12. 1972, p. 32 2.8. 1975, p. 28 30. 10. 1978, p. 1 31. 12. 1982, p. 1 3. 10. 1989, p. 1 Spanish L285, L285, L285, L285, L285, 3. 10. 1989, p. 24 3. 10. 1989, p. 37 3. 10. 1989, p. 41 3. 10. 1989, p. 54 3. 10. 1989, p. 1 Portuguese L285, L285, L285, L285, L285, 3. 10. 1989, p. 24 3. 10. 1989, p. 37 3. 10. 1989, p. 41 3. 10. 1989, p.54 3. 10. 1989, p. 1 No. C 189/2 Official Journal of the European Communities 28. 7. 90
CONVENTION
on jurisdiction and the enforcement of judgments in civil and commercial matters (')
(90/C 189/02)
PREAMBLE
THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EURO PEAN ECONOMIC COMMUNITY,
DESIRING to implement the provisions of Article 220 of that Treaty by virtue of which they undertook to secure the simplification of formalities governing the reciprocal recognition and enforcement of judg ments of courts or tribunals;
ANXIOUS to strengthen in the Community the legal protection of persons therein established;
CONSIDERING that it is necessary for this purpose to determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements (2);
HAVE DECIDED to conclude this Convention and to this end have designated as their Plenipotentia ries:
HIS MAJESTY THE KING OF THE BELGIANS: Mr Pierre HARMEL, Minister for Foreign Affairs;
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY: Mr Willy BRANDT, Vice-Chancellor, Minister for Foreign Affairs;
THE PRESIDENT OF THE FRENCH REPUBLIC: Mr Michel DEBRE, Minister for Foreign Affairs;
THE PRESIDENT OF THE ITALIAN REPUBLIC: Mr Giuseppe MEDICI, Minister for Foreign Affairs;
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG: Mr Pierre GREGOIRE, Minister for Foreign Affairs;
(') Text as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Den mark, Ireland and the United Kingdom of Great Britain and Northern Ireland — hereafter referred to as the '1978 Accession Convention' — by the Convention of 25 October 1982 on the accession of the Hellenic Republic — hereafter referred to as the '1982 Accession Convention' — and by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic — hereafter referred to as the '1989 Accession Convention'. (2) The Preamble of the 1989 Accession Convention contained the following text: 'MINDFUL that on 16 September 1988 the Member States of the Community and the Member States of the European Free Trade Association concluded in Lugano the Convention on jurisdic tion and the enforcement of judgments in civil and commercial matters, which extends the princi ples of the Brussels Convention to the States becoming parties to that Convention'. 28. 7. 90 Official Journal of the European Communities No. C 189/3
HER MAJESTY THE QUEEN OF THE NETHERLANDS:
Mr. J. M. A. H. LUNS,
Minister for Foreign Affairs;
WHO, meeting within the Council, having exchanged their Full Powers, found in good and due form,
HAVE AGREED AS FOLLOWS:
TITLE I In particular the following provisions shall not be applicable as against them: SCOPE — in Belgium: Article 15 of the civil code (Code civil Article 1 — Burgerlijk Wetboek) and Article 638 of the judi cial code (Code judiciaire — Gerechtelijk Wet This Convention shall apply in civil and commercial boek), matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or — in Denmark: Article 246 (2) and (3) of the law on administrative matters (')• civil procedure (Lov om rettens pleje) (2),
The Convention shall not apply to: — in the Federal Republic of Germany: Article 23 of the code of civil procedure (ZivilprozeBordnung), 1. the status or legal capacity of natural persons, rights in property arising out of a matrimonial rela — in Greece, Article 40 of the code of civil procedure tionship, wills and succession; (Kcb8iKa<; rioA.iTiKfjg AiKovoulac;), 2. bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judi — in France: Articles 14 and 15 of the civil code cial arrangements, compositions and analogous (Code civil), proceedings; — in Ireland: the rules which enable jurisdiction to be 3. social security; founded on the document instituting the proceed 4. arbitration. ings having been served on the defendant during his temporary presence in Ireland,
TITLE II — in Italy: Articles 2 and 4, Nos 1 and 2 of the code of civil procedure (Codice di procedura civile), JURISDICTION — in Luxembourg: Articles 14 and 15 of the civil code Section 1 (Code civil),
General provisions — in the Netherlands: Articles 126 (3) and 127 of the code of civil procedure (Wetboek van Burgerlijke Article 2 Rechtsvordering),
Subject to the provisions of this Convention, persons — in Portugal: Article 65 (1) (c), Article 65 (2) and domiciled in a Contracting State shall, whatever their Article 65A (c) of the code of civil procedure nationality, be sued in the courts of that State. (Codigo de Processo Civil) and Article 11 of the code of labour procedure (Codigo de Processo de Persons who are not nationals of the State in which Trabalho), they are domiciled shall be governed by the rules of jur isdiction applicable to nationals of that State. — in the United Kingdom: the rules which enable jur isdiction to be founded on:
Article 3 (a) the document instituting the proceedings hav ing been served on the defendant during his Persons domiciled in a Contracting State may be sued temporary presence in the United Kingdom; or in the courts of another Contracting State only by vir tue of the rules set out in Sections 2 to 6 of this Title. (2) As amended by a Communication of 8 February 1988 made in accordance with Article VI of the annexed Proto (') Second sentence added by Article 3 of the 1978 Accession col, and confirmed by Annex I (d) (1) to the 1989 Acces Convention. sion Convention. No. C 189/4 Official Journal of the European Communities 28. 7. 90
(b) the presence within the United Kingdom of unless that jurisdiction is based solely on the property belonging to the defendant; or nationality of one of the parties (3);
(c) the seizure by the plaintiff of property situated 3. in matters relating to tort, delict or quasi-delict, in in the United Kingdom ('). the courts for the place where the harmful event occurred;
4. as regards a civil claim for damages or restitution Article 4 which is based on an act giving rise to criminal proceedings, in the court seised of those proceed ings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings; If the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Article 16, be 5. as regards a dispute arising out of the operations of determined by the law of that State. a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated; As against such a defendant, any person domiciled in a Contracting State may, whatever his nationality, avail 6. as settlor, trustee or beneficiary of a trust created by himself in that State of the rules of jurisdiction there in the operation of a statute, or by a written instru force, and in particular those specified in the second ment, or created orally and evidenced in writing, in the courts of the Contracting State in which the paragraph of Article 3, in the same way as the nationals 4 of that State. trust is domiciled ( );
7) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of Section 2 which the cargo or freight in question:
(a) has been arrested to secure such payment, or Special jurisdiction (b) could have been so arrested, but bail or other security has been given; Article 5 provided that this provision shall apply only if it is claimed that the defendant has an interest in the A person domiciled in a Contracting State may, in cargo or freight or had such an interest at the time another Contracting State, be sued: of salvage (5).
1. in matters relating to a contract, in the courts for the place of performance of the obligation in ques tion; in matters relating to individual contracts of employment, this place is that where the employee Article 6 habitually carries out his work, or if the employee does not habitually carry out his work in any one country, the employer may also be sued in the courts for the place where the business which A person domiciled in a Contracting State may also be engaged the employee was or is now situated (2); sued:
2. in matters relating to maintenance, in the courts for 1. where he is one of a number of defendants, in the the place where the maintenance creditor is domi courts for the place where any one of them is domi ciled or habitually resident or, if the matter is ancil ciled; lary to proceedings concerning the status of a per son, in the court which, according to its own law, 2. as a third party in an action on a warranty or guar has jurisdiction to entertain those proceedings, antee or in any other third party proceedings, in the
(') Second subparagraph as amended by Article 4 of the 1978 (3) Point 2 as amended by Article 5 (3) of the 1978 Accession Accession Convention, by Article 3 of the 1982 Accession Convention. Convention and by Article 3 of the 1989 Accession Con (4) Point 6 added by Article 5 (4) of the 1978 Accession Con vention. vention. (2) Point 1 as amended by Article 4 of the 1989 Accession (5) Point 7 added by Article 5 (4) of the 1978 Accession Con Convention. vention. 28. 7. 90 Official Journal of the European Communities No.C 189/5
court seised of the original proceedings, unless An insurer who is not domiciled in a Contracting State these were instituted solely with the object of but has a branch, agency or other establishment in one removing him from the jurisdiction of the court of the Contracting States shall, in disputes arising out which would be competent in his case; of the operations of the branch, agency or establish ment, be deemed to be domiciled in that State. 3. on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending; Article 9 4. in matters relating to a contract, if the action may be combined with an action against the same In respect of liability insurance or insurance of immov defendant in matters relating to rights in rem in able property, the insurer may in addition be sued in immovable property, in the court of the Contract the courts for the place where the harmful event ing State in which the property is situated (')• occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.
Article 6 a (2)
Article 10 Where by virtue of this Convention a court of a Con tracting State has jurisdiction in actions relating to lia bility from the use or operation of a ship, that court, or In respect of liability insurance, the insurer may also, if any other court substitued for this purpose by the inter the law of the court permits it, be joined in proceedings nal law of that State, shall also have jurisdiction over which the injured party had brought against the claims for limitation of such liability. insured.
The provisions of Articles 7, 8 and 9 shall apply to actions brought by the injured party directly against the Section 3 insurer, where such direct actions are permitted.
Jurisdiction in matters relating to insurance If the law governing such direct actions provides that the policy-holder or the insured may be joined as a party to the action, the same court shall have jurisdic Article 7 tion over them.
In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to the Article 11 provisions of Articles 4 and 5 point 5. Without prejudice to the provisions of the third para graph of Article 10, an insurer may bring proceedings only in the courts of the Contracting State in which the Article 8?) defendant is domiciled, irrespective of whether he is the policy-holder, the insured or a beneficiary.
An insurer domiciled in a Contracting State may be sued: The provisions of this Section shall not affect the right to bring a counterclaim in the court in which, in 1. in the courts of the State where he is domiciled, or accordance with this Section, the original claim is pending. 2. in another Contracting State, in the courts for the place where the policy-holder is domiciled, or
4 3. if he is a co-insurer, in the courts of a Contracting Article 12 ( ) State in which proceedings are brought against the leading insurer. The provisions of this Section may be departed from only by an agreement on jurisdiction: (') Point 4 added by Article 5 of the 1989 Accession Conven tion. 1. which is entered into after the dispute has arisen, or (2) Article added by Article 6 of the 1978 Accession Conven tion. (3) Text as amended by Article 7 of the 1978 Accession Con (4) Text as amended by Article 8 of the 1978 Accession Con vention. vention. No. C 189/6 Official Journal of the European Communities 28. 7. 90
2. which allows the policy-holder, the insured or a in point 1 (a) above, in particular loss of freight or beneficiary to bring proceedings in courts other charter-hire; than those indicated in this Section, or 4. Any risk or interest connected with any of those 3. which is concluded between a policy-holder and an referred to in points 1 to 3 above. insurer, both of whom are domiciled in the same Contracting State, and which has the effect of con ferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided Section 4 (2) that such an agreement is not contrary to the law of that State, or Jurisdiction over consumer contracts 4. which is concluded with a policy-holder who is not domiciled in a Contracting State, except in so far Article 13 as the insurance is compulsory or relates to immov able property in a Contracting State, or In proceedings concerning a contract concluded by a 5. which relates to a contract of insurance in so far as person for a purpose which can be regarded as being it covers one or more of the risks set out in Article outside his trade or profession, hereinafter called 'the 12a. consumer', jurisdiction shall be determined by this Sec tion, without prejudice to the provisions of point 5 of Articles 4 and 5, if it is:
1. a contract for the sale of goods on instalment credit terms; or Article 12a (•) 2. a contract for a loan repayable by instalments, or for any other form of credit, made to finance the The following are the risks referred to in point 5 of sale of goods; or Article 12: 3. any other contract for the supply of goods or a con tract for the supply of services, and 1. Any loss of or damage to: (a) in the State of the consumer's domicile the (a) sea-going ships, installations situated offshore conclusion of the contract was preceded by a or on the high seas, or aircraft, arising from specific invitation addressed to him or by perils which relate to their use for commercial advertising; and purposes; (b) the consumer took in that State the steps neces sary for the conclusion of the contract. (b) goods in transit other than passengers' baggage where the transit consists of or includes car riage by such ships or aircraft; Where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a 2. Any liability, other than for bodily injury to pas branch, agency or other establishment in one of the sengers or loss of or damage to their baggage: Contracting States, that party shall, in disputes arising out of the operations of the branch, agency or estab (a) arising out of the use or operation of ships, lishment, be deemed to be domiciled in that State. installations or aircraft as referred to in point 1 (a) above in so far as the law of the Contract ing State in which such aircraft are registered This Section shall not apply to contracts of transport. does not prohibit agreements on jurisdiction regarding insurance of such risks; Article 14 (b) for loss or damage caused by goods in transit as decribed in point 1 (b) above; A consumer may bring proceedings against the other 3. Any financial loss connected with the use or opera party to a contract either in the courts of the Contract tion of ships, installations or aircraft as referred to ing State in which that party is domiciled or in the
(') Article added by Article 9 of the 1978 Accession Conven (2) Text as amended by Article 10 of the 1978 Accession tion. Convention. 28. 7. 90 Official Journal of the European Communities No. C 189/7 courts of the Contracting State in which he is himself 2. in proceedings which have as their object the valid domiciled. ity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the decisions of their Proceedings may be brought against a consumer by the organs, the courts of the Contracting State in which other party to the contract only in the courts of the the company, legal person or association has its Contracting State in which the consumer is domiciled. seat;
These provisions shall not affect the right to bring a 3. in proceedings which have as their object the valid counter-claim in the court in which, in accordance with ity of entries in public registers, the courts of the this Section, the original claim is pending. Contracting State in which the register is kept;
4. in proceedings concerned with the registration or validity of patents, trade marks, designs, or other Article 15 similar rights required to be deposited or registered, the courts of the Contracting State in which the deposit or registration has been applied for, has The provisions of this Section may be departed from taken place or is under the terms of an interna only by an agreement: tional convention deemed to have taken place; 1. which is entered into after the dispute has arisen; or 5. in proceedings concerned with the enforcement of judgments, the courts of the Contracting State in 2. which allows the consumer to bring proceedings in which the judgment has been or is to be enforced. courts other than those indicated in this Section; or
3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or Section 6 habitually resident in the same Contracting State, and which confers jurisdiction on the courts of that State, provided that such an agreement is not con Prorogation of jurisdiction trary to the law of that State.
Article 17 (2) Section 5
Exclusive jurisdiction If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to Article 16 settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdic The following courts shall have exclusive jurisdiction, tion. Such an agreement conferring jurisdiction shall be regardless of domicile: either: 1. (a) in proceedings which have as their object rights (a) in writing or evidenced in writing; or in rem in immovable property or tenancies of immovable property, the courts of the Con tracting State in which the property is situated; (b) in a form which accords with practices which the parties have established between themselves; or (b) however, in proceedings which have as their object tenancies of immovable property con (c) in international trade or commerce, in a form cluded for temporary private use for a maxi which accords with a usage of which the parties are mum period of six consecutive months, the or ought to have been aware and which in such courts of the Contracting State in which the trade or commerce is widely known to, and regu defendant is domiciled shall also have jurisdic larly observed by, parties to contracts of the type tion, provided that the landlord and the tenant involved in the particular trade or commerce con are natural persons and are domiciled in the cerned. same Contracting State ('); (2) Text as amended by Article 11 of the 1978 Accession (') Point 1 as amended by Article 6 of the 1989 Accession Convention and by Article 7 of the 1989 Accession Con Convention. vention. No. C 189/8 Official Journal of the European Communities 28. 7. 90
Where such an agreement is concluded by parties, none Article 20 of whom is domiciled in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes unless the court or courts chosen Where a defendant domiciled in one Contracting State have declined jurisdiction. is sued in a court of another Contracting State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jur The court or courts of a Contracting State on which a isdiction is derived from the provisions of the Conven trust instrument has conferred jurisdiction shall have tion. exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations The court shall stay the proceedings so long as it is not under the trust are involved. shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange Agreements or provisions of a trust instrument confer for his defence, or that all necessary steps have been ring jurisdiction shall have no legal force if they are taken to this end ('). contrary to the provisions of Articles 12 or 15, or if the courts whose jurisdiction they purport to exlude have exclusive jurisdiction by virtue of Article 16. The provisions of the foregoing paragraph shall be replaced by those of Article 15 of the Hague Conven tion of 15 November 1965 on the service abroad of If an agreement conferring jurisdiction was concluded judicial and extrajudicial documents in civil or com- for the benefit of only one of the parties, that party merical matters, if the document instituting the pro shall retain the right to bring proceedings in any other ceedings or notice thereof had to be transmitted abroad court which has jurisdiction by virtue of this Conven in accordance with that Convention. tion.
In matters relating to individual contracts of employ Section 8 ment an agreement conferring jurisdiction shall have legal force only if it entered into after the dispute has arisen or if the employee invokes it to seise courts other than those for the defendant's domicile or those speci Lis pendens — related actions fied in Article 5 (1). Article 21 (2)
Article 18 Where proceedings involving the same cause of action and between the same parties are brought in the courts Apart from jurisdiction derived from other provisions of different Contracting States, any court other than the of this Convention, a court of a Contracting State court first seised shall of its own motion stay its pro before whom a defendant enters an appearance shall ceedings until such time as the jurisdiction of the court have jurisdiction. This rule shall not apply where first seised is established. appearance was entered solely to contest the jurisdic tion, or where another court has exclusive jurisdiction by virtue of Article 16. Where the jurisdiction of the court first seised is estab lished, any court other than the court first seised shall decline jurisdiction in favour of that court.
Section 7 Article 22 Examination as to jurisdiction and admissibility Where related actions are brought in the courts of dif Article 19 ferent Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings. Where a court of a Contracting State is seised of a claim which is principally concerned with a matter over (') Second subparagraph as amended by Article 12 of the which the courts of another Contracting State have 1978 Accession Convention. exclusive jurisdiction by virtue of Article 16, it shall (2) Text as amended by Article 8 of the 1989 Accession Con declare of its own motion that it has no jurisdiction. vention. 28. 7. 90 Official Journal of the European Communities No. C 189/9
A court other than the court first seised may also, on accordance with the procedures provided for in Sec the application of one of the parties, decline jurisdic tions 2 and 3 of this Title, apply for a decision that the tion if the law of that court permits the consolidation of judgment be recognized. related actions and the court first seised has jurisdiction over both actions.
For the purposes of this Article, actions are deemed to If the outcome of proceedings in a court of a Contract be related where they are so closely connected that it is ing State depends on the determination of an inciden expedient to hear and determine them together to avoid tal question of recognition that court shall have juris the risk of irreconcilable judgments resulting from diction over that question. separate proceedings.
Article 23
Where actions come within the exclusive jurisdiction of Article 27 several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.
Section 9 A judgment shall not be recognized:
Provisional, including protective, measures 1. if such recognition is contrary to public policy in the State in which recognition is sought; Article 24
Application may be made to the courts of a Contract 2. where it was given in default of appearance, if the ing State for such provisional, including protective, defendant was not duly served with the document measures as may be available under the law of that which instituted the proceedings or with an equiva State, even if, under this Convention, the courts of lent document in sufficient time to enable him to another Contracting State have jurisdiction as to the arrange for his defence ('); substance of the matter. 3. if the judgment is irreconcilable with a judgment given in a dispute between the same parties in the TITLE III State in which recognition is sought;
RECOGNITION AND ENFORCEMENT 4. if the court of the State of origin, in order to arrive Article 25 at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matri For the purposes of this Convention, 'judgment' means monial relationship, wills or succession in a way any judgment given by a court or tribunal of a Con that conflicts with a rule of the private interna tracting State, whatever the judgment may be called, tional law of the State in which the recognition is including a decree, order, decision or writ of execution, sought, unless the same result would have been as well as the determination of costs or expenses by an reached by the application of the rules of private officer of the court. international law of that State (2);
Section 1 5. if the judgment is irreconcilable with an earlier judgment given in a non-contracting State involv Recognition ing the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition in the Article 26 state addressed (3).
A judgment given in a Contracting State shall be recog (') Point 2 as amended by Article 13 (1) of the 1978 Acces nized in the other Contracting States without any sion Convention. special procedure being required. (2) Point 4 as amended by Annex I (a) (2) first subparagraph to the 1989 Accession Convention. (3) Point 5 added by Article 13 (2) of the 1978 Accession Any interested party who raises the recognition of a Convention and amended by Annex I (d) (2) second sub judgment as the principal issue in a dispute may, in paragraph to the 1989 Accession Convention. No.C 189/10 Official Journal of the European Communities 28. 7. 90
Article 28 However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any Moreover, a judgment shall not be recognized if it con interested party, it has been registered for enforcement flicts with the provisions of Sections 3, 4 or 5 of Title in that part of the United Kingdom (5). II, or in a case provided for in Article 59.
In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or Article 32 authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction (')• 1. The application shall be submitted:
— in Belgium, to the tribunal de premiere instance or Subject to the provisions of the first paragraph, the jur rechtbank van eerste aanleg, isdiction of the court of the State of origin may not be reviewed; the test of public policy referred to in point 1 — in Denmark, to the byret (6), of Article 27 may not be applied to the rules relating to jurisdiction (2). — in the Federal Republic of Germany, to the presid ing judge of a chamber of the Landgericht,
— in Greece, to the Movou.e^e£ n.p(OTo8iKeto, Article 29 — in Spain, to the Juzgado de Primera Instancia, Under no circumstances may a foreign judgment be reviewed as to its substance. — in France, to the presiding judge of the tribunal de grande instance,
— in Ireland, to the High Court, Article 30 — in Italy, to the corte d'appello, A court of a Contracting State in which recognition is — in Luxembourg, to the presiding judge of the tri sought of a judgment given in another Contracting bunal d'arrondissement, State may stay the proceedings if an ordinary appeal against the judgment has been lodged. — in the Netherlands, to the presiding judge of the arrondissementsrechtbank, A court of a Contracting State in which recognition is sought of a judgment given in Ireland or the United — in Portugal, to the Tribunal Judicial de Circulo, Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an — in the United Kingdom: appeal (3). 1. in England and Wales, to the High Court of Justice, or in the case of maintenance judg ment to the Magistrates' Court on transmission Section 2 by the Secretary of State;
2. in Scotland, to the Court of Session, or in the Enforcement case of a maintenance judgment to the Sheriff Court on transmission by the Secretary of Article 31 State;
3. in Northern Ireland, to the High Court of Jus A judgment given in a Contracting State and enforcea tice, or in the case of a maintenance judgment ble in that State shall be enforced in another Contract to the Magistrates' Court on transmission by ing State when, on the application of any interested the Secretary of State (7). party, it has been declared enforceable there (4).
(5) Second subparagraph added by Article 15 of the 1978 (') As amended by Annex I (d) (3) first subparagraph to the Accession Convention. 1989 Accession Convention. (6) As amended by a Communication of 8 February 1988 (2) As amended by Annex I (d) (3) second subparagraph to made in accordance with Article VI of the annexed Proto the 1989 Accession Convention. col, and confirmed by Annex I (d) (5) to the 1989 Acces (3) Second subparagraph added by Article 14 of the 1978 sion Convention. Accession Convention and amended by Annex I (d) (4) to (7) First subparagraph as amended by Article 16 of the 1978 the 1989 Accession Convention. Accession Convention, by Article 4 of the 1982 Accession (4) Text as amended by Article 9 of the 1989 Accession Con Convention and by Article 10 of the 1989 Accession Con vention. vention. 28. 7. 90 Official Journal of the European Communities No. C 189/11
2. The jurisdiction of local courts shall be determined Article 37 (x) by reference to the place of domicile of the party against whom enforcement is sought. If he is not domi ciled in the State in which enforcement is sought, it 1. An appeal against the decision authorizing enforce shall be determined by reference to the place of ment shall be lodged in accordance with the rules gov enforcement. erning procedure in contentious matters: — in Belgium, with the tribunal de premiere instance or rechtbank van eerste aanleg, Article 33 — in Denmark, with the landsret, The procedure for making the application shall be gov erned by the law of the State in which enforcement is — in the Federal Republic of Germany, with the sought. Oberlandesgericht, — in Greece, with the EcpexEio, The applicant must give an address for service of pro cess within the area of jurisdiction of the court applied — in Spain, with the Audiencia Provincial, to. However, if the law of the State in which enforce ment is sought does not provide for the furnishing of — in France, with the cour d'appel, such an address, the applicant shall appoint a represen tative ad litem. — in Ireland, with the High Court,
— in Italy, with the corte d'appello, The documents referred to in Articles 46 and 47 shall be attached to the application. — in Luxembourg, with the Cour superieure de justice sitting as a court of civil appeal,
Article 34 — in the Netherlands, with the arrondissementsrecht- bank,
The court applied to shall give its decision without — in Portugal, with the Tribunal de Relacao, delay; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to — in the United Kingdom: make any submissions on the application. (a) in England and Wales, with the High Court of The application may be refused only for one of the rea Justice, or in the case of a maintenance judg sons specified in Articles 27 and 28. ment with the Magistrates' Court; (b) in Scotland, with the Court of Session, or in Under no circumstances may the foreign judgment be the case of a maintenance judgment with the reviewed as to its substance. Sheriff Court;
(c) in Northern Ireland, with the High Court of Article 35 Justice, or in the case of a maintenance judg ment with the Magistrates' Court. The appropriate officer of the court shall without delay bring the decision given on the application to the not 2. The judgment given on the appeal may be con ice of the applicant in accordance with the procedure tested only: laid down by the law of the State in which enforcement is sought. — in Belgium, Greece, Spain, France, Italy, Luxem bourg and in the Netherlands, by an appeal in cas sation, Article 36 — in Denmark, by an appeal to the hojesteret, with the leave of the Minister of Justice, If enforcement is authorized, the party against whom enforcement is sought may appeal against the decision — in the Federal Republic of Germany, by a within one month of service thereof. Rechtsbeschwerde,
If that party is domiciled in a Contracting State other — in Ireland, by an appeal on a point of law to the than that in which the decision authorizing enforce Supreme Court, ment was given, the time for appealing shall be two months and shall run from the date of service, either on (') Text as amended by Article 17 of the 1978 Accession him in person or at his residence. No extension of time Convention, by Article 5 of the 1982 Accession Conven may be granted on account of distance. tion and by Article 11 of the 1989 Accession Convention. No. C 189/12 Official Journal of the European Communities 28. 7. 90
in Portugal, by an appeal on a point of law, — in Ireland, to the High Court,
in the United Kingdom, by a single further appeal — in Italy, to the corte d'appello, on a point of law. — in Luxembourg, to the Cour superieure de justice sitting as a court of civil appeal, Article 38 — in the Netherlands, to the gerechtshof,
The court with which the appeal under Article 37 (1) is — in Portugal, to the Tribunal da Relacao, lodged may, on the application of the appellant, stay the proceedings if an ordinary appeal has been lodged — in the United Kingdom: against the judgment in the State of origin or if the time for such an appeal has not yet expired; in the latter (a) in England and Wales, to the High Court of case, the court may specify the time within which such Justice, or in the case of a maintenance judg an appeal is to be lodged (•). ment to the Magistrates' Court;
(b) in Scotland, to the Court of Session, or in the Where the judgment was given in Ireland or the United case of a maintenance judgment to the Sheriff Kingdom, any form of appeal available in the State of Court; origin shall be treated as an ordinary appeal for the 2 purposes of the first paragraph ( ). (c) in Northern Ireland, to the High Court of Jus tice, or in the case of a maintenance judgment to the Magistrates' Court (3). The court may also make enforcement conditional on the provision of such security as it shall determine. 2. The party against whom enforcement is sought shall be summoned to appear before the appellate Article 39 court. If he fails to appear, the provisions of the second and third paragraphs of Article 20 shall apply even where he is not domiciled in any of the Contracting During the time specified for an appeal pursuant to States. Article 36 and until any such appeal has been deter mined, no measures of enforcement may be taken other than protective measures taken against the property of the party against whom enforcement is sought. Article 41 (4)
The decision authorizing enforcement shall carry with it the power to proceed to any such protective mea A judgment given on an appeal provided for in Article sures. 40 may be contested only: — in Belgium, Greece, Spain, France, Italy, Luxem bourg and in the Netherlands, by an appeal in cas Article 40 sation,
— in Denmark, by an appeal to the hejesteret, with If the application for enforcement is refused, the appli the leave of the Minister of Justice, cant may appeal: — in the Federal Republic of Germany, by a — in Belgium, to the cour d'appel or hof van beroep, Rechtsbeschwerde, — in Denmark, to the landsret, — in Ireland, by an appeal on a point of law to the — in the Federal Republic of Germany, to the Ober- Supreme Court, landesgericht, — in Portugal, by an appeal on a point of law, — in Greece, to the Ecpeteio, — in the United Kingdom, by a single further appeal — in Spain, to the Audiencia Provincial, on a point of law. — in France, to the court d'appel, (3) First subparagraph as amended by Article 19 of the 1978 Accession Convention, by Article 6 of the 1982 Accession (') As amended by Annex I (d) (6) first subparagraph to the Convention and by Article 12 of the 1989 Accession Con 1989 Accession Convention. vention. (2) Second subparagraph added by Article 18 of the 1978 (4) Text as amended by Article 20 of the 1978 Accession Accession Convention and amended by Annex I (d) (6) Convention, by Article 7 of the 1982 Accession Conven second subparagraph to the 1989 Accession Convention. tion and by Article 13 of the 1989 Accession Convention. 28. 7. 90 Official Journal of the European Communities No. C 189/13
Article 42 Section 3
Where a foreign judgment has been given in respect of Common provisions several matters and enforcement cannot be authorized for all of them, the court shall authorize enforcement Article 46 for one or more of them.
A party seeking recognition or applying for enforce An applicant may request partial enforcement of a ment of a judgment shall produce: judgment. 1. a copy of the judgment which satisfies the condi tions necessary to establish its authenticity;
Article 43 2. in the case of a judgment given in default, the ori ginal or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceed A foreign judgment which orders a periodic payment 3 by way of a penalty shall be enforceable in the State in ings or with an equivalent document ( ). which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin ('). Article 47(*)
A party applying for enforcement shall also produce: Article 44 (2) 1. documents which establish that, according to the law of the State of origin the judgment is enforce An applicant who, in the State of origin has benefited able and has been served; from complete or partial legal aid or exemption from 2. where appropriate, a document showing that the costs or expenses, shall be entitled, in the procedures applicant is in receipt of legal aid in the State of provided for in Articles 32 to 35, to benefit from the origin. most favourable legal aid or the most extensive exemp tion from costs or expenses provided for by the law of the State addressed. Article 48 However, an applicant who requests the enforcement of a decision given by an administrative authority in If the documents specified in point 2 of Articles 46 and Denmark in respect of a maintenance order may, in the 47 are not produced, the court may specify a time for State addressed, claim the benefits referred to in the their production, accept equivalent documents or, if it first paragraph if he presents a statement from the Dan considers that it has sufficient information before it, ish Ministry of Justice to the effect that he fulfils the dispense with their production. economic requirements to qualify for the grant of com plete or partial legal aid or exemption from costs or expenses. If the court so requires, a translation of the documents shall be produced; the translation shall be certified by a person qualified to do so in one of the Contracting States. Article 45
Article 49 No security, bond or deposit, however described, shall be required of a party who in one Contracting State applies for enforcement of a judgment given in another No legalization or other similar formality shall be Contracting State on the ground that he is a foreign required in respect of the documents referred to in Arti national or that he is not domiciled or resident in the cles 46 or 47 or the second paragraph of Article 48, or State in which enforcement is sought. in respect of a document appointing a representative ad litem.
(') As amended by Annex I (d) (7) to the 1989 Accession Convention. (3) Point 2 as amended by Article 22 of the 1978 Accession (2) Text as amended by Article 21 of the 1978 Accession Convention. Convention and by Annex I (d) (8) to the 1989 Accession (4) As amended by Annex I (d) (9) to the 1989 Accession Convention. Convention. No.C 189/14 Official Journal of the European Communities 28. 7. 90
TITLE IV In order to determine whether a trust is domiciled in the Contracting State whose courts are seised of the AUTHENTIC INSTRUMENTS AND COURT matter, the court shall apply its rules of private interna SETTLEMENTS tional law (4).
Article 50
A document which has been formally drawn up or registered as an authentic instrument and is enforce TITLE VI able in one Contracting State shall, in another Con tracting State, be declared enforceable there, on appli cation made in accordance with the procedures pro vided for in Article 31 et seq. The application may be TRANSITIONAL PROVISIONS refused only if enforcement of the instrument is con trary to public policy in the State addressed (').
The instrument produced must satisfy the conditions Article 54 (5) necessary to establish its authenticity in the State of ori gin.
The provisions of Section 3 of Title III shall apply as The provisions of the Convention shall apply only to appropriate. 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 recog Article 51 nition or enforcement of a judgment or authentic instruments is sought, in the State addressed. A settlement which has been approved by a court in the course of proceedings and is enforceable in the State in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic However, judgments given after the date of entry into instruments (2). force of this Convention between the State of origin and the State addressed in proceedings instituted before that date shall be recognized and enforced in TITLE V accordance with the provisions of Title III if jurisdic tion was founded upon rules which accorded with GENERAL PROVISIONS those provided for either in Title II of this Convention or in a convention concluded between the State of ori Article 52 gin and the State addressed which was in force when the proceedings were instituted (6). In order to determine whether a party is domiciled in the Contracting State whose courts are seised of a mat (4) Second subparagraph added by Article 23 of the 1978 ter, the Court shall apply its internal law. Accession Convention. (5) Text as replaced by Article 16 of the 1989 Accession Con If a party is not domiciled in the State whose courts are vention. (6) Title V of the 1978 Accession Convention contains the seised of the matter, then, in order to determine following transitional provisions: whether the party is domiciled in another Contracting 'Article 34 State, the court shall apply the law of that State. 1. The 1968 Convention and the 1971 Protocol, with the amendments made by this Convention, shall apply only to legal proceedings instituted and to authentic instru • • • (3)- ments formally drawn up or registered after the entry into force of this Convention in the State of origin and, where recognition or enforcement of a judgment or authentic Article 53 instrument is sought, in the State addressed. 2. However, as between the six Contracting States to the 1968 Convention, judgments given after the date of entry For the purposes of this Convention, the seat of a com into force of this Convention in proceedings instituted pany or other legal person or association of natural or before that date shall be recognized and enforced in legal persons shall be treated as its, domicile. However, accordance with the provisions of Title III of the 1968 Convention as amended. in order to determine that seat, the court shall apply its 3. Moreover, as between the six Contracting States to rules of private international law. the 1968 Convention and the three States mentioned in Article 1 of this Convention, and as between those three States, judgments given after the date of entry into force (') First paragraph as amended by Article 14 of the 1989 of this Convention between the State of origin and the Accession Convention. State addressed in proceedings instituted before that date (2) As amended by Annex I (d) (10) to the 1989 Accession shall also be recognized and enforced in accordance with Convention. the provisions of Title III of the 1968 Convention as (3) Third paragraph deleted by Article 15 of the 1989 Acces amended if jurisdiction was founded upon rules which sion Convention. accorded with the provisions of Title II, as amended, or 28. 7. 90 Official Journal of the European Communities No. C 189/15
If the parties to a dispute concerning a contract had Article 54a (2) agreed in writing before 1 June 1988 for Ireland or before 1 January 1987 for the United Kingdom that the contract was to be governed by the law of Ireland or of a part of the United Kingdom, the courts of Ireland or of that part of the United Kingdom shall retain the For a period of three years from 1 November 1986 for right to exercise jurisdiction in the dispute (')• Denmark and from 1 June 1988 for Ireland, jurisdiction in maritime matters shall be determined in these States not only in accordance with the provisions of Title II, but also in accordance with the provisions of para graphs 1 to 6 following. However, upon the entry into force of the International Convention relating to the arrest of sea-going ships, signed at Brussels on 10 May 1952, for one of these States, these provisions shall cease to have effect for that State.
A person who is domiciled in a Contracting State may be sued in the courts of one of the States men tioned above in respect of a maritime claim if the (cont'd) ship to which the claim relates or any other ship with provisions of a convention concluded between the owned by him has been arrested by judicial process State of origin and the State addressed which was in force within the territory of the latter State to secure the when the proceedings were instituted.' Title V of the 1982 Accession Convention contains the claim, or could have been so arrested there but bail following transitional provisions: or other security has been given, and either: 'Article 12 1. The 1968 Convention and the 1971 Protocol, as amended by the 1978 Convention, shall apply only to (a) the claimant is domiciled in the latter State; or legal proceedings instituted and to authentic instruments formally drawn up or registered after the entry into force of this Convention in the State of origin and, where recognition or enforcement of a judgment or authentic (b) the claim arose in the latter State; or instrument is sought, in the State addressed. 2. However, as between the State of origin and the State addressed, judgments given after the date of entry into (c) the claim concerns the voyage during which force of this Convention in proceedings instituted before the arrest was made or could have been made; that date shall be recognized and enforced in accordance or with the provisions of Title III of the 1968 Convention, as amended by the 1978 Convention, and by this Conven tion if jurisdiction was founded upon rules which accorded with the provisions of Title II, as amended by (d) the claim arises out of a collision or out of the 1968 Convention or with provisions of a convention damage caused by a ship to another ship or to concluded between the State of origin and the State goods or persons on board either ship, either addressed which was in force when the proceedings were by the execution or non-execution of a man instituted.' Title VI of the 1989 Accession Convention contains the oeuvre or by the non-observance of regula following transitional provisions: tions; or 'Article 29 1. The 1968 Convention and the 1971 Protocol, as amended by the 1978 Convention, the 1982 Convention (e) the claim is for salvage; or and this Convention, shall apply only to legal proceed ings instituted and to authentic instruments formally drawn up or registered after the entry into force of this Convention in the State of origin and, where recognition (f) the claim is in respect of a mortgage or hypoth or enforcement of a judgment or authentic instrument is ecation of the ship arrested. sought, in the State addressed. 2. However, judgments given after the date of entry into force of this Convention between the State of origin and the State addressed in proceedings instituted before that date shall be recognized and enforced in accordance with 2. A claimant may arrest either the particular ship to the provisions of Title III of the 1968 Convention, as which the maritime claim relates, or any other ship amended by the 1978 Convention, the 1982 Convention which is owned by the person who was, at the time and this Convention, if jurisdiction was founded upon rules which accorded with the provisions of Title II of the when the maritime claim arose, the owner of the 1968 Convention, as amended, or with the provisions of a particular ship. However, only the particular ship convention which was in force between the State of origin and the State addressed when the proceedings were insti tuted.' (2) Article added by Article 17 of the 1989 Accession Con (') This paragraph replaces Article 35 of Title V of the 1978 vention. It corresponds to Article 36 of Title V of the 1978 Accession Convention which was extended to the Hel Accession Convention which was extended to the Hel lenic Republic by Article 1 (2) of the 1982 Accession Con lenic Republic by Article 1 (2) of the 1982 Accession Con vention. Article 28 of the 1989 Accession Convention vention. Article 28 of the 1989 Accession Convention provided for the deletion of both these provisions. provided for the deletion of both these provisions. No. C 189/16 Official Journal of the European Communities 28. 7. 90
to which the maritime claim relates may be arrested 6. In Denmark, the expression 'arrest' shall be in respect of the maritime claims set out in (5) (o), deemed as regards the maritime claims referred to (p) or (q) of this Article. in 5 (o) and (p) of this Article, to include a 'forbud', where that is the only procedure allowed in respect 3. Ships shall be deemed to be in the same ownership of such a claim under Articles 646 to 653 of the law when all the shares therein are owned by the same on civil procedure (lov om rettens pleje). person or persons. 4. When in the case of a charter by demise of a ship the charterer alone is liable in respect of a maritime TITLE VII claim relating to that ship, the claimant may arrest that ship or any other ship owned by the charterer, but no other ship owned by the owner may be RELATIONSHIP TO OTHER CONVENTIONS arrested in respect of such claim. The same shall apply to any case in which a person other than the owner of a ship is liable in respect of a maritime Article 55 claim relating to that ship.
5. The expression 'maritime claim' means a claim Subject to the provisions of the second subparagraph arising out of one or more of the following: of Article 54, and of Article 56, this Convention shall, for the States which are parties to it, supersede the fol (a) damage caused by any ship either in collision lowing conventions concluded between two or more of or otherwise; them:
(b) loss of life or personal injury caused by any — the Convention between Belgium and France on ship or occurring in connection with the opera jurisdiction and the validity and enforcement of tion on any ship; judgments, arbitration awards and authentic instru ments, signed at Paris on 8 July 1899, (c) salvage; — the Convention between Belgium and the Nether (d) agreement relating to the use or hire of any lands on jurisdiction, bankruptcy, and the validity ship whether by charterparty or otherwise; and enforcement of judgments, arbitration awards and authentic instruments, signed at Brussels on (e) agreement relating to the carriage of goods in 28 March 1925, any ship whether by charterparty or otherwise;
(f) loss of or damage to goods including baggage — the Convention between France and Italy on the enforcement of judgments in civil and commercial carried in any ship; matters, signed at Rome on 3 June 1930, (g) general average; — the Convention between the United Kingdom and (h) bottomry; the French Republic providing for the reciprocal enforcement of judgments in civil and commercial (i) towage; matters, with Protocol, signed at Paris on 18 Janu ary 1934(l), (j) pilotage; — the Convention between the United Kingdom and (k) goods or materials wherever supplied to a ship the Kingdom of Belgium providing for the recipro for her operation or maintenance; cal enforcement of judgments in civil and commer cial matters, with Protocol, signed at Brussels on (1) construction, repair or equipment of any ship 2 May 1934 ('), or dock charges and dues; — the Convention between Germany and Italy on the (m) wages of masters, officers or crew; recognition and enforcement of judgments in civil and commercial matters, signed at Rome on 9 (n) mater's disbursements, including disburse March 1936, ments made by shippers, charterers or agents on behalf of a ship or her owner; — the Convention between the Federal Republic of Germany and the Kingdom of Belgium on the (o) dispute as to the title to or ownership of any mutual recognition and enforcement of judgments, ship; arbitration awards and authentic instruments in civil and commercial matters, signed at Bonn on (p) disputes between co-owners of any ship as to 30 June 1958, the ownership, possession, employment or earnings of that ship; (') Fourth and fifth indents added by Article 24 of the 1978 (q) the mortgage or hypothecation of any ship. Accession Convention. 28. 7. 90 Official Journal of the European Communities No. C 189/17
— the Convention between the Kingdom of the Neth — the Convention between Spain and the Federal erlands and the Italian Republic on the recognition Republic of Germany on the recognition and and enforcement of judgments in civil and com enforcement of judgments, settlements and mercial matters, signed at Rome on 17 April 1959, enforceable authentic instruments in civil and com mercial matters, signed at Bonn on 14 November 1983 (4), — the Convention between the United Kingdom and the Federal Republic of Germany for the reciprocal and, in so far as it is in force: recognition and enforcement of judgments in civil and commercial matters, signed at Bonn on 14 July — the Treaty between Belgium, the Netherlands and 1960(i), Luxembourg on jurisdiction, bankruptcy, and the validity and enforcement of judgments, arbitration — the Convention between the Kingdom of Greece awards and authentic instruments, signed at Brus and the Federal Republic of Germany for the reci sels on 24 November 1961. procal recognition and enforcement of judgments, settlements and authentic instruments in civil and commercial matters, signed in Athens on 4 Novem Article 56 ber 1961 (2), The Treaty and the conventions referred to in Article 55 — the Convention between the Kingdom of Belgium shall continue to have effect in relation to matters to and the Italian Republic on the recognition and which this Convention does not apply. enforcement of judgments and other enforceable instruments in civil and commercial matters, signed They shall continue to have effect in respect of judg at Rome on 6 April 1962, ments given and documents formally drawn up or registered as authentic instruments before the entry into force of this Convention. — the Convention between the Kingdom of the Neth erlands and the Federal Republic of Germany on the mutual recognition and enforcement of judg ments and other enforceable instruments in civil Article 57 and commercial matters, signed at The Hague on 30 August 1962, 1. This Convention shall not affect any conventions to which the Contracting States are or will be parties — the Convention between the United Kingdom and and which in relation to particular matters, govern jur isdiction or the recognition or enforcement of judg the Republic of Italy for the reciprocal recognition 5 and enforcement of judgments in civil and com ments ( ). mercial matters, signed at Rome on 7 February 1964, with amending Protocol signed at Rome on 2. With a view to its uniform interpretation, para 14 July 1970(3), graph 1 shall be applied in the following manner:
(a) this Convention shall not prevent a court of a Con — the Convention between the United Kingdom and tracting State which is a party to a convention on a the Kingdom of the Netherlands providing for the particular matter from assuming jurisdiction in reciprocal recognition and enforcement of judg accordance with that Convention, even where the ments in civil matters, signed at The Hague on defendant is domiciled in another Contracting 17 November 1967(3), State which is not a party to that Convention. The court hearing the action shall, in any event, apply — the Convention between Spain and France on the Article 20 of this Convention; recognition and enforcement of judgment arbitra tion awards in civil and commercial matters, signed (b) judgments given in a Contracting State by a court at Paris on 28 May 1969 (4), in the exercise of jurisdiction provided for in a con vention on a particular matter shall be recognized and enforced in the other Contracting State in — the Convention between Spain and Italy regarding accordance with this Convention. legal aid and the recognition and enforcement of judgments in civil and commercial matters, signed Where a convention on a particular matter to at Madrid on 22 May 1973 (4), which both the State of origin and the State addressed are parties lays down conditions for the recognition or enforcement of judgments, those (') Ninth indent added by Article 24 of the 1978 Accession Convention. conditions shall apply. In any event, the provisions (2) 10th indent added by Article 8 of the 1982 Accession of this Convention which concern the procedure Convention. (3) 13th and 14th indents added by Article 24 of the 1978 Accession Convention. (5) First paragraph as amended by Article 25 (1) of the 1978 (4) 15th, 16th and 17th indents added by Article 18 of the Accession Convention and by Article 19 of the 1989 1989 Accession Convention. Accession Convention. No.C 189/18 Official Journal of the European Communities 28. 7. 90
for recognition and enforcement of judgments may obtain authority to dispose of it, or arises from be applied (•). another issue relating to such property; or 2. if the property constitutes the security for a debt which is the subject-matter of the action (4). 3. This Convention shall not affect the application of provisions which, in relation to particular matters, gov ern jurisdiction or the recognition or enforcement of judgments and which are or will be contained in acts of TITLE VIII the institutions of the European Communities or in national laws harmonized in implementation of such FINAL PROVISIONS acts (2). Article 60
5 Article 58 Q) • • • ( )-
Article 61 («) Until such time as the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Lugano on 16 September 1988, takes This Convention shall be ratified by the signatory effect with regard to France and the Swiss Confedera States. The instruments of ratification shall be depos tion, this Convention shall not affect the rights granted ited with the Secretary-General of the Council of the to Swiss nationals by the Convention between France European Communities. and the Swiss Confederation on jurisdiction and enforcement of judgments in civil matters, signed at Paris on 15 June 1869. Article 62 (7)
This Convention shall enter into force on the first day of the third month following the deposit of the instru Article 59 ment of ratification by the last signatory State to take this step.
This Convention shall not prevent a Contracting State from assuming, in a convention on the recognition and Article 63 enforcement of judgments, an obligation towards a third State not to recognize judgments given in other The Contracting States recognize that any State which Contracting States against defendants domiciled or becomes a member of the European Economic Com- habitually resident in the third State where, in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction specified in the (4) Second subparagraph added by Article 26 of the 1978 Accession Convention. second paragraph of Article 3. (5) Article 21 of the 1989 Accession Convention provides for the deletion of Article 60 as amended by Article 27 of the 1978 Convention. (6) Ratification of the 1978. and 1982 Accession Conventions However, a Contracting State may not assume an obli was governed by Articles 38 and 14 of those Conventions. gation towards a third State not to recognize a judg The ratification of the 1989 Accession Convention is gov ment given in another Contracting State by a court bas erned by Article 31 of that Convention, which reads as ing its jurisdiction on the presence within that State of follows: 'Article 31 property belonging to the defendant, or the seizure by This Convention shall be ratified by the signatory States. the plaintiff of property situated there: The instruments of ratification shall be deposited with the Secretary-General of the Council of the European Com munities.' 1. if the action is brought to assert or declare proprie (7) The entry into force of the 1978 and 1982 Accession Con tary or possessory rights in that property, seeks to ventions was governed by Articles 39 and 15 of those Conventions. The entry into force of the 1989 Accession Convention is (') Paragraph 2 added by Article 19 of the 1989 Accession governed by Article 32 of that Convention, which reads as Convention. This paragraph corresponds to Article 25 (2) follows: of the 1978 Accession Convention which was extended to 'Article 32 the Hellenic Republic by Article 1 (2) of the 1982 Acces 1. This Convention shall enter into force on the first day sion Convention. Article 28 of the 1989 Accession Con of the third month following the date on which two signa vention provided for the deletion of both these provi tory States, of which one is the Kingdom of Spain or the sions. Portuguese Republic, deposit their instruments of ratifica (2) Paragraph added by Article 25 (1) of the 1978 Accession tion. Convention. 2. This Convention shall take effect in relation to any (3) Text as amended by Article 20 of the 1989 Accession other signatory State on the first day of the third month Convention. following the deposit of its instrument of ratification.' 28. 7. 90 Official Journal of the European Communities No. C 189/19 munity shall be required to accept this Convention as a Article 68?) basis for the negotiations between the Contracting States and that State necessary to ensure the implemen tation of the last paragraph of Article 220 of the Treaty This Convention, drawn up in a single original in the establishing the European Economic Community. Dutch, French, German and Italian languages, all four texts being equally authentic, shall be deposited in the archives of the Secretariat of the Council of the Euro The necessary adjustments may be the subject of a pean Communities. The Secretary-General shall trans special convention between the Contracting States of mit a certified copy to the Government of each signa the one part and the new Member States of the other tory State (4). part.
Article 64 (*) (3) An indication of the authentic texts of the Accession Conventions is to be found in the following provisions: The Secretary-General of the Council of the European — with regard to the 1978 Accession Convention, in Communities shall notify the signatory States of: Article 41 of that Convention, which reads as follows: 'Article 41 (a) the deposit of each instrument of ratification; This Convention, drawn up in a single original in the Danish, Dutch, English, French, German, Irish and (b) the date of entry into force of this Convention; Italian languages, all seven texts being equally authentic, shall be deposited in the archives of the 2 Secretariat of the Council of the European Communi (c) ...( ); ties. The Secretary-General shall transmit a certified copy to the Government of each signatory State.' (d) any declaration received pursuant to Article IV of — with regard to the 1982 Accession Convention, in the Protocol; Article 17 of that Convention, which reads as follows: 'Article 17 (e) any communication made pursuant to Article VI of This Convention, drawn up in a single original in the the Protocol. Danish, Dutch, English, French, German, Greek, Irish and Italian languages, all eight texts being equally authentic, shall be deposited in the archives of the General Secretariat of the Council of the European Communities. The Secretary-General shall transmit a Article 65 certified copy to the Government of each signatory State.' — with regard to the 1989 Accession Convention, in The Protocol annexed to this Convention by common Article 34 of that Convention, which reads as follows: accord of the Contracting States shall form an integral 'Article 34 part thereof. This Convention, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, all 10 texts being equally authentic, shall be deposited in Article 66 the archives of the General Secretariat of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each signatory State.' This Convention is concluded for an unlimited period. (4) Legal backing for the drawing-up of the authentic texts of the 1968 Convention in the official languages of the acceding Member States is to be found: — with regard to the 1978 Accession Convention, in Article 67 Article 37 of that Convention, which reads as follows: 'Article 37 The Secretary-General of the Council of the European Any Contracting State may request the revision of this Communities shall transmit a certified copy of the Convention. In this event, a revision conference shall 1968 Convention and of the 1971 Protocol in the Dutch, French, German and Italian languages to the be convened by the President of the Council of the Governments of the Kingdom of Denmark, Ireland European Communities. and the United Kingdom of Great Britain and North ern Ireland. The texts of the 1968 Convention and the 1971 Proto (') Notification concerning the 1978 and 1982 Accession col, drawn up in the Danish, English and Irish lan Conventions is governed by Articles 40 and 16 of those guages, shall be annexed to this Convention. The texts Conventions. drawn up in the Danish, English and Irish languages Notification concerning the 1989 Accession Convention shall be authentic under the same conditions as the is governed by Article 33 of that Convention, which reads original texts of the 1968 Convention and the 1971 as follows: Protocol.' 'Article 33 — with regard to the 1982 Accession Convention, in The Secretary-General of the Council of the European Article 13 of that Convention, which reads as follows: Communities shall notify the signatory States of: 'Article 13 (a) the deposit of each instrument of ratification; The Secretary-General of the Council of the European (b) the dates of entry into force of this Convention for Communities shall transmit a certified copy of the the Contracting States.' 1968 Convention, of the 1971 Protocol and of the 1978 (2) Article 22 of the 1989 Accession Convention provides for Convention in the Danish, Dutch, English, French, the deletion of letter (c) as amended by Article 28 of the German, Irish and Italian languages to the Govern 1978 Accession Convention. ment of the Hellenic Republic. No. C 189/20 Official Journal of the European Communities 28. 7. 90
(cont'd) Convention and of the 1982 Convention in the Dan The texts of the 1968 Convention, of the 1971 Protocol ish, Dutch, English, French, German, Greek, Irish and and of the 1978 Convention, drawn up in the Greek Italian languages to the Governments of the Kingdom language, shall be annexed to this Convention. The of Spain and of the Portuguese Republic. texts drawn up in the Greek language shall be authen 2. The texts of the 1968 Convention, of the 1971 Pro tic under the same conditions as the other texts of the tocol, of the 1978 Convention and of the 1982 Con 1968 Convention, the 1971 Protocol and the 1978 vention, drawn up in the Portuguese and Spanish lan Convention.' guages, are set out in Annexes II, III, IV and V to this with regard to the 1989 Accession Convention, in Convention. The texts drawn up in the Portuguese Article 30 of that Convention, which reads as follows: and Spanish languages shall be authentic under the 'Article 30 same conditions as the other texts of the 1968 Con 1. The Secretary-General of the Council of the Euro vention, the 1971 Protocol, the 1978 Convention and pean Communities shall transmit a certified copy of the 1982 Convention.' the 1968 Convention, of the 1971 Protocol, of the 1978
Zu Urkund dessen haben die unterzeichneten Bevollmachtigten ihre Unterschrift unter dieses Ubereinkommen gesetzt.
En foi de quoi les plenipotentiaires soussignes ont appose leur signature en bas de la pre- sente convention.
In fede di che i plenipotenziari sottoscritti hanno apposto le loro firme in calce alia presente convenzione.
Ten blijke waarvan de onderscheiden gevolmachtigden hun handtekening onder dit Verdrag hebben gesteld.
Geschehen zu Briissel am siebenundzwanzigsten September neunzehnhundertachtundsech- zig.
Fait a Bruxelles, le vingt-sept septembre mil neuf cent soixante-huit.
Fatto a Bruxelles, addi ventisette settembre millenovecentosessantotto.
Gedaan te Brussel, op zevenentwintig September negentienhonderdachtenzestig.
Pour Sa Majeste le roi des Beiges Voor Zijne Majesteit de Koning der Belgen Pierre HARM EL
Fur den Prasidenten der Bundesrepublik Deutschland Willy BRANDT
Pour le president de la Republique franchise Michel DEBRE
Per il presidente della Repubblica italiana Giuseppe MEDICI
Pour son Altesse Royale le grand-due de Luxembourg Pierre GREGOIRE
Voor Hare Majesteit de Koningin der Nederlanden J. M. A. H. LUNS (!)
(') The 1978, 1982 and 1989 Accession Conventions were signed by the respective Plenipotentiaries of the Member states. The signature of the Plenipotentiary of the Kingdom of Denmark to the 1989 Accession Convention is accompanied by the following text: 'Subject to the right to table a territorial reservation concerning the Faroes and Greenland in con nection with ratification, but with the possibility of subsequently extending the Convention to cover the Faroes and Greenland.' 28. 7. 90 Official Journal of the European Communities No. C 189/21
PROTOCOL (')
The High Contracting Parties have agreed upon the fol Unless the State in which service is to take place lowing provisions, which shall be annexed to the Con objects by declaration to the Secretary-General of the vention: Council of the European Communities, such docu ments may also be sent by the appropriate public offi cers of the State in which the document has been drawn Article I up directly to the appropriate public officers of the State in which the addressee is to be found. In this case Any person domiciled in Luxembourg who is sued in a the officer of the State of origin shall send a copy of the document to the officer of the State applied to who is court of another Contracting State pursuant to Article 5 competent to forward it to the addressee. The docu (1) may refuse to submit to the jurisdiction of that ment shall be forwarded in the manner specified by the court. If the defendant does not enter an appearance law of the State applied to. The forwarding shall be the court shall declare of its own motion that it has no recorded by a certificate sent directly to the officer of jurisdiction. the State of origin.
An agreement conferring jurisdiction, within the mean ing of Article 17, shall be valid with respect to a person domiciled in Luxembourg only if that person has Article V expressly and specifically so agreed.
The jurisdiction specified in Articles 6 (2) and 10 in Article II actions on a warranty or guarantee or in any other third party proceedings may not be resorted to in the Federal Without prejudice to any more favourable provisions Republic of Germany. In that State, any person domi of national laws, persons domiciled in a Contracting ciled in another Contracting State may be sued in the State who are being prosecuted in the criminal courts courts in pursuance of Articles 68, 72, 73 and 74 of the of another Contracting State of which they are not code of civil procedure (Zivilprozefiordnung) concern nationals for an offence which was not intentionally ing third-party notices. committed may be defended by persons qualified to do so, even if they do not appear in person. Judgments given in the other Contracting States by vir tue of point 2 of Article 6 or Article 10 shall be recog However, the court seised of the matter may order nized and enforced in the Federal Republic of Ger appearance in person; in the case of failure to appear, a many in accordance with Title III. Any effects which judgment given in the civil action without the person judgments given in that State may have on third parties concerned having had the opportunity to arrange for by application of Articles 68, 72, 73 and 74 of the code his defence need not be recognized or enforced in the of civil procedure (Zivilprozefiordnung) shall also be other Contracting States. recognized in the other Contracting States.
Article III Article Va (2) In proceedings for the issue of an order for enforce ment, no charge, duty or fee calculated by reference to the value of the matter in issue may be levied in the In matters relating to maintenance, the expression State in which enforcement is sought. 'court' includes the Danish administrative authorities.
Article IV Article Vb^) Judicial and extrajudicial documents drawn up in one Contracting State which have to be served on persons In proceedings involving a dispute between the master in another Contracting State shall be transmitted in and a member of the crew of a sea-going ship regis- accordance with the procedures laid down in the con ventions and agreements concluded between the Con tracting States. (2) Article added by Article 29 of the 1978 Accession Con vention (3) Article added by Article 29 of the 1978 Accession Con (') Text as amended by the 1978 Accession Convention, the vention, amended by Article 9 of the 1982 Accession 1982 Accession Convention and the 1989 Accession Con Convention and by Article 23 of the 1989 Accession Con vention. vention. No. C 189/22 Official Journal of the European Communities 28. 7. 90 tered in Denmark, in Greece, in Ireland or in Portugal, Article VdQ) concerning remuneration or other conditions of service, a court in a Contracting State shall establish whether Without prejudice to the jurisdiction of the European the diplomatic or consular officer responsible for the Patent Office under the Convention on the grant of ship has been notified of the dispute. It shall stay the European patents, signed at Munich on 5 October proceedings so long as he has not been notified. It shall 1973, the courts of each Contracting State shall have of its own motion decline jurisdiction if the officer, exclusive jurisdiction, regardless of domicile, in pro having been duly notified, has exercised the powers ceedings concerned with the registration or validity of accorded to him in the matter by a consular conven any European patent granted for that State which is not tion, or in the absence of such a convention has, within a Community patent by virtue of the provisions of the time allowed, raised any objection to the exercise of Article 86 of the Convention for the European patent such jurisdiction. for the common market, signed at Luxembourg on 15 December 1975. Article VcQ) Article VI Articles 52 and 53 of this Convention shall, when applied by Article 69 (5) of the Convention for the The Contracting States shall communicate to the Secre European patent for the common market, signed at tary-General of the Council of the European Commu Luxembourg on 15 December 1975, to the provisions nities the text of any provisions of their laws which relating to 'residence' in the English text of that Con amend either those articles of their laws mentioned in vention, operate as if 'residence' in that text were the the Convention or the lists of courts specified in Sec same as 'domicile' in Articles 52 and 53. tion 2 of Title III of the Convention.
(') Article added by Article 29 of the 1978 Accession Con (2) Article added by Article 29 of the 1978 Accession Con vention. vention.
Zu Urkund dessen haben die unterzeichneten Bevollmachtigten ihre Unterschrift unter dieses Protokoll gesetzt.
En foi de quoi les plenipotentiaires soussignes ont appose leur signature au bas du present protocole.
In fede di che i plenipotenziari sottoscritti hanno apposto le loro firme in calce al presente protocollo.
Ten blijke waarvan de onderscheiden gevolmachtigden hun handtekening onder dit Protocol hebben gesteld.
Geschehen zu Briissel am siebenundzwanzigsten September neunzehnhundertachtundsech- zig.
Fait a Bruxelles, le vingt-sept septembre mil neuf cent soixante-huit.
Fatto a Bruxelles, addi ventisette settembre millenovecentosessantotto.
Gedaan te Brussel, op zevenentwintig September negentienhonderd achtenzestig.
Pour Sa Majeste le roi des Beiges Voor Zijne Majesteit de Koning der Belgen Pierre HARMEL
Fur den Prasidenten der Bundesrepublik Deutschland Willy BRANDT 28. 7. 90 Official Journal of the European Communities No. C 189/23
Pour le president de la Republique francaise Michel DEBRE Per il presidente della Repubblica italiana Giuseppe MEDICI Pour Son Altesse Royale le grand-due de Luxembourg Pierre GREGOIRE Voor Hare Majesteit de Koningin der Nederlanden J. M. A. H. LUNS No. C 189/24 Official Journal of the European Communities 28.7.90
JOINT DECLARATION
The Governments of the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands,
On signing the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters,
Desiring to ensure that the Convention is applied as effectively as possible,
Anxious to prevent differences of interpretation of the Convention from impairing its unify ing effect,
Recognizing that claims and disclaimers of jurisdiction may arise in the application of the Convention,
Declare themselves ready: 1. to study these questions and in particular to examine the possibility of conferring juris diction in certain matters on the Court of Justice of the European Communities and, if necessary, to negotiate an agreement to this effect; 2. to arrange meetings at regular intervals between their representatives.
Zu Urkund dessen haben die unterzeichneten Bevollmachtigten ihre Unterschrift unter diese Gemeinsame Erklarung gesetzt.
En foi de quoi les plenipotentiaries ont appose leur signature au bas de la presente declara tion commune.
In fede di che i plenipotenziari sottoscritti hanno apposto le loro firme in calce alia presente dichiarazione comune.
Ten blijke waarvan de onderscheiden gevolmachtigden hun handtekening onder deze Gemeenschappelijke Verklaring hebben gesteld.
Geschehen zu Briissel am siebenundzwanzigsten September neunzehnhundertachtundsech- zig.
Fait a Bruxelles, le vingt-sept septembre mil neuf cent soixante-huit.
Fatto a Bruxelles, addi ventisette settembre millenovecentosessantotto.
Gedaan te Brussel, op zevenontwintig September negentienhonderd achtenzestig.
Pierre HARMEL Willy BRANDT Michel DEBRE Giuseppe MEDICI Pierre GREGOIRE J. M. A. H. LUNS 28. 7. 90 Official Journal of the European Communities No.C 189/25
PROTOCOL
on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (')
(90/C 189/03)
THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EURO PEAN ECONOMIC COMMUNITY,
Having regard to the Declaration annexed to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Brussels on 27 September 1968,
Have decided to conclude a Protocol conferring jurisdiction on the Court of Justice of the European Communities to interpret that Convention, and to this end have designated as their Plenipotentiaries:
HIS MAJESTY THE KING OF THE BELGIANS: Mr Alfons VRANCKX, Minister of Justice;
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY: Mr Gerhard JAHN, Federal Minister of Justice;
THE PRESIDENT OF THE FRENCH REPUBLIC: Mr Rene PLEVEN, Keeper of the Seals, Minister of Justice;
THE PRESIDENT OF THE ITALIAN REPUBLIC: Mr Erminio PENNACCHINI, Under Secretary of State in the Ministry of Justice;
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG: Mr Eugene SCHAUS, Minister of Justice, Deputy Prime Minister;
HER MAJESTY THE QUEEN OF THE NETHERLANDS: Mr C. H. F. POLAK, Minister of Justice;
WHO, meeting within the Council, having exchanged their Full Powers, found in good and due form,
(') Text as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Den mark, Ireland and the United Kingdom of Great Britain and Northern Ireland — hereafter referred to as the '1978 Accession Convention' — by the Convention of 25 October 1982 on the accession of the Hellenic Republic — hereafter referred to as the '1982 Accession Convention', and by the Con vention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic — hereafter referred to as the '1989 Accession Convention'. No. C 189/26 Official Journal of the European Communities 28. 7. 90
HAVE AGREED AS FOLLOWS: — in France: la Cour de Cassation and le Conseil d'Etat, Article 1 — in Ireland: the Supreme Court, — in Italy: la Corte Suprema di Cassazione, The Court of Justice of the European Communities shall have jurisdiction to give rulings on the interpreta — in Luxembourg: la Cour superieure de Justice tion of the Convention on jurisdiction and the enforce when sitting as Cour de Cassation, ment of judgments in civil and commercial matters and — in the Netherlands: de Hoge Raad, of the Protocol annexed to that Convention, signed at Brussels on 27 September 1968, and also on the inter — in Portugal: o Supremo Tribunal de Justica pretation of the present Protocol. and o Supremo Tribunal Administrative, — in the United Kingdom: the House of Lords The Court of Justice of the European Communities and courts to which application has been made shall also have jurisdiction to give rulings on the inter under the second paragraph of Article 37 or pretation of the Convention on the accession of the under Article 41 of the Convention (4); Kingdom of Denmark, Ireland and the United King dom of Great Britain and Northern Ireland to the Con vention of 27 September 1968 and to this Protocol ('). 2. the courts of the Contracting States when they are sitting in an appellate capacity;
The Court of Justice of the European Communities 3. in the cases provided for in Article 37 of the Con shall also have jurisdiction to give rulings on the inter vention, the courts referred to in that Article. pretation of the Convention on the accession of the Hellenic Republic to the Convention of 27 September 1968 and to this Protocol, as adjusted by the 1978 Con vention (2). Article 3
1. Where a question of interpretation of the Conven The Court of Justice of the European Communities tion or of one of the other instruments referred to in shall also have jurisdiction to give rulings on the inter Article 1 is raised in a case pending before one of the pretation of the Convention on the accession of the courts listed in point 1 of Article 2, that court shall, if it Kingdom of Spain and the Portuguese Republic to the considers that a decision on the question is necessary Convention of 27 September 1968 and to this Protocol, to enable it to give judgment, request the Court of Jus as adjusted by the 1978 Convention and the 1982 Con tice to give a ruling thereon. vention (3). 2. Where such a question is raised before any court referred to in point 2 or 3 of Article 2, that court may, Article 2 under the conditions laid down in paragraph 1, request the Court of Justice to give a ruling thereon. The following courts may request the Court of Justice to give preliminary rulings on questions of interpreta tion: Article 4
1. The competent authority of a Contracting State — in Belgium: la Cour de Cassation — het Hof may request the Court of Justice to give a ruling on a van Cassatie and le Conseil d'Etat — de Raad question of interpretation of the Convention or of one van State, of the other instruments referred to in Article 1 if judg ments given by courts of that State conflict with the — in Denmark: hojesteret, interpretation given either by the Court of Justice or in — in the Federal Republic of Germany: die ober- a judgment of one of the courts of another Contracting sten Gerichtshofe des Bundes, State referred to in point 1 or 2 of Article 2. The provi sions of this paragraph shall apply only to judgments — in Greece: the avebxata 8iKacrrf|pia, which have become res judicata.
— in Spain: el Tribunal Supremo, 2. The interpretation given by the Court of Justice in response to such a request shall not affect the judg (') Second paragraph added by Article 30 of the 1978 Acces ments which gave rise to the request for interpretation. sion Convention. (2) Third paragraph added by Article 10 of the 1982 Acces sion Convention. (4) Point 1 as amended by Article 31 of the 1978 Accession (3) Fourth paragraph added by Article 24 of the 1989 Acces Convention, by Article 11 of the 1982 Accession Conven sion Convention. tion and by Article 25 of the 1989 Accession Convention. 28. 7. 90 Official Journal of the European Communities No. C 189/27
3. The Procurators-General of the Courts of Cassation ber 1968 on jurisdiction and the enforcement of judg of the Contracting States, or any other authority desig ments in civil and commercial matters. nated by a Contracting State, shall be entitled to request the Court of Justice for a ruling on interpreta tion in accordance with paragraph 1. Article 9
4. The Registrar of the Court of Justice shall give no The Contracting States recognize that any State which tice of the request to the Contracting States, to the becomes a member of the European Economic Com Commission and to the Council of the European Com munity, and to which Article 63 of the Convention on munities; they shall then be entitled within two months jurisdiction and the enforcement of judgments in civil of the notification to submit statements of case or writ and commercial matters applies, must accept the provi ten observations to the Court. sions of this Protocol, subject to such adjustments as may be required. 5. No fees shall be levied or any costs or expenses awarded in respect of the proceedings provided for in Article 10 {*) this Article. The Secretary-General of the Council of the European Communities shall notify the signatory States of: Article 5 (a) the deposit of each instrument of ratification;
1. Except where this Protocol otherwise provides, the (b) the date of entry into force of this Protocol; provisions of the Treaty establishing the European (c) any designation received pursuant to Article 4 (3); Economic Community and those of the Protocol on the Statute of the Court of Justice annexed thereto, which (d) ...(5). are applicable when the Court is requested to give a preliminary ruling, shall also apply to any proceedings for the interpretation of the Convention and the other Article 11 instruments referred to in Article 1. The Contracting States shall communicate to the Secre tary-General of the Council of the European Commu 2. The Rules of Procedure of the Court of Justice nities the texts of any provisions of their laws which shall, if necessary, be adjusted and supplemented in necessitate an amendment to the list of courts in point accordance with Article 188 of the Treaty establishing 1 of Article 2. the European Economic Community.
Article 12 Article 6 This Protocol is concluded for an unlimited period.
Article 13
2 Article 7( ) Any Contracting State may request the revision of this Protocol. In this event, a revision conference shall be This Protocol shall be ratified by the signatory States. convened by the President of the Council of the Euro The instruments of ratification shall be deposited with pean Communities. the Secretary-General of the Council of the European Communities. Article 14 (*)
Article 8 Q) This Protocol, drawn up in a single original in the Dutch, French, German and Italian languages, all four texts being equally authentic, shall be deposited in the This Protocol shall enter into force on the first day of archives of the Secretariat of the Council of the Euro the third month following the deposit of the instrument pean Communities. The Secretary-General shall trans of ratification by the last signatory State to take this mit a certified copy to the Government of each signa step; provided that it shall at the earliest enter into tory State (7). force at the same time as the Convention of 27 Septem-
(4) See footnote 1 on page 19. (') Article 26 of the 1989 Accession Convention provides for (5) Article 27 of the 1989 Accession Convention provides for the deletion of Article 6 as amended by Article 32 of the the deletion of (d) as amended by Article 33 of the 1978 1978 Accession Convention. Accession Convention. (2) See footnote 6 on page 18. (6) See footnote 3 on page 19. (3) See footnote 7 on page 18. (7) See footnote 4 on page 19. No. C 189/28 Official Journal of the European Communities 28. 7. 90
Zu Urkund dessen haben die unterzeichneten Bevollmachtigten ihre Unterschrift unter dieses Protokoll gesetzt.
En foi de quoi les plenipotentiaires soussignes ont appose leur signature au bas du present protocole.
In fede di che i plenipotenziari sottoscritti hanno apposto le loro firme in calce al presente protocollo.
Ten blijke waarvan de onderscheiden gevolmachtigden hun handtekening onder dit Protocol hebben gesteld.
Geschehen zu Luxembourg am dritten Juni neunzehnhunderteinundsiebzig.
Fait a Luxembourg, le trois juin mil neuf cent soixante et onze.
Fatto a Lussemburgo, addi tre giugno millenovencentosettantuno.
Gedaan te Luxemburg, de derde juni negentienhonderd eenenzeventig.
Pour Sa Majeste le roi des Beiges Voor Zijne Majesteit de Koning der Belgen Alfons VRANCKX
Fur den Prasidenten der Bundesrepublik Deutschland Gerhard JAHN
Pour le president de la Republique francaise Rene PLEVEN
Per il presidente delle Repubblica italiana Erminio PENNACCHINI
Pour Son Altesse Royale le grand-due de Luxembourg Eugene SCHAUS
Voor Hare Majesteit de Koningin der Nederlanden C. H. F. POLAK ^790 Gfticial journal of the European Gommunities ^oDG189B^9
^^^Tro^GLARAT^r^
The Governments of the Kingdom of Belgium, the Federal Republic of Germany, the French republic, the Italian Republic, the Grand lOuchy of Luxembourg and the Kingdom of the Netherlands,
Gn signing the Rrotocol on the interpretation by the Gourt of iustice of the Gonventionof^7 September 1968 on jurisdiction and the enforcement ofjudgments in civil and commercial matters,
desiring to ensure that the provisions of that Rrotocol are applied as effectively and as unP formly as possible,
declare themselves ready to organize, in cooperation v^ith the Gourt of justice, an exchange of information on the judgments given by the courts referred to in An^icle^^l^of that Rroto col in application of tlieGonvention and the Rrotocolof^7September 1968.
ZuUrkunddessenhabendieunterzeichnetenBevollmachtigtenihreUnterschriftunterdiese GemeinsameFrklarunggesetzt.
Fnfoidequoilesplenipotentiairessoussignesont appose leur signature au has de la pre^ sente declaration communeD
Infededicheiplenipotenziarisottoscrittihannoappostolelorotirmeincalceallapresente dicbiarazionecomune.
Ten blijke vBaarvan de onderscheiden gevolmachtigden hun handtekening onder deze GemeenschappelijkeVerklaringhebbengesteld.
Geschehenzu Luxemburg am dritteniunineunzehnhunderteinundsiebzig. FaitaLu^embourg,letroisjuin mil neuf cent soi^anteetonze. FattoaLussemburgo,additregiugnomillenovecentosettantuno^ Gedaante Luxemburg, dederdejuninegentienhonderdeenen^eventing.
RourSa^ajesteleroides Beiges VoorZijnelviajesteitdeKoningderBelgen AlfonsVRA^GK^
FurdenPrasidentenderBundesrepublikL^eutschland GerhardlA^^
Pour le president de la Republiquefrancaise ReneRLFVF^
RerilpresidentedellaRepubblicaitaliana FrminioRF^^AGG^i^l
Four Son AltesseRoyalelegrand^ducde Luxembourg FugeneSGPlAUS
Voor^are^vtajesteitdeKoninginder^ederlanden G^.F.FGLAK No. CI 89/30 Official Journal of the European Communities 28. 7. 90
JOINT DECLARATION
of 9 October 1978
(90/C 189/04) THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN ECONOMIC COMMUNITY, MEETING WITHIN THE COUNCIL,
Desiring to ensure that in the spirit of the Convention of 27 September 1968 uniformity of jurisdiction should also be achieved as widely as possible in maritime matters,
Considering that the International Convention relating to the arrest of sea-going ships, signed at Brussels on 10 May 1952, contains provisions relating to such jurisdiction,
Considering that all of the Member States are not parties to the said Convention,
Express the wish that Member States which are coastal States and have not already become parties to the Convention of 10 May 1952 should do so as soon as possible.
Udferdiget i Luxembourg, den niende oktober nitten hundrede og otteoghalvfjerds.
Geschehen zu Luxemburg am neunten Oktober neunzehnhundertachtundsiebzig.
Done at Luxembourg on the ninth day of October in the year one thousand nine hundred and seventy-eight.
Fait a Luxembourg, le neuf octobre mil neuf cent soixante-dix-huit.
Arna dheanamh i Lucsamburg, an naou la de Dheireadh Fomhair sa bhliain mile naoi gcead seachto a hocht.
Fatto a Lussemburgo, addi nove ottobre millenovecentosettantotto.
Gedaan te Luxemburg, de negende oktober negentienhonderd achtenzeventig.
Pour Sa Majeste le roi des Beiges Voor Zijne Majesteit de Koning der Belgen Renaat VAN ELSLANDE
For Hendes Majestaet Danmarks Dronning Nathalie LIND
Fur den Prasidenten der Bundesrepublik Deutschland Dr Hans-Jochen VOGEL
Pour le president de la Republique franchise Alain PEYREFITTE
Thar ceann Uachtaran na hEireann Gerard COLLINS
Per il presidente della Repubblica italiana Paolo BONIFACIO ^.7.^0 Official journal of the European communities No.C^l^B^l
Pour Son Altesse Royale le grand-due de Luxembourg Robert KR1EPS VoorHareMajesteitdeKoninginderNederlanden ProfMrLdeRUlTER For Her Majesty the Queen of the United Kingdom of Great Britain and Northern Ireland The Right Honourable the Lord EL^WN^NES^H. NoCl^Bo52 Official iournal of the European Communities 2^.7.^0
^^NT DECLARATION
CG^ce^t^t^e^tt^c^ooot^heCo^ Po^tu^ue^eRe^ot^tothe^^H^B^e^Co^ve^o^
^OBCl^BO^
Upon signature of the Convention on the accession of the kingdom of Spain and the Portuguese Republic to thel^^Brussels Conventions done at Donostia— San Sebastian on2olviayl^
TA8^^^8^TATlV^O^T^^0^OV8^Ntvt^^T^O^TA^^^^8^^5T^^^ ^U^O^A^CO^mU^ITt^,^^TiN^WtT^t^TA8 COUNCIL
DESIROUS thatmn particular v^ithavie^v to the completion of the internal mar^applica^ tion of the Brussels Convention and of thel^l Protocol should be rapidly extended to the entire Community^
^ELCOIvIINGthe conclusion on ^September 1^^ of the Lugano Convention v^hich extends the principles of theBrusselsConventionto those States becoming parties to the Lugano Conventions designed principally to govern relations between the member States of the European Economic Community ^EEC^ and those of the European EreeTradeAssocia tion^EETA^ith regard to the legal protection of persons established in any of those States and to the simplificationof formalities for the reciprocal recognition and enforcement of ^udgments^
CONSIDERING that the Brussels Convention has as its legal basis Article 220 of the Treaty ofRome and is interpreted by the Court of^usticeofthe European Communities^
IvIINDEUL that theLuganoConventiondoesnot affect theapplicationoftbe Brussels Conventionasregardsrelationsbet^veen tVlember States of theEuropean Economic Com munity^since such relations must be governed by the Brussels Conventions
NOTING that the Lugano Convention is to enter into force after t^vo States^ of whicb one is amemberofthe EuropeanCommunitiesandtheotheramemberofthe European Eree Trade Associations have deposited their instruments of ratifications
DECLARE T^EIvISELVES READVtotaloe every appropriate measure ^vithaviev^ to ensuring that national procedures for the ratification of the Convention on the accession of the Kingdomof Spainandthe Rortuguese Republic tothe BrusselsConvention^signed today^are completed as soon as possible andmf possibles by^lDecember 1^2 at the latest. 28. 7. 90 Official Journal of the European Communities No.C 189/33
En fe de lo cual, los abajo firmantes suscriben la presente Declaration comun.
Til bekrasftelse heraf har undertegnede underskrevet denne erklasring.
Zu Urkund dessen haben die Unterzeichneten diese Erklarung unterschrieben.
Ie 7tiaT(baT| xcov avcoxepa), ot K&TCO6I UTi^ypavj/av TT)V rcapouaa Sf)taDOT|.
In witness whereof the undersigned have signed this declaration.
En foi de quoi, les soussignes ont signe la presente declaration.
Da fhianii sin, chuir na daoine thios-sinithe a lamh leis an Dearbhu seo.
In fede di che, i sottoscritti hanno firmato la presente dichiarazione.
Ten blijke waarvan de ondergetekenden hun handtekening onder deze verklaring hebben gesteld.
Em fe do que, os abaixo-assinados apuseram a sua assinatura no final da presente declara- cao comum.
Hecho en Donostia — San Sebastian, a veintiseis de mayo de mil novecientos ochenta y nueve.
Udfaerdiget i Donostia — San Sebastian, den seksogtyvende maj nitten hundrede og niog- firs.
Geschehen zu Donostia — San Sebastian am sechsundzwanzigsten Mai neunzehnhundert- neunundachtzig.
Eyive CTCT) Donostia — San Sebastian, axiQ eiKoai e|i Matou %ikia ewtaKoata, oy86vxa ewea.
Done at Donostia — San Sebastian on the twenty-sixth day of May in the year one thousand nine hundred and eighty-nine.
Fait a Donostia — San Sebastian, le vingt-six mai mil neuf cent quatre-vingt-neuf.
Arna dheanamh in Donostia — San Sebastian, an seu la is fiche de Bhealtaine sa bhliain mile naoi gcead ochto a naoi.
Fatto a Donostia — San Sebastian, addi ventisei maggio millenovecentottantanove.
Gedaan te Donostia — San Sebastian, de zesentwintigste mei negentienhonderd negenent- achtig.
Feito em Donostia — San Sebastian, em vinte e seis de Maio de mil novecentos e oitenta e nove. No. C 189/34 Official Journal of the European Communities 28. 7. 90
Pour le gouvernement du royaume de Belgique voor de Regering van het Koninkrijk Belgie Jacques de LENTDECKER For regeringen for Kongeriget Danmark (') Jette Birgitte SELS0 Fur die Regierung der Bundesrepublik Deutschland Dr Georg TREFFTZ Dr Klaus KINKEL Tia TT|V KuPepvr|ar| THC; EX.>»T|ViKf|c; ArpoKpaxtac; riawn IKO0AAPIKH Por el Gobierno del Reino de Espana Enrique MUGICA HERZOG Pour le gouvernement de la Republique franchise Pierre ARPAILLANGE Thar ceann Rialtas na hEireann Patrick WALSHE Per il governo della Repubblica italiana Giuliano VASSALLI Pour le gouvernement du grand-duche de Luxembourg Ronald MAYER Voor de Regering van het Koninkrijk der Nederlanden Frits KORTHALS ALTES J. SPOORMAKER Pelo Governo da Republica Portuguesa Fernando NOGUEIRA For the Government of the United Kingdom of Great Britain and Northern Ireland John PATTEN
(') With a reservation concerning the Faroes and Greenland. See footnote 1 on page 20. 28. 7. 90 Official Journal of the European Communities No. C 189/35
REPORT ON THE CONVENTION on the accession of the Kingdom of Spain and the Portuguese Republic to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice with the adjustments made to them by the Convention on the accession of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britian and Northern Ireland and the adjustments made to them by the Convention on the accession of the Hellenic Republic
(90/C 189/06)
(Signed at Donostia/San Sebastian on 26 May 1989)
by
Mr Martinhode ALMEIDA CRUZ Judge at First Instance, Legal Counsellor at the Permanent Representation of Portugal to the European Communities
Mr Manuel DESANTES REAL Professor, Law Faculty, University of Alicante
and Mr Paul JENARD Honorary Director of Administration at the Belgian Ministry of Foreign Affairs
In addition to the draft Convention and the other instruments drawn up by the government experts, the draft explanatory report was submitted to the Governments of the Member States of the European Communities prior to the Conference of representatives of the Gov ernments of the Member States held in San Sebastian on 26 May 1989.
This report takes account of the comments made by certain Governments. It takes the form of an authorized commentary on the Convention of 26 May 1989. No. C 189/36 Official Journal of the European Communities 28.7.90
LIST OF CONTENTS Page
Chapter I — General considerations 38 1. Introductory remarks 38 2. Previous Conventions concluded under Article 220 of the Treaty of Rome 38 1. Brussels Convention of 27 September 1968 38 2. Luxembourg Convention of 9 October 1978 39 3. Luxembourg Convention of 25 October 1982 39 3. Lugano Convention of 16 September 1988 39
Chapter II — Accession of Spain and Portugal to the 1968 Convention 41
Chapter III — Introductory remarks 42
Chapter IV — Technical adjustments made to the Brussels Convention by the Convention on the accession of Spain and Portugal 42 1. Exorbitant jurisdictional bases (Article 3) 42 2. Spanish and Portuguese courts having jurisdiction to apply Title III of the Convention .... 43 3. Relationship to existing Conventions and Community acts 43 (a) Bilateral Conventions [Articles 55 and 58 (Articles 18 and 20)] 43 (b) Multilateral Conventions [Article 57 (Article 19)] 43 (c) Community acts [Article 58 (3) (Article 19)] 44 4. Special consideration regarding Spain: Actions on a warranty or guarantee 44 Chapter V — Amendments incorporated from the Lugano Convention 44 1. Article 5 (1) (Article 4) (Contracts of employment) 44 2. Article 6 (4) (Article 5) (Combination of actions in rem and in personam) 45 3. Article 16 (1) (Article 6) (Tenancies) 46 4. Article 17 (Article 7) (Agreements conferring jurisdiction) 47 (a) Form of agreements conferring jurisdiction 47 (b) Agreements conferring jurisdiction in matters relating to contracts of employment [Article 17 (5) (Article 7)] 47 5. Article 21 (Article 8) (Lis pendens) 48 6. Article 31 and 50 (Articles 9 and 14) (Order for enforcement) 48 7. Article 52, third paragraph 48 8. Article 54 (Article 16) (Transitional provisions) 49 9. Article 54a (Article 17) 49
Chapter VI — Final provisions 49 1. Territorial application 49 2. Effect of deletion of Article 60 50 3. Entry into force 51
Chapter VII — Interpretation by the Court of Justice 51 Adjustments to the Protocol of 3 June 1971 51
Chapter VIII — Conclusions 52 28. 7. 90 Official Journal of the European Communities No. C 189/37
Annex I Table of publication of instruments 53
Annex II List of participants 54
Annex III List of non-European territories for whose international relations the United King dom is responsible 56
NB References are to the Articles of the Brussels Convention and are followed in brackets by the relevant Articles of the Accession Convention No. C 189/38 Official Journal of the European Communities 28. 7. 90
CHAPTER I
GENERAL CONSIDERATIONS
1. Introductory remarks was concluded between the six original Member States of the European Communities, the Six being 1. By Article 220 of the Treaty establishing the Euro Belgium, the Federal Republic of Germany, pean Economic Community, the Member States France, Italy, Luxembourg and the Netherlands ('). agreed to enter into negotiations with each other, The Convention entered into force between the six so far as necessary, 'with a view to securing for the Member States concerned on 1 February 1973. benefit of their nationals the simplification of for malities governing the reciprocal recognition and The Brussels Convention is supplemented by a enforcement of judgments of courts or tribunals Protocol signed in Luxembourg on 3 June 1971 and of arbitration awards'. conferring on the Court of Justice of the European Communities jurisdiction to interpret the Conven From this provision has developed, in this specific tion (2). This Protocol entered into force on 1 Sep field, a genuine European legal area which, as will tember 1975. be seen, is destined to extend well beyond the rela tions between the Member States of the European Communities. 4. The Brussels Convention is based on a number of fundamental principles (3): 2. Three Conventions have been concluded under Article 220 of the Treaty of Rome prior to the Con vention on the accession of Spain and Portugal: — it applies only to matters relating to property,
1. the Brussels Convention of 27 September 1968 — it lays down rules of direct jurisdiction, i.e. on jurisdiction and the enforcement of judg applying from the beginning of proceedings, ments in civil and commercial matters, supple mented by the Protocol of 3 June 1971 on its — the defendant's domicile, and not his national interpretation by the Court of Justice; ity, is considered to be the basic rule for deter 2. the Luxembourg Convention of 9 October 1978 mining the jurisdiction of the courts, on the accession of Denmark, of Ireland and of the United Kingdom of Great Britain and — no derogation from this rule is allowed, unless Northern Ireland to the Brussels Convention expressly provided for in the Convention, and to the 1971 Protocol; — the defendant's rights must have been res 3. the Luxembourg Convention of 25 October pected in the State of origin, 1982 on the accession of Greece to the Brussels Convention as adjusted by the 1978 Conven tion and the 1971 Protocol. — the grounds for refusing recognition and enforcement are limited in the interests of In addition, negotiations with the Member States ensuring the greatest possible freedom of of the European Free Trade Association resulted in movement of judgments in the Community, the Lugano Convention of 16 September 1988, based very largely on the 1968 Brussels Convention — the exequatur procedure is unified and simpli as adjusted by the Accession Conventions of 1978 fied, and 1982. Before entering on a detailed commentary on the — any State which becomes a member of the Convention on the accession of Spain and Portu European Economic Community is required to gal, a brief description of the previous Conventions accept the Convention as a basis for the nego is helpful. tiations necessary to ensure the implementa tion of Article 220 of the Treaty of Rome; how-
2. Previous Conventions concluded under (') The Convention was published in OJ No L 299, 31. 12. Article 220 of the Treaty of Rome 1972. It was accompanied by an explanatory report drawn up by Mr P. Jenard, published in OJ No C 59, 5. 3. 1979, hereinafter referred to as the Jenard Report. 1. Brussels Convention of 27 September 1968 (2) The Protocol was published in OJ No L 204, 2. 8. 1975. For its scope, see Jenard Report, pp. 66 to 70. (3) For a fuller account of these principles, see Jenard-Moller 3. This Convention on jurisdiction and the enforce Report, paragraph 13. Details of that report are given in ment of judgments in civil and commercial matters footnote 5 on page 39. 28. 7. 90 Official Journal of the European Communities No. C 189/39
ever, the necessary adjustments may be the 3. Lugano Convention of 16 September 1988 subject of special conventions (Article 63).
2. Luxembourg Convention of 9 October 1978 9. The Member States of the European Free Trade 4 5. After Denmark, Ireland and the United Kingdom Association ( ) were desirous of concluding with of Great Britain and Northern Ireland joined the the Member States of the European Communities a European Communities (Europe of Nine), a new Convention based on the principles of the 1968 Convention was concluded on the accession of Brussels Convention. those three States to the 1968 Convention and to the 1971 Protocol ('). Preparatory proceedings began in 1985 and were completed relatively quickly. They resulted in a 6. That Convention, which is in conformity with Convention on jurisdiction and the enforcement of Article 220 of the Treaty of Rome and Article 63 of judgments in civil and commercial matters, which the Brussels Convention, entered into force for was opened for signature in Lugano on 16 Septem Denmark on 1 November 1986, for the United ber 1988, at the close of a diplomatic conference Kingdom on 1 January 1987 and for Ireland on held at the invitation of the Swiss Government (5). 1 June 1988.
7. The Convention of 9 October 1978 is thus currently in force between nine Member States of the Com munities. While it introduced into the Brussels Convention a number of quite significant amend 10. Without entering into great detail, it is important ments, it left unchanged the basic principles of that here to note that the Lugano Convention is also Convention, as summarized in paragraph 4 above. based on the fundamental principles of the Brus sels Convention (6) and that many of its Articles are identical to those of that Convention.
3. Luxembourg Convention of 25 October 1982 Where amendments have been made to the Brus 8. After Greece became a member of the Communi sels Convention, these can often be regarded as ties (Europe of Ten), the Luxembourg Convention improvements. It was therefore natural that they of 25 October 1982 (2) was concluded on its acces should be taken into account in the preparatory sion to the 1968 Brussels Convention and to the negotiations, within the Communities, for the 1971 Protocol, with the adjustments made to them accession of Spain and Portugal to the Brussels by the 1978 Convention. Convention (see Chapter V).
That Convention entered into force between Greece and the other States parties to the 1978 The relationship between the Brussels and Lugano Convention on 1 April 1989, with the exception of Conventions is dealt with in a specific Article the United Kingdom, for which it entered into (Article 54b) (7) of the Lugano Convention. force on 1 October 1989.
The amendments made by the Luxembourg Con (4) Present EFTA membership: Austria, Finland, Iceland, vention to the Brussels Convention and to the 1971 Norway, Sweden and Switzerland. 3 H Published in OJ No L 319, 25. 11. 1988. The Convention Protocol are technical only ( ). is accompanied by an explanatory report drawn up jointly by Mr P. Jenard and Mr G. Moller, hereinafter referred to as the Jenard-Moller Report. (') This Convention, signed in Luxembourg on 9 Ocotber (6) See paragraph 4 above. 1978, was published in OJ No L 304, 30. 10. 1978. It was (7) Article 54 b states: the subject of a report drawn up by Prof. P. Schlosser, published in OJ No C 59, 5. 3. 1979, hereinafter referred '1. This Convention shall not prejudice the application to as the Schlosser Report. by the Member States of the European Communities of the Convention on jurisdiction and the enforcement of (-) Published in OJ No L 388, 31. 12. 1982. It is accompanied judgments in civil and commercial matters, signed at by an explanatory report drawn up by Professors D. Evri- Brussels on 27 September 1968 and of the Protocol on genis and K. D. Kerameus, published in OJ No C 298, interpretation of that Convention by the Court of Justice, 24. 11. 1986, hereinafter referred to as the Evrigenis-Kera signed at Luxembourg on 3 June 1971, as amended by the meus Report. 3 Conventions of Accession to the said Convention and the ( ) For the convenience of practitioners, an unofficial conso said Protocol by the States acceding to the European lidated version of the three Conventions (1968, 1978 and Communities, all of these Conventions and the Protocol 1982) was drawn up by the Council General Secretariat being hereinafter referred to as the 'Brussels Convention'. and published in OJ No C 97, 11. 4. 1983. A table giving the dates of publication of the various instruments is 2. However, this Convention shall in any event be provided in Annex I to this report. applied: No. C 189/40 Official Journal of the European Communities 28. 7. 90
The Jenard-Moller Report (paragraphs 14 to 17) such State, e.g. Italy. The plaintiffs nationality has the following to say on the subject: and domicile are immaterial;
'As shown above, although the structure of the two (b) a judgment has been delivered in one Euro Conventions is identical and they contain a great pean Community Member State, e.g. France, number of comparable provisions, they remain and must be recognized or enforced in another separate Conventions. such State, e.g. Italy.
Application of the two Conventions is governed by The Brussels Convention also applies where a per Article 54b. The first point to note is that this son domiciled outside the territory of a European Article primarily concerns the courts of member Community Member State and outside the territory countries of the European Communities, these of any other State party to the Lugano Convention, being the only courts which may be required to e.g. in the United States, is summoned to appear deliver judgments pursuant to either Convention. before a court in a European Community Member Courts in EFTA Member States are not bound by State (Article 4 of the Brussels Convention). the Brussels Convention since the EFTA States are not parties to that Convention. In each of these three instances, the Court of Jus tice of the European Communities has jurisdiction under the 1971 Protocol to rule on problems which However, Article 54b is relevant for the courts of may arise with regard to the interpretation of the EFTA countries since it was felt advantageous that Brussels Convention. Article 54b should, for reasons of clarity, contain details relating to lis pendens, related actions, recognition and enforcement of judgments. However, under paragraph 2, the court of a Euro pean Community Member State must apply the Lugano Convention where: The philosophy of Article 54b is as follows:
1. a defendant is domiciled in the territory of a According to paragraph 1, the Brussels Convention State which is party to the Lugano Convention continues to apply in relations between Member and an EFTA member or is deemed to be so States of the European Communities. domiciled under Articles 8 or 13 of the Con vention. For instance, if a person domiciled in Norway is summoned before a French court, This applies in particular where: jurisdiction will be vested in that court only in the cases for which the Lugano Convention provides. In particular the rules of exorbitant (a) a person, of whatever nationality, domiciled in jurisdiction provided for in Article 4 of the one Community State, e.g. France, is sum Brussels Convention may not be relied on as moned to appear before a court in another against that person;
(cont'd) 2. the courts of an EFTA Member State possess (a) in matters of jurisdiction, where the defendant is dom iciled in the territory of a Contracting State which is exclusive jurisdiction (Article 16) or jurisdic not a member of the European Communities, or where tion by prorogation (Article 17). The courts of Articles 16 or 17 of this Convention confer a jurisdic Member States of the European Communities tion on the courts of such a Contracting State; may not, for instance, be seised of a dispute (b)in relation to a lis pendens or to related actions as prov relating to real rights in immovable property ided for in Articles 21 and 22, when proceedings are situated in the territory of a State party to the instituted in a Contracting State which is not a mem ber of the European Communities and in a Contract Lugano Convention and an EFTA Member ing State which is a member of the European Commu State, notwithstanding Article 16 (1) of the nities; Brussels Convention, which does not apply (c)in matters of recognition and enforcement, where unless the immovable property is situated in either the State of origin or the State addressed is not a the territory of a State party to the 1968 Con member of the European Communities. vention; 3. In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the ground of jurisdiction on which the judgment has been based dif fers from that resulting from this Convention and recogni 3. recognition or enforcement of a judgment tion or enforcement is sought against a party who is dom delivered in a State party to the Lugano Con iciled in a Contracting State which is not a member of the vention and an EFTA Member State is being European Communities, unless the judgment may other wise be recognized or enforced under any rule of law in sought in a Community Member State (para the State addressed.' graph 2 (c)). 28. 7. 90 Official Journal of the European Communities No. C 189/41
Paragraph 2 also provides that the Lugano These grounds for refusal are additional to Convention applies where a judgment those provided for in Article 28, and arise delivered in a Community Member State is to essentially from a guarantee sought by the be enforced in an EFTA Member State party to EFTA Member States. The cases involved can the Lugano Convention. be expected to arise relatively seldom, since with regard to rules of jurisdiction the Conven This does not resolve potential conflicts tions are extremely similar. The possibility between the two Conventions, but it does nevertheless remains. The case would arise in define their respective scope. Obviously, if a the event of a judgment on a contract of judgment has been delivered in a State party to employment delivered by a court in a Com the Lugano Convention and an EFTA Member munity Member State which had erroneously State and is to be enforced either in a Com based its jurisdiction with regard to a person munity Member State or in an EFTA Member domiciled in an EFTA Member State either on State, the Brussels Convention does not apply; Article 4 or Article 5 (1) of the Brussels Con vention, i.e. in a manner inconsistent with Article 5 (1) of the Lugano Convention, which 4. Article 54b also contains provisions relating to includes a specific provision on contracts of lis pendens (Article 21) and related actions employment, or on an agreement conferring (Article 22). Under Article 54b (2) (b) a court in jurisdiction which predated the origin of the a Community Member State must apply these dispute (Article 17). Articles of the Lugano Convention if a court in an EFTA Member State is seised of the same dispute or a related application. However, in the interests of freedom of move Apart from the greater clarity which they bring, ment of judgments, the judgment will be recog these provisions serve a double purpose: to nized and enforced provided that this can be remove all uncertainty, and to ensure that done in accordance with the rules of common judgments delivered in the different States law of the State addressed, in particular its concerned do not conflict; common law rules on the jurisdiction of for eign courts; 5. Article 54b (3) lays down that a court in an EFTA Member State may refuse recognition or enforcement of a judgment delivered by a court in a Community Member State if the For convenience, we have used the term grounds on which the latter court has based its 'EFTA Member States' in the above examples. jurisdiction are not provided for in the Lugano Obviously, the same arrangements would Convention and if recognition or enforcement apply to States which are not members of is being sought against a party who is domi either the EEC of EFTA but accede to the ciled in any EFTA Contracting State. Lugano Convention (see Article 62 (1) (b)).'
CHAPTER II
ACCESSION OF SPAIN AND PORTUGAL TO THE 1968 CONVENTION
11. Article 3(2) of the Act concerning the conditions into negotiations with the present Member States of accession of the Kingdom of Spain and the in order to make the necessary adjustments there Portuguese Republic to the European Communi to' (')- ties states that 'the new Member States undertake The only Convention in force that is based on to accede to the conventions provided for in Article Article 220 is the Brussels Convention of 27 Sep 220 of the EEC Treaty ... and also to the protocols tember 1968 as adjusted by the 1978 and 1982 Con on the interpretation of those conventions by the ventions. Court of Justice, signed by the Member States of the Community as originally constituted or as enlarged and to this end they undertake to enter (') See OJ No L 302, 15. 11. 1985. No. C 189/42 Official Journal of the European Communities 28. 7. 90
12. At the request of the two Governments concerned, 13. This report deals with: and ad hoc working party was set up and held its first meeting in Brussels on 20 February 1989 under the chairmanship of Mr A. Boixareu Carrera, First the technical adjustments to the Brussels Con Secretary at the Permanent Representation of vention (Chapter IV), Spain to the European Communities.
As rapporteurs, the Permanent Representatives the adjustments which take account of the Committee appointed Mr Martinho de Almeida Lugano Convention (Chapter V). Cruz, Judge at First Instance, Legal Counsellor at the Permanent Representation of Portugal to the European Communities. Mr Manuel Desantes In addition, particular attention is given to the Real, Professor in the Law Faculty of the Univers final provisions of the Accession Convention, ity of Alicante and Mr Paul Jenard, Honorary especially as regards its entry into force and territo Director of Administration at the Belgian Ministry rial application (Chapter VI). of Foreign Affairs.
The ad hoc working party met three times between 20 February and 10 April 1989 (')• The amendments to the 1971 Protocol on the inter pretation of the Convention by the Court of Jus tice, although only technical, are dealt with in a (') For the list of participants, see Annex II. separate chapter (Chapter VII).
CHAPTER III
INTRODUCTORY REMARKS
In the interests of clarity, we have referred in the report to the corresponding Articles of the Brussels Convention. However, Articles 1 and 2 of Accession Convention have no equiva lent in the Brussels Convention.
Article 1 containing the undertaking by Spain and Portugal to accede to the Brussels Con vention as adjusted by the subsequent Conventions gives rise to no particular comment.
Article 2 includes the provision that the formal adjustments to those Conventions are set out in Annex I to the 1989 Convention, of which it forms an integral part. This provision is designed, in the interests of legal security, to align the various language versions on those of the Lugano Convention, as a number of minor errors in the earlier Conventions were discov ered during these negotiations. As Annex I forms an integral part of the Convention, it is the adjusted texts that will be authentic.
CHAPTER IV
TECHNICAL ADJUSTMENTS MADE TO THE BRUSSELS CONVENTION BY THE CONVENTION ON THE ACCESSION OF SPAIN AND PORTUGAL
14. The adjustments concern only: 1. Exorbitant jurisdictional bases [Article 3 (Article 3)] — exorbitant jurisdictional bases [Article 3 (Article 3)], 15. Portugal: — the list of Spanish and Portuguese courts with Articles 65 (1) (c), 65 (2) and 65a (c) of the Code of jurisdiction to apply Title III regarding the Civil Procedure and Article 11 of the Code of recognition and enforcement of judgments, Labour Procedure. — bilateral Conventions concerned by the Acces This provision, inserted in Article 3 of the Acces sion Convention. sion Convention, is included in the Lugano Con- 28. 7. 90 Official Journal of the European Communities No. C 189/43
vention; on the basis of information provided by With regard to Portugal, it should be pointed out the Portuguese delegation, the Jenard-Moller that the term 'appeal on a point of law' used in Report comments as follows (paragraph 31): Articles 37 and 41 relates to the restriction of the grounds of appeal to an incorrect application of 'Article 65 of Chapter II of the Code of Civil Pro the law as opposed to an incorrect assessment of cedure provides that a foreign national may be the facts. sued in a Portuguese court where:
— (paragraph 1 (c)) the plaintiff is Portuguese and, if the situation were reversed, he could be 3. Relationship to existing Conventions and Community sued in the courts of the State of which the acts defendant is a national,
— (paragraph 2) under Portuguese law, the court a) Bilateral Conventions [Article 55 (Article 18)] with jurisdiction would be that of the defend ant's domicile, if the latter is a foreigner who has been resident in Portugal for more than six 18. The list of bilateral Conventions on the recognition months or who is fortuitously on Portuguese and the enforcement of judgments (of general territory provided that, in the latter case, the scope) covers the Conventions concluded by Spain obligation which is the subject of the dispute with France, Italy and the Federal Republic of was entered into in Portugal. Germany. Portugal has concluded no such Con ventions with the Member States of the European Article 65a (c) of the Code of Civil Procedure con Communities. fers exclusive jurisdiction on Portuguese courts for actions relating to employment relationships if any For the scope of Article 55 of the Brussels Conven of the parties is of Portuguese nationality. tion the reader is referred to page 59 of the Jenard Report. Article 11 of the Code of Labour Procedure gives jurisdiction to Portuguese labour courts for dis putes concerning a Portuguese worker where the contract was concluded in Portugal.' Article 58 (Article 20): Franco-Swiss Convention
19. During the negotiations on the Accession Conven 16. Spain: tion it was considered advisable to specify the scope of Article 58 of the 1968 Convention with Articles 21 and 25 of the Spanish Ley Organica del regard to the application of the Franco-Swiss Con Poder Judicial of 1 July 1985 governing the interna vention on jurisdiction and enforcement of judg tional jurisdiction of Spanish civil and social courts ments in civil matters, signed at Paris on 15 June are directly based on the Brussels Convention, 1869. although drafted unilaterally. There are thus no such exorbitant bases in Spain. The attention accorded to this Convention is due not to its age but to the fact that it will cease to In any event, the particulars for insertion in Article have effect once the Lugano Convention enters 3 of the Convention are not exhaustive since into force between France and the Swiss Confeder neither is the list contained in that Article, which ation. The aim here was to prevent any conflict merely cites examples, thus if there were any exor between the Brussels Convention and the Lugano bitant jurisdiction, it, too, would be inapplicable. Convention.
(b) Multilateral Conventions [Article 57 (Article 2. Spanish and Portuguese courts having jurisdiction to 19)] apply Title III of the Convention 20. This matter is covered by Article 57. Article 57 (2) lays down a much more detailed system for settling 17. The additions are essentially technical in nature. conflicts of convention between the Brussels Con vention and Conventions concluded on a parti The formal adjustments to Articles 32 to 41 (Arti cular matter. This provision was adopted in the cles 10 to 13) relate exclusively to the courts having 1978 Accession Convention (see Schlosser Report, jurisdiction and the types of appeal that may be paragraphs 238 to 246). In the interests of clarity it lodged against their judgments. was thought preferable that it should be repro- No. C 189/44 Official Journal of the European Communities 28. 7. 90
duced as such in Article 57 (2), just as it was 1482 (') of the Civil Code, regarding eviction. included in the Lugano Convention, although with Generally speaking, it is the latter rule which is some differences from that Convention in order to applicable in cases of non-voluntary third party ensure greater freedom of movement of judgments proceedings; in the negotiations between the Mem in the Community (see Jenard-Mdller Report, para ber States of the European Communities and those graphs 81 to 83). of the European Free Trade Association, it was therefore judged advisable to include it in Article V (c) Community acts [Article 57 (3) (Article 19)] of Protocol 1. Article 1482 is referred to, albeit indi rectly, in Articles 638 (gift), 1145 (joint and several 21. This provision, which appears in the 1978 Conven obligations), 1529 (assignment of claims), 1540 tion, has been incorporated as such. (exchange), 1553 (tenancy) 1681 (obligations of It should be noted that no Community act (Regula partners), 1830 (surety), 1831 (co-surety), etc. of the tion or Directive) has so far contained any provi Civil Code. sion relating to jurisdiction and the recognition and enforcement of judgments. The problem of Community acts in relations When the problem arose during the negotiations between the Member States of the European Com for Spanish and Portuguese accession to the Brus munities, i.e. in the Convention on the accession of sels Convention, the Spanish delegation concluded Spain and Portugal, undoubtedly differs considera that jurisprudence in this area could soon develop bly from that which arises in relations with third beyond the limited case of Article 1482 of the Civil countries. It is thus normal that on this point the Code. It therefore seemed wiser to omit any refer Accession Convention should depart from the ence to Spain in Article V of Protocol 1, with there Lugano Convention (see Protocol 3 and relevant to be no difference in interpretation between the Declaration, and Jenard-Mdller Report, paragraphs Lugano Convention and the Brussels Convention. 120 to 128). (') Article 1482 of the Spanish Civil Code: 4. Special consideration regarding Spain: Actions on a 'The purchaser against whom an action for eviction is warranty or guarantee brought shall request, within the period specified by the Code of Civil Procedure for replying to the action, that it be served on the vendor(s) as soon as possible. 22. Third party intervention in proceedings is not gov Service shall be in the manner specified in the said Code erned by explicit rules in the Spanish legal system for service on defendants. and the want of proper procedures is the source of The time limit for reply by the purchaser shall be sus procedural uncertainty. This legal hiatus has been pended until the expiry of the period notified to the ven severely criticized in the works of legal experts, dors) for appearing and replying to the action, which shall correspond to the periods laid down for all defen who have recommended that it be remedied in the dants by the Code of Civil Procedure and shall run from near future. However, this has not prevented the date of the service referred to in the first paragraph of acceptance of third party proceedings in some this Article. fields of jurisprudence or in civil laws governing If those cited in eviction proceedings fail to appear in the manner and time specified, the period allowed for reply certain specific cases, e.g. Article 124 (3) of Law ing to the action shall be extended in respect of the pur No 11 of 20 March 1986 on patents and Article chaser.'
CHAPTER V
AMENDMENTS INCORPORATED FROM THE LUGANO CONVENTION
1. Article 5 (1) (Article 4): Contract of employment to ensure that the interpretation of it was that given on a number of occasions by the Court 23. (a) In negotiations for the Lugano Convention, of Justice (see in particular the judgment of the the EFTA Member States requested that the Court of 26 May 1982 in Ivenel v. Schwab, question of the contract of employment Case 133/81, ECR 1982, p. 1891, and that should, where Article 5 and Article 17 were given on 15 January 1987 in Shenavai v. concerned (on the latter Article, see 27 below), Kreischer, Case 266/85, ECR 1987, pp. 239 to be covered by independent provisions in order 257). Under the new Article 5 (1) of the Lugano 28. 7. 90 Official Journal of the European Communities No. C 189/45
Convention on the question of the contract of tained in the last part of Article 5(1) of the employment, the place of performance of the Lugano Convention is to operate in favour of obligation in question is taken to mean that the employee only. In order to avoid all ambi where the employee habitually carries out his guity, the text states that the employee may work; if he does not habitually carry out his bring proceedings before the courts for the work in any one country, this place is the place place where the business (l) which engaged of business through which he was engaged (see him was situated either at the time of engage Jenard-Moller Report, paragraphs 35 to 44). ment or at the time when proceedings are brought. This stipulation was found necessary following discussions held within the working party on the degree to which the Six Conduc (b) Following signature of the Lugano Conven tions v. Humbert ruling should be taken into tion, the working party took cognizance of the account. judgment given by the Court of Justice on 15 February 1989 (Six Constructions v. Hum (d) It follows from the same concern to protect the bert, Case 32/88). In the case, the French Cour employee that the expression 'in any one coun de Cassation (Court of Cassation) had try' also includes cases where the work has requested a ruling, inter alia, on the following been carried out, in whole or in part, outside question: 'what is the obligation to be taken Community territory. into account for the purposes of the applica tion of Article 5 (1) of the Brussels Convention (e) The effect of this provision is that, in any dis of 27 September 1968 where the court is faced pute between an employer and an employee, with claims based on obligations arising under where the employee does not habitually carry a contract of employment binding an employee out his work in any one country (whether or resident in France to a company having its not within the Community): registered office in Belgium which sent him to several countries outside Community terri 1. the employer can only bring an action tory?' before the courts indicated in general terms in Article 2;
2. the employee can bring proceedings before Although in the operative part of this judgment the courts indicated in general terms in the Court of Justice restricts itself to pointing Article 2 or those in the last part of out that 'Article 5(1) of the Convention must Article 5 (1) (the courts within the jurisdic be interpreted as meaning that, as regards con tion of which the business which engaged tracts of employment, the obligation to be the employee is or was situated). taken into consideration is that which charac terizes the contract, in particular the obligation to carry out the duties agreed', it stresses obiter dictum the need to ensure adequate protection for the contracting party in the weaker position 2. Article 6 (4) (Article 5): from the social point of view — i.e. the Combinations of actions in rem and in personam employee — concluding that 'the particular characteristics of contracts of employment do not justify an interpretation under which 24. This provision is taken directly from the text of the Article 5 (1) of the Convention would allow the Lugano Convention. The Jenard-Moller Report place where the business which engaged the (paragraphs 46 and 47) gives the following com employee is situated to be taken into consider mentary on it: ation in cases where it would be difficult or impossible to say in which State the work had 'When a person has a mortgage on immovable pro been carried out'. perty the owner of that property is quite often also personally liable for the secured debt. Therefore it has in some States been made possible to combine an action concerning the personal liability of the The solution adopted attempts to improve on owner with an action for the enforced sale of the that adopted by the Lugano Convention with out departing from it too greatly, while follow The term 'place of business', as in the Lugano Conven ing the guidelines laid down by the Court of tion, is to be understood in the broad sense; in particular, Justice on the protection of the weaker party in it covers any entity such as a branch or agency with no the contractual relationship (note the same legal personality (see Jenard-Moller Report, paragraph concern for protection in Article 17(5) at 27 43). On the concept of 'place of business' see also the judgments of the Court of Justice of 22 November 1978 below). It was therefore agreed that, where the (Somafer v. Ferngas, Case 33/78, ECR 1978, pp. 2183- employee does not habitually carry out his 2195) and 19 December 1987 (Schotte v. Rothschild, Case work in any one country, the assumption con- 218/86, OJ No C 2, 6. 1. 1988, p. 3). No. C 189/46 Official Journal of the European Communities 28. 7. 90
immovable property. This presupposes of course Reports, of the drafters of the Brussels Con that the court for the place where the immovable vention, the working party decided to insert a property is situated also has jurisdiction as to new subparagraph (b) in Article 16(1), contain actions concerning the personal liability of the ing a special provision on short-term tenancies. owner. This insertion was necessary in view of the fact that, in giving a ruling on the provision as It was agreed that it was practical that an action drafted in 1968, the Court had been obliged to concerning the personal liability of the owner of an interpret literally Article 16(1) of the Conven immovable property could be combined with an tion and to decide that it applied to all pro action for the enforced sale of the immovable pro ceedings concerning the payment of rent, perty in those States where such a combination of including cases of short-term rental of holiday actions was possible. Therefore it was deemed accommodation (judgment of 15 January 1985, appropriate to include in the Convention a provi Rosier v. Rottwinkel, Case 241/83, ECR 1985, sion according to which a person domiciled in a pp. 99 to 129). Contracting State also may be sued in matters relating to a contract, if the action may be com bined with an action against the same defendant in matters relating to rights in rem in immovable pro perty, in the court of the Contracting State in which (b) Because of the interpretation given by the the property is situated. Court to Article 16(1), the Member States of EFTA and a number of Member States of the Communities expressed interest in including in To illustrate, let us assume that a person domiciled the Lugano Convention a provision relating to in France is the owner of an immovable property tenancies of immovable property for limited situated in Norway. This person has raised a loan periods. An agreement covering this was which is secured through a mortgage on his immov reached by which Article 16(1) would be sup able property in Norway. In the eventuality of the plemented by the addition of a new subpara loan not being repaid when due, if the creditor graph (b) (see Jenard-Moller Report, paragraph wants to bring an action for the enforced sale of 49 et seq.). the immovable property, the Norwegian court has exclusive jurisdiction under Article 16 (1). This court has however, under the present provision, moreover jurisdiction as to an action against the owner of the property concerning his personal lia (c) The solution adopted by the Accession Con bility for the debt, if the creditor wants to combine vention differs from that contained in the the latter action with an action for the enforced Lugano Convention. In the first place, it is sale of the property. more restrictive: under subparagraph (b), the plaintiff may also bring an action before the It goes without saying that this jurisdictional basis courts of the Contracting State in the territory cannot exist by itself. It must necessarily be supple of which the defendant has his domicile where mented by legal criteria which determine on which the proceedings concern tenancies of immova conditions such a combination is possible. Thus ble property concluded for temporary private the provisions already existing in or which in the use for a maximum period of six consecutive future may be introduced into the legal systems of months — this refers in particular to contracts the Contracting States with reference to the com agreed for holiday purposes — if (and only if) bining of the abovementioned actions remain unaf the tenant and the landlord are natural persons fected by the Lugano Convention. domiciled in the same Contracting State. Legal persons are excluded on the grounds that they are generally concerned with commercial trans It goes without saying however that the combina actions. tion of the two actions which this paragraph deals with have to be instituted by the "same claimant". The "same claimant" includes of course also a per son to whom another person has transferred his rights or his successor.' Secondly, this provision is not accompanied by any reservation option, since the introduction of a reservation was considered hardly con ceivable in connection with a Convention based on Article 220 of the Treaty of Rome. It 3. Article 16(1) (Article 6): should be noted that Article lb in Protocol 1 to Tenancies the Lugano Convention allows for the possibil ity of entering a reservation by which any Con tracting State may declare that it will not recog 25. (a) Taking into consideration the Lugano Conven nize or enforce a decision on tenancies of tion and the intention, according to the Jenard immovable property if the property concerned (page 35) and Schlosser (paragraph 164) is situated on the territory of the State entering 28. 7. 90 Official Journal of the European Communities No. C 189/47
the reservation, even where the tenancy is of (b) Agreements conferring jurisdiction in matters the type referred to in Article 16(1) (b) and relating to contracts of employment where the jurisdiction of the court of the State [Article 17 (5) (Article 7)] of origin is based on the domicile of the defendant (see Jenard-Moller Report, para graph 53). 27. (a) This paragraph relates to agreements confer ring jurisdiction in matters relating to contracts (d) As already pointed out in the Jenard-Mdller of employment. Report (paragraph 54), 'Article 16 (1) applies only if the property is situated in the territory of a Contracting State. The text is sufficiently There is no one provision of the 1968 Brussels explicit on this point. If the property is situated Convention, as modified by the 1978 and 1982 in the territory of a third State, the other provi Conventions, which expressly deals with this sions of the Convention apply, e.g. Article 2 if subject, although it has given rise to a judg the defendant is domiciled in the territory of a ment of the Court of Justice (')• Contracting State, and Article 4 if he is domi ciled in the territory of a third State, etc.' (b) During negotiations for the Lugano Conven tion, the representatives of the Member States of EFTA proposed the addition of a new para graph to Article 17 to the effect that agree ments conferring jurisdiction in the matter of 4. Article 17 (Article 7): an individual contract of employment should Agreements conferring jurisdiction only have legal force if they are entered into after the dispute has arisen. The addition was accepted in view of the fact that the idea (a) Form of agreements conferring jurisdiction underlying this provision was the protection of the employee who from the socioeconomic point of view is regarded as the weaker in the contractual relationship (see Jenard-Moller 26. Paragraph 1 of Article 17 is once again directly Report, paragraph 60). from the text of the Lugano Convention. (c) It was natural that this amendment made by The Jenard-Moller Report deals with this point at the Lugano Convention to the Brussels Con some length (see paragraphs 55 to 59); in summary, vention should be the subject of particularly it says that, under the new arrangements adopted, careful study during the negotiations on the agreements conferring jurisdiction should be: Accession Convention, having regard also to the judgment given on 15 February 1989 by the — in writing or evidenced in writing; this is in Court of Justice, in which the Court, too, in its accordance with the terms of the 1968 Conven grounds for judgment gave particular attention tion, to the protection of the weaker party, i.e. the employee (Case 32/88, Six Constructions v. P. — or in a form which accords with practices Humbert, OJ No C 62, 11. 3. 1979, p. 7; see which the parties have established between also 23 above). themselves; on this, see the judgment of the Court of Justice of 14 December 1976, Case (d) The solution adopted by the Accession Con 25/76, Segoura v. Bonakdarian, ECR 1976, pp. vention differs from that contained in the 1851 to 1863, Lugano Convention in its emphasis on protec tion of the employee. — or, in international trade or commerce, in a form which accords with a usage of which the In other words, the solution incorporated in parties are or ought to have been aware (this is the Lugano Convention was considered too in accordance with the amendments made by radical: this would be the case in particular the 1978 Convention to the 1968 Convention), where the agreement conferring jurisdiction, but in addition this usage in such trade or com while entered into prior to the dispute arising, merce must be widely known to, and regularly could in the employee's own view be favoura observed by parties to contracts of the type ble to him. For this reason the new paragraph 5 involved in the particular trade or commerce in Article 17 of the Convention provides that concerned. the agreement conferring jurisdiction may only take effect where it is entered into after the dis- These conditions supplementary to the text of the 1978 Convention were taken from Article 9 (2) of (') See judgment of the Court of Justice of 13 November the 1980 Vienna Convention on International Con 1979 in Case 25/79, Sanicentral v. Collin, ECR 1979, pp. tracts for the Sale of Goods. 3423 to 3431. No. C 189/48 Official Journal of the European Communities 28. 7. 90
pute has arisen — as in the Lugano Conven jurisdiction in favour of that court and may stay its tion — or if 'the employee invokes it to seise proceedings if the jurisdiction of the other court is courts other than those for the defendant's contested. domicile or those specified in Article 5 (1)', which moderates the radicality of the Lugano The representatives of the EFTA Member States Convention. thought this solution was too radical. They observed that an action often had to be (e) It follows from this provision that: brought in order to comply with a time limit or stop 1. The employee, in any dispute with the further time from running, and that opinions dif employer, may refer the dispute to the fered as to whether a time limit had been complied agreed courts having jurisdiction, even if with where an action had been brought before a the agreement conferring jurisdiction was court lacking jurisdiction internationally. entered into prior to the dispute arising. Thus, in their view, if an action was brought before a judge who would have had jurisdiction, but was 2. Under the terms of the new provision this not the first to be seised, that judge would of his option is only open to the employee so own motion have to decline jurisdiction in favour that he may himself refer the dispute to the of the court first seised. However, that court might court to which prorogation is made; he perhaps decide that it did not have jurisdiction. In could not make use of it in exceptional cir that case, both actions would have been dismissed cumstances, e.g. if he were summoned to with the result that the time limits might have run appear before the courts of his domicile. out and the action be time barred. The latter possibility is denied him for the sake of protecting legal security and avoid These remarks have been taken into consideration. ing delaying action. Article 21 has been amended so that the court other 3. Finally, if the clause conferring jurisdiction than the court first seised will of its own motion attributes it to a court in the State of the stay its proceedings until the jurisdiction of the defendant's domicile, the court to which other court has been established. prorogation has specially been made A court other than the one first seised will not would have jurisdiction if the Convention decline jurisdiction in favour of the court first is invoked by the employee. This should be seised until the jurisdiction of the latter has been the case, given that the deciding factor is established (see Schlosser Report, paragraph 176). the employee's choice and that where pro tection of employees is concerned the legal The Court of Justice has ruled that the concepts systems of different Contracting States are employed in Article 21 to define a case of lis pen not all in agreement. dens should be considered to be 'independent' (point 11 of the grounds for judgment) and that the (f) In this new construction, the choice between term lis pendens to which Article 21 refers covers a the courts having jurisdiction (courts of the case where a party brings an action before a court State of the defendant's domicile, place of per in a Contracting State for a declaration that an formance of the contract of employment or to international sales contract is inoperative or for the which prorogation has been made) thus lies termination thereof whilst an action by the other entirely at the discretion of the employee in his party to secure performance of the said contract is capacity as plaintiff. pending before a court in another Contracting State' (judgment of 8 December 1987 in Case 144/ 86, Gubisch v. Palumbo, OJ No C 8, 13. 1. 1988, p. 3). 5. Article 21 (Article 8): Lis pendens 6. Articles 31 and 50 (Articles 9 and 14) 28. Article 21 of the Brussels Convention has been brought into line with Article 21 of the Lugano 29. The expression 'when the order for its enforcement Convention, which lays down that in cases of lis has been issued', used in the Brussels Convention pendens a court other than the one first seised, has been replaced by 'when it has been declared instead of declining jurisdiction of its own motion, enforceable', as in the Lugano Convention. This must stay its proceedings of its own motion until amendment to the Brussels Convention was the jurisdiction of the first court seised has been adopted in order to bring the two Conventions into established. The Jenard-Moller Report (para line, particularly since the two expressions may be graph 64) contains the following commentary on considered virtually equivalent (see also the Jen this: ard-Moller Report, paragraph 68 and 69, on this). 'Only this Article has been amended in Section 8. 7. Article 52, third paragraph (Article 15) Article 21 of the Brussels Convention provides that in cases of lis pendens, any court other than the 30. The third paragraph of Article 52 has been deleted, court first seised must of its own motion decline in line with the Lugano Convention, as pointed out 28. 7. 90 Official Journal of the European Communities No. C 189/49
in the Jenard-MQller Report. This course was taken tue of Article 1 (2) of the 1982 Accession Con in view particularly of developments since the 1968 vention. For reasons of clarity, the 1989 Acces Convention was drafted as regards the domicile of sion Convention defines what is to be under married women (for further explanation, see the stood by 'date of entry into force'. It was Jenard-Moller Report, paragraph 53). agreed that the provision shall only apply to agreements in writing dating from before 1 January 1987 where the United Kingdom is concerned and 1 June 1988 where Ireland is 5. Article 54 (Article 16): concerned. Transitional provisions
31. 1. Only technical adjustments have been made to 9. Article 54a (Article 17) the first and second paragraphs of this Article. No modification to the substance has been made (see Jenard Report, pp. 57 and 58, 32. This Article corresponds to Article 36 of the 1978 Schlosser Report, paragraphs 228 to 235 and Accession Convention and Article 54a of the Jenard-Moller Report, paragraph 74). Lugano Convention (see Schlosser Report, para graphs 121 et seq., and Jenard-Moller Report, para 2. During negotiations for the 1989 Accession graph 75). Convention it was considered appropriate to reproduce the third paragraph of Article 54 of It should be noted that despite the wording of the Lugano Convention and specify the scope Article 54a of the Lugano Convention this provi of the words 'this Convention'. This paragraph sion does not apply to Greece, as Greece has rati corresponds to Article 35 of the 1978 Accession fied the Brussels Convention of 10 May 1952 on Convention (see Schlosser Report, paragraphs the Arrest of Seagoing Ships. That Convention will 121 et seq) and was declared to extend to the also shortly be ratified by Denmark, and the accession of the the Hellenic Republic by vir- approval procedure is under way in Ireland.
CHAPTER VI
FINAL PROVISIONS
I. Territorial application collectivities (Saint Pierre and Miquelon, May- otte).
33. This question was specifically dealt with by Article (b) Denmark: The 1978 Convention does not 60 of the 1968 Convention, as amended by Article apply: 27 of the 1978 Accession Convention. Those two Articles are rescinded by Article 21 of this Acces — either to the Faroe Islands, in the absence sion Convention. of any declaration to that effect. Under those Articles 60 and 27, the 1968 and 1978 Conventions applied to the European territory of — or to Greenland, as Denmark declared the Contracting States, but special provisions upon deposit of its instrument of ratifica applied to France, Denmark, the Netherlands and tion that the Convention did not extend to the United Kingdom. Greenland.
In accordance with those provisions and with state (c) The Netherlands: Since 1 January 1986, the ments made, where in existence, the situation at the Kingdom of the Netherlands consists of three date of signature of the Convention on the acces countries, namely: the Netherlands, the Neth sion of Spain and Portugal is as follows: erlands Antilles (the islands of Bonaire, Cura cao, Sint Maarten (Netherlands part of the (a) France: The 1968 Convention as modified by island), Sint Eustatius and Saba) and Aruba. the 1978 Convention applies to all territories which are an integral part of the French It should be noted here that the 1968 Conven Republic (see Articles 71 et seq. of the Consti tion stated that the Government of the Nether tution), including therefore the French Over lands could declare the Convention applicable seas Departments (Guadeloupe, Martinique, to Surinam and the Netherlands Antilles and Guiana, Reunion), the Overseas Territories that, in the absence of such declaration with (Polynesia, New Caledonia, Southern and Ant respect to the Netherlands Antilles, proceed arctic Territories) and the individual territorial ings taking place in the European territory of No. C 189/50 Official Journal of the European Communities 28. 7. 90
the Kingdom as a result of an appeal in cassa The Convention could therefore be applicable to tion against the judgment of a court in the non-European territories. Netherlands Antilles should be deemed to be proceedings in the latter court. 36. (a) Territories affected In the 1978 Convention, the same provision France: See 33 above. was adopted except in relation to Surinam (Article 27 of the Accession Convention). The Spain: The Convention applies to the whole Convention therefore does not extend to Suri territory of the Kingdom of Spain. nam. Upon deposit of the Netherlands' instru ment of ratification regarding the 1978 Con Portugal: The Convention applies to the whole vention, it was expressly stated that the instru territory of the Portuguese Republic. An exten ment included the declaration that the ratifica sion of the Convention to Macao and East tion applied only to the Kingdom in Europe. Timor would be possible.
As regards other territories which since 1986 Denmark: Denmark could extend the applica have been part of the Kingdom of the Nether tion of the Convention to the Faroe Islands lands, it should be noted that the Convention's and Greenland. application was extended to Aruba on 30 June 1986. The Netherlands: The Netherlands could extend application to the Netherlands Antilles, (d) United Kingdom.The 1978 Convention (Article extension to Aruba having already been 27) providing that the Convention applied only accomplished. to the European territory of the Contracting States specified that it did not apply to Euro United Kingdom: The list of non-European pean territories situated outside the United territories for the international relations of Kingdom for the international relations of which the United Kingdom is responsible is which the United Kingdom was responsible, in given in Annex III. the absence of a declaration to the contrary by the United Kingdom with respect to such a ter It should be noted that in the negotiations ritory (on these territories, see Schlosser leading up to the Lugano Convention, the Report, paragraph 252). No such declaration United Kingdom indicated that, of its non- has been made by the United Kingdom. European territories, Anguilla, Bermuda, the British Virgin Islands, Montserrat, the Turks and Caicos Islands and Hong Kong were ones 34. In conclusion, on the date of the opening for signa to which there might be a real prospect of the ture of the Convention on the accession of Spain Convention being extended. and Portugal, the 1968 Convention as modified by the 1978 and 1982 Conventions: 37. (b) Transitional situations
(a) applied to all territories which are an integral 1. It could happen that before entry into part of the French Republic; force of the Accession Convention with regard to one of the States concerned (e.g. (b) in the case of Denmark, did not apply to Denmark or the United Kingdom), that Greenland or the Faroe Islands; State might make declarations of extension on the basis of Article 60 of the 1978 Con (c) in the case of the Netherlands, applied only to vention. the Kingdom's territory in Europe and to Aruba; In our view, such declarations would become effective with regard to the States (d) in the case of the United Kingdom, did not which were parties to the 1978 Convention apply to European territories situated outside and would continue to apply with regard the United Kingdom for the international rela to Spain and Portugal as from the entry tions of which the United Kingdom was res into force of the Accession Convention ponsible. between those countries and the territory concerned.
2. The effect of the progressive implementa 2. Effect of deletion of Article 60 tion of the Convention on the accession of Spain and Portugal is that for a transitional period this Convention and the 1968 Con 35. The deletion of Article 60 is in agreement with the vention, as modified by the 1978 and 1982 solution adopted in the Lugano Convention which Conventions will be governing relations also includes no clause on territorial application between the Member States of the Com (see Jenard-Moller Report, paragraphs 91 to 96). munities simultaneously. To illustrate this, 28. 7. 90 Official Journal of the European Communities No. C 189/51
the following example may be taken: if application of this Convention to non- Spain and the Netherlands are the first two European territories for the international States ratifying the Convention on the relations of which it is responsible. accession of Spain and Portugal, that Con Extension of the Convention even to non- vention will govern relations between European territories for the international them, but between the Netherlands and the relations of which the United Kingdom is other States which have ratified the 1978 responsible will therefore be governed in and 1982 Conventions it will be the provi accordance with the rules of public inter sions of those two Conventions which will national law. remain applicable. 38. The situation might prove somewhat complex for a This duality is not without implications for time, but this demonstrates that there is every the territorial application of the Conven incentive to ensure that the Convention on the tions. If it is supposed that after ratifying accession of Spain and Portugal is ratified as soon the Convention on the accession of Spain as possible by all the Member States of the Com and Portugal the Netherlands wishes to munities. extend it to the Netherlands Antilles, its declaration of extension would have to be 3. Entry into force made not only on the basis of Article 60 of the 1968 Convention (') so that the exten 39. 1. Under Article 32 of the 1989 Accession Con sion will be effective with regard to the vention, it will enter into force when it has other States which are party to that Con been ratified by two signatory States one of vention, but also in conformity with the which is the Kingdom of Spain or the rules of public international law so that it Portuguese Republic. will be effective with regard to Spain and Portugal. 2. An accelerated entry into force of the Conven tion has been intentionally sought after. This intention was confirmed by the Declaration Concerning the United Kingdom, under annexed to the Convention, which establishes Article 60 (16) of the 1978 Convention, the a link between the Brussels Convention and United Kingdom may extend the Conven the completion of the internal market and tion's application 'to European territories' urges the States to adopt appropriate measures situated outside the United Kingdom for for ratification as soon as possible and, if pos the international relations of which it is sible, by 31 December 1992. responsible. The effect of Article 32 is that the Convention could enter into force between Spain and Por The 1978 Convention does not give the tugal if they were the first countries to ratify it. United Kingdom the right to extend the 3. It was understood that even in such circum- ' stances the Court of Justice would have juris (') Article 60 here means Article 60 of the 1968 Convention, diction to give a ruling on the interpretation of as modified by Article 27 of the 1978 Convention. the Accession Convention.
CHAPTER VII
LUXEMBOURG PROTOCOL OF 3 JUNE 1971
40. In general it may be said that the 1971 Protocol has The necessary technical adjustments consequent been adapted to successive Accession Conven upon the accession of Spain and Portugal were tions. Its basic structure, which falls within the made. framework of Article 177 of the Treaty of Rome, has not been altered.
The considerations contained in the Jenard Report (OJ No C59, 5.3. 1979, p. 66), Schlosser Report Articles 26 and 27 of the 1989 Accession Conven (paragraphs 255 and 256) and Evrigenis-Kerameus tion have deleted Articles 6 and 10 (d) of the Proto Report (paragraphs 91 to 99) are therefore appro col relating to the Convention's territorial applica priate for consultation purposes. tion. No. C 189/52 Official Journal of the European Communities 28. 7. 90
CHAPTER VIII
CONCLUSIONS
The situation as revealed in this report may appear the Communities represent the EFTA countries' to be fairly complex, as the specialist finds himself most important market. The Lugano Convention confronted with a number of international instru should resolve any disputes that may arise in the ments applying to a single area. course of such trade.
Without denying this complexity, one should not Since 1 October 1989 the Brussels Convention has lose sight of the fact that this is a process which been in force between 10 Member States of the involves a very great effort on the part of 18 Euro Communities. pean States for the purpose of achieving, in the specific area of jurisdiction and recognition and The following summary indicates the various enforcement of judgments in civil and commercial stages which have been reached: matters, a true European judicial area resting on common foundations. This creation has been 1. The 1968 Brussels Convention entered into brought about by successive accretions resulting force on 1 February 1973 between Belgium, the from the extension of the Communities and from Federal Republic of Germany, France, Italy, the interest shown by the EFTA countries in the Luxembourg and the Netherlands. The Proto Brussels Convention. col of 3 June 1971 entered into force between those six countries on 1 September 1975.
2. The 1968 Convention was replaced by the 1978 As a remedy, consideration should first be given to Convention in relations between those six early ratification by all the States concerned of the States and Denmark with effect from 1 Nov Convention on the accession of Spain and Portu ember 1986, between all of those and the gal, in accordance with the terms of the Declara United Kingdom with effect from 1 January tion and because of the links between the Conven 1987 and between all of those and Ireland with tion and the single market to which it draws atten effect from 1 June 1988. tion. The situation would then certainly be clearer with the Brussels Convention brought up to date, 3. The 1982 Convention on the accession of as it were, by all the Member States of the Commu Greece entered into force on 1 April 1989 nities. This apart, arrangements have been adopted between Greece and Belgium, the Federal — as we described in our discussion of the final Republic of Germany, Denmark, France, Ire provisions (Chapter VI) — to speed up the imple land, Italy, Luxembourg and the Netherlands. mentation of this Accession Convention. It has applied to the United Kingdom since 1 October 1989.
An early ratification of the Lugano Convention is 4. The 1989 Accession Convention will enter into of no less interest. At a practical level, it would force when it has been ratified by two signatory protect persons domiciled in a Member State of the States one of which is the Kingdom of Spain or Communities in that they could no longer be the Portuguese Republic. required to appear before the courts of EFTA Member States on exorbitant bases, and it would 5. The Lugano Convention of 16 September 1988 also ensure free movement of judgments. In econo will enter into force when it has been ratified mic terms, the EFTA countries are the European by two States one of which is a member of the Communities' principal customer ahead even of Communities and the other a member of the United States and Japan together; conversely, EFTA. 28. 7.90 Official Journal of the European Communities No. C 189/53
ANNEX I
Convention Declaration of Entry into force Protocol Publication in OJ territorial Notification in OJ Report application
1968 Convention L 299, 31. 12. 1972 Between the six original Federal Republic of Germany: Brussels: 27. 9. 1968 Member States ('): to Berlin 1.2. 1973 Netherlands: Kingdom in (L 299, 31. 12.1972) Europe + Aruba
1971 Protocol L 204, 2. 8. 1975 Between the Six: Federal Republic of Germany: Luxembourg: 3. 6. 1971 1.9. 1975 to Berlin (L 204, 2. 8. 1975)
1978 Convention L 304, 30. 10. 1978 Between the Six and Den Denmark: not to Greenland Luxembourg: 9. 10. 1978 (Irish special edition L 388) mark: Federal Republic of Germany: 1. 11. 1986 to Berlin (C 285, 12. 11. 1986) Between the Six + Denmark and United Kingdom: 1. 1. 1987 (C 285, 12. 11.1986) Between the Six + Denmark + United Kingdom and Ire land: 1.6. 1988 (C125, 12.5.1988)
1982 Convention L 388, 31. 12. 1982 Between the Six + Denmark Denmark: not to Greenland Luxembourg: 25. 10. 1982 + Ireland and Greece: Federal Republic of Germany: 1.4. 1989 to Berlin (C37, 14. 2. 1989) Between the Six + Denmark + Ireland + Greece and United Kingdom: 1. 10. 1989 (C249, 30. 9. 1989)
1989 Convention L285,3. 10. 1989 San Sebastian: 26. 5. 1989 (Irish special edition L 285)
Consolidated text of L 304, 30. 10. 1978 — 1968/1978 Conventions C 97, 11.4. 1983 1971 Protocol — 1968/1978/1982 Conven tions 1971 Protocol
Lugano Convention L319,25. 11.1988 Lugano: 16.9. 1988
Jenard Report C 59, 5. 3.1979 1968 Convention 1971 Protocol Schlosser Report 1978 Convention
Evrigenis-Kerameus Report C 298, 24.11.1986 1982 Convention + Greek ver sions of Jenard and Schlosser Reports
(') The Six: Belgium, Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands. No. C 189/54 Official Journal of the European Communities 28. 7. 90
ANNEX II
List of participants
CHAIRMAN Mr A. BOIXAREU CARRERA First Secretary Permanent Representation of Spain to the European Communities
BELGIUM MrG. GENOT Counsellor Ministry of Foreign Affairs Mr J. MATTHIJS Administrative Secretary Ministry of Justice
DENMARK MrH. C. ST0VLB/EK Ministry of Justice MissH. LINDEGAARD Legal Attache Permanent Representation to the European Communi ties
FEDERAL REPUBLIC OF GERMANY MrC. BOHMER Federal Ministry of Justice MrD. WELP Federal Ministry of Justice Mr B. SCHMIDT-STEINHAUSER Permanent Representation to the European Communi ties
GREECE Mrs M. TOUSSIS-SCORDAMAGLIA First Secretary, Legal Affairs Permanent Representation to the European Communi ties MrsC. SAMONI-RANTOY Ministry of Foreign Affairs MrsH. RIGA Director Ministry of Justice
SPAIN Mr J. DE MIGUAL ZARAGOZA Assistant Director Ministry of Justice MrM. DESANTES REAL Professor, Law Faculty, University of Alicante Ministry of Justice
FRANCE MrCORMAILLE DE VALBRAY Ministry of Justice Mr J. P. BERAUDO Magistrate Ministry of Justice
IRELAND MrC. 6 HUIGINN Principal Department of Justice
ITALY Consigliere di Cassazione Mr A. SAGGIO Ministry of Justice Consigliere di Cassazione MrR. FOGLIA Ministry of Justice Ministry of Industry Mrs A. DALESSANDRO 28. 7. 90 Official Journal of the European Communities No. C 189/55
LUXEMBOURG Mrs A. CLEMANG Justice Attache Ministry of Justice
NETHERLANDS HerrP. MEIJKNECHT Ministry of Justice MrG. BORCHARDT Permanent Representation to the European Communi ties
PORTUGAL MrM. DE ALMEIDA CRUZ Judge at First Instance, Legal Counsellor Permanent Representation to the European Communi ties MrL. FERNANDEZ Director Ministry of Foreign Affairs Mr A. RIBEIRO Director Ministry of Justice
UNITED KINGDOM MrD. GLADWELL Lord Chancellor's Department MrR. WHITE Lord Chancellor's Department
COMMISSION OF THE EUROPEAN COMMUNITIES Mr P. JENARD Counsellor Honorary Director of Administration, Belgian Ministry of Foreign Affairs Mr F. DANIS Administrator, DG III
GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES MrV. SCORDAMAGLIA Director DG C Internal Market MrO. PETERSEN Principal administrator DG C Internal Market MissG. MALESY Principal secretary DG C Internal Market No. C 189/56 Official Journal of the European Communities 28. 7. 90
ANNEX III
List of non-European territories for whose international relations the United Kingdom is responsible
— Caribbean and North Atlantic: Anguilla, Bermuda, Cayman Islands, Montserrat, Turks and Caicos Islands, British Virgin Islands;
— South Atlantic: British Antarctic Territory, Falkland Islands, South Georgia and the South Sand wich Islands, St Helena and dependencies (Ascension Island) (Tristan da Cunha);
— Indian Ocean: British Indian Ocean Territory;
— South Pacific: Pitcairn Island, Henderson, Ducie and Oeno;
— Hong Kong. 28. 7. 90 Official Journal of the European Communities No. C 189/57
CONVENTION
on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988
(90/C 189/07)
REPORT by Mr P. JENARD Honorary Director of Administration at the Belgian Ministry of Foreign Affairs, and Mr. G. MOLLER President of the Court of First Instance in Toijala
In addition to the draft Convention and the other instruments drawn up by the government experts, the draft explanatory report was submitted to the Governments of the Member States of the European Communities and of the European Free Trade Association before the Diplomatic Conference held in Lugano from 12 to 16 September 1988.
This report takes account of the comments made by certain Governments and of the amend ments made by the Diplomatic Conference to the drafts before it. It takes the form of a com mentary on the Convention signed in Lugano on 16 September 1988. No.C 189/58 Official Journal of the European Communities 28. 7. 90
LIST OF CONTENTS Point No Page
Chapter I — General Considerations 1-13 61 1. Introductory remarks 1-2 61 2. Justification for and background to the Lugano Convention 3-12 61 3. Identity of structure between the Brussels Convention and the Lugano Convention — fundamental principles 13 65
Chapter II — Respective scope of the Brussels Convention and the Lugano Convention (Article 54b) 14-17 67
Chapter III — Provisions which distinguish the Lugano Convention from the Brussels Conven tion 18-97 69 1. Summary of these provisions 18-22 69 2. Detailed examination 23-97 70 — Title I: Scope of the Lugano Convention (Article 1) 23 70 — Title II: Jurisdiction (Articles 2 to 24) 24-65 70 — Section 1: General provisions (Articles 2 to 4) 24-35 70 a) Introductory remarks 24 70 b) Exorbitant jurisdictional bases in force in the EFTA Member States and in Portugal 25-31 70 c) The relevance of the second paragraph of Article 3 to the whole structure of the Lugano Convention 32-35 71 1. Scope of the second paragraph of Article 3 32 71 2. Impossibility of founding jurisdiction on the location of property 33-35 71 — Section 2: Special jurisdiction (Articles 5 and 6) 36-47 72 a) Article 5(1) — Contract of employment 36-44 72 b) Article 6(1) — Co-defendants 45 73 c) Article 6 (4) — Combination of actions in rem and in per sonam 46-47 74 — Sections 3 and 4: Jurisdiction in matters relating to insurance (Articles 7 to 12a) and consumer contracts (Articles 13 to 15) . 48 74 — Section 5: Exclusive jurisdiction (Article 16 — Tenancies) ... 49-54 74 -^ Section 6: Prorogation of jurisdiction (Articles 17 and 18) .... 55-62 76 a) Article 17 — Prorogation by an agreement 55-61 76 b) Article 18 — Submission to jurisdiction 62 78 — Section 7: Examination as to jurisdiction and admissibility (Articles 19 and 20) 63 78 — Section 8: Lis pendens and related actions (Articles 21 to 23) 64 78 — Article 21 — Lis pendens 64 78 — Section 9: Provisional, including protective, measures (Article 24) 65 79 — Title III: Recognition and enforcement (Articles 25 to 49) 66-71 79 — Section 1: Recognition (Articles 26 to 30) 66-67 79 — Section 2: Enforcement (Articles 31 to 45) 68-70 79 — Section 3: Common provisions (Articles 46 to 49) 71 80 — Title IV: Authentic instruments and court settlements (Articles 50 and 51) 72 80 — Title V: General provisions (Articles 52 and 53) 73 80 28. 7.90 Official Journal of the European Communities No. C 189/59
— Title VI: Transitional provisions (Articles 54 and 54a) 74-75 81 — Article 54 — Temporal application 74 81 — Article 54a — Maritime claims 75 81 — Title VII: Relationship to the Brussels Convention and to other conventions (Articles 54b to 57) 76-84 81 a) Article 54b — Relationship to the Brussels Convention 76 81 b) Articles 55 and 56 — Conventions concluded between Mem ber States of EFTA 77-78 81 c) Article 57 — Conventions concluded in relation to particular matters 79-84 81 — Title VIII: Final provisions (Articles 60 to 68) 85-97 83 a) Introductory remarks 85 83 b) Article 60 — States party to the Convention 86 83 c) Article 61 — Signature, ratification and entry into force 87-88 83 d) Articles 62 and 63 — Accession 89-90 84 e) Territorial application 91-96 85 0 Territories which become independent 97 86
Chapter IV — Protocols 98-128 86 — Protocol 1 on certain questions of jurisdiction, procedure and enforcement 99-109 86 1. Introductory remarks 99 86 2. Article la — Swiss reservation 100-102 86 3. Article lb — Reservation on tenancies 103 88 4. Article IV — Judicial and extrajudicial documents 104 88 5. Article V — Actions on a warranty or guarantee 105 88 6. Article Va — Jurisdiction of administrative authorities 106-107 89 7. Article Vb — Dispute between the master and a member of a ship's crew 108 89 8. Article VI — Amendment of national legislation 109 89 — Protocol 2 on the uniform interpretation of the Convention 110-119 89 1. Introductory remarks 110-111 89 2. Preamble 112 90 3. Article 1 — Duty of the courts 113-116 90 4. Article 2 — System of exchange of information 117 91 5. Article 3 — Setting up and composition of a Standing Committee . 118 91 6. Article 4 — Convocation and tasks of the Committee 119 92 — Protocol 3 on the application of Article 57 (Community acts) 120-128 93 Chapter V — Declarations annexed to the Convention 129 96
Chapter VI — Judgments of the Court of Justice of the European Communities concerning the interpretation of the Brussels Convention 130-133 97 1. Introductory remarks 130 97 2. Content of the judgments 131 97 3. List of judgments 132 108 4. Cases pending 133 110 No.C 189/60 Official Journal of the European Communities 28. 7. 90
Annex I — The law in force in the EFTA Member States 134-138 111
Annex II — Conventions concluded by the EFTA Member States 139 114
Annex III — Final Act of the Lugano Conference - 115 . 7. 90 Official Journal of the European Communities No. C 189/61
CHAPTER I
GENERAL CONSIDERATIONS
1. INTRODUCTORY REMARKS tional (separation of powers between the legisla ture, the executive and the judiciary), legal (pri macy of the rule of law and the rights of the 1. The Lugano Convention, opened for signature on individual) and economic matters (market econ 16 September 1988, is concluded between the omy). Member States of the European Communities and the Member States of the European Free Trade The two organizations differ however with regard Association (EFTA). to their objectives and institutions. That is why we felt it useful to give a brief outline. It will be referred to in this report as the 'Lugano Convention' although during the preparatory pro ceedings it was known as the 'Parallel Convention'. It was given that name because it corresponds very A. THE EUROPEAN COMMUNITIES closely to the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judg 4. The European Communities differ substantially ments in civil and commercial matters, which was from the other international or European organiza concluded between the six original Community tions on account of their particular aims and the Member States (') and adopted consequent upon originality of their institutional machinery. the accession of new Member States to the Com 2 munities ( ). For convenience, that Convention, in They pursue the specific objectives assigned to its adopted form, will be referred to as the 'Brussels them by the three Treaties establishing them Convention'. (ECSC, EEC and Euratom) but their ultimate objective is to establish a real European union. Although the Lugano Convention takes not only its structure but also numerous provisions from the The economic dimension of this union in the mak Brussels Convention, it is nevertheless a separate ing is complemented by a political discussion instrument. which is expressed through the medium of Euro pean Political Cooperation, by means of which the Twelve endeavour to harmonize their foreign poli 2. This report does not contain a detailed commen cies. tary on all the provisions of the Lugano Conven tion. The construction of Europe initiated by the six founding States (Belgium, the Federal Republic of Where provisions are identical to those of the Brus Germany, France, Italy, the Grand Duchy of Lux sels Convention, the reader should refer to the embourg and the Netherlands) took a step forward existing reports by Mr P. Jenard on the 1968 Con with the signing first of all of the Treaty of Paris vention, by Mr P. Schlosser on the 1978 Conven (18 April 1951) which established the European tion on the accession of Denmark, Ireland and the Coal and Steel Community (ECSC) and subse United Kingdom and by Messrs Evrigenis and quently (on 25 March 1957) of the two Treaties of Kerameus on the 1982 Convention on the acces Rome which laid the foundations of the European sion of Greece (3). Economic Community (EEC) and the European The provisions in force in each of the EFTA Mem Atomic Energy Community (Euratom). ber States on the recognition and enforcement of Denmark, Ireland and the United Kingdom foreign judgments and an account of the relevant acceded to those three Treaties on 1 January 1973 conventions concluded by those States with one (the Nine), Greece on 1 January 1981 (the Ten), another or with Member States of the Communities Spain and Portugal on 1 January 1986 (the are not included in the body of this report but are Twelve). given in Annexes I and II. This different layout from previous reports has been adopted so as not The European Communities therefore currently to complicate the text. comprise twelve European countries which are bound together by jointly undertaken commit ments. 2. JUSTIFICATION FOR AND BACKGROUND TO THE LUGANO CONVENTION 5. With the Single European Act, which entered into force on 1 July 1987, a new stage was reached on 3. The European Communities and EFTA are at pres the path towards a European union. This new ent made up of a great many European countries Community legal instrument aims in particular at who share very similar conceptions of constitu the progressive establishment, over a period expir- No. C 189/62 Official Journal of the European Communities 28. 7. 90
ing on 31 December 1992, of a real internal market 2. The Commission providing for the free movement of goods, persons, services and capital. It also aims at promoting sig The Commission currently consists of 17 members nificant progress in both the monetary field and chosen by common agreement by the Govern new policy sectors (in particular the environment ments. and new technologies). It makes Community deci sion-making machinery more flexible in a number The Commission is the most original institution in of fields and, by means of treaty provisions, institu the Community's institutional machinery. It cannot tionalizes European Political Cooperation. be likened to a secretariat because the authors of the Treaties chose to make it the prime mover of European integration. It participates actively in the preparation and formulation of the acts of the 6. The institutional architecture of the Communities Council by virtue of its power of initiative. rests on four pillars:
3. The Court of Justice 1. The Council of Ministers The role of the Court of Justice is to ensure that Community law is obeyed in the implementation The Council consists of the representatives of the of the three Treaties establishing the European Member States and each Government delegates Communities. Its powers are manifold and it has one of its members to it, depending on the field of inter alia the power to give rulings in the form of competence and the nature of the subjects under judgments on the validity of the acts of Com discussion. munity authorities and on the interpretation of the Treaties and Community acts. The Ministers of Foreign Affairs coordinate gen In its decisions, the Court has affirmed the preced eral Community policy. ence of Community law over Member States' con stitutional and legislative provisions. The Council of Ministers is the Communities' deci Under the Luxembourg Protocol of 3 June 1971, sion-making body. It participates in legislative the Member States of the Communities conferred power and as such is empowered to take binding jurisdiction upon the Court of Justice for giving measures in the form of Regulations or Directives judgment on the interpretation of the 1968 Brussels which are directly binding on the Member States Convention, which is of particular concern to us. and/or their nationals. The Regulations are directly applicable in the Member States, whereas Direc tives have to be incorporated into national legisla 4. The European Parliament tion. Since 1979 the Members of the European Parlia The Council's decisions are prepared by the Perma ment have been elected by direct universal suffrage nent Representatives Committee (Coreper), com for a five-year term of office. posed of the Permanent Representatives of the Member States to the European Communities. Although the European Parliament has quite exten sive powers of political supervision in respect of The Council's decisions are taken unanimously, by the action of the Council and the Commission and a simple majority or by a qualified majority, in the budgetary field, it does not however have depending on the legal provisions on which they legislative powers similar to those of national Par are based. liaments. The Single Act contains new cooperation arrange The Single Act aims at multiplying the cases in ments designed to involve the Parliament more which a majority vote becomes standard practice, closely in the exercise of the legislative power con so as to expedite the proceedings of an enlarged ferred jointly upon the Council and the Commis Community. sion.
Twice a year the European Council brings together 7. In conclusion, in the field under review, it should the Heads of State or of Government of the Mem be noted that: ber States. This body, set up at the highest level on a political basis in 1975, was given Treaty recogni 1. the Lugano Convention is linked to the 1968 tion following the adoption of the Single Act. Brussels Convention which is based on Article 220 of the Treaty establishing the European Economic Community; Its main task is to work out guidelines and give the necessary impetus to the development of the Com 2. with regard to Community acts, legislative munity process. power is mainly conferred upon the Council; 28. 7. 90 Official Journal of the European Communities No. C 189/63
3. the European Communities have created a This second goal was in effect achieved in the very dense network of relations with the out 1970s through negotiations which brought each of side world which are embodied in agreements the present EFTA countries into a new relationship of various kinds, either with States or with with the EEC, and at the same time the EEC was organizations. enlarged by the entry of two former EFTA coun tries, Denmark and the United Kingdom, and of Ireland. Free trade agreements came into force between the enlarged EEC and Austria, Portugal, Sweden and Switzerland on 1 January 1973, and B. EFTA the EEC and Iceland on 1 April 1973. Similar agreements came into force between Norway and the EEC on 1 July 1973 and between Finland and the EEC on 1 January 1974. Under these agree 8. The European Free Trade Association is a group of ments the import duties on almost all industrial six European countries which share with the Euro products were abolished from July 1977. These free pean Communities the aim of creating a dynamic, trade agreements also apply to trade between the homogeneous European economic area embracing EFTA countries and three countries which joined the Member States of the EEC and EFTA. That the EEC at later dates: Greece from 1 January aim was laid down in the Luxembourg Declaration 1981, Portugal and Spain from 1 January 1986. adopted on 9 April 1984 by the Ministers of all EEC and EFTA Member States. As mentioned above, the extension and intensifica EFTA's goal is the removal of import duties, quo tion of EEC-EFTA cooperation have given rise tas and other obstacles to trade in Western Europe since 1984 to talks between the two groups of and the upholding of liberal, non-discriminatory States in many areas connected, directly or indi practices in international trade. Set up in 1960, the rectly, with the EEC's ambitious programme for the Association now has six member countries: Aus creation of a genuine internal market in 1992. They tria, Finland, Iceland, Norway, Sweden and Switz concern matters such as technical barriers to trade, erland. competition rules, intellectual property rights, product liability, etc. EFTA's establishment and evolution form part of the story of economic integration in Western The negotiations for the Lugano Convention came Europe. Its founder members, which included within that context. Denmark, Portugal and the United Kingdom, adopted as their first objective the introduction of free trade between themselves in industrial goods. This objective was realized three years ahead of schedule at the end of 1966. C. JUSTIFICATION FOR THE CONVENTION
9. The trade between the EFTA countries accounts for only 13 to 14 % of their overall trade. Much 10. According to a report produced by Mr Johnsen for more important is their trade with the EEC which the Parliamentary Assembly of the Council of is the source of more than half of their imports and Europe (document 5774 of 9 September 1987 — the destination of more than half of their exports. FDO C5774), 'the Member States of EFTA and the The EFTA countries are also important trading EEC now make up a vast market of 350 million partners for the EEC, providing markets for European consumers. With a few exceptions, between a fifth and a quarter of EEC exports industrial products circulate within this area with (excluding trade between the EEC countries). out being subject to custom duties or quantitative restrictions. It is the largest market in the world, The closeness of the commercial links between the surpassing the United States market (240 million) EFTA and the EEC countries was one of the rea and the Japanese market (120 million).' sons for the attempt in the 1950s to negotiate a free trade area embracing the original six-nation EEC It thus became apparent that this economic cooper and the other Western European countries. The ation between the two groupings of European attempt failed. But when seven of these countries States ought to be strengthened through a conven resolved to strengthen their own links by founding EFTA they saw the Association as, among other tion on jurisdiction and the recognition and things, a means of preparing the way for the even enforcement of judgments. tual fulfilment of their hopes of a single European market. Thus EFTA was born with the ambition of In this connection, the Brussels Convention was bringing about a larger market including all the considered to embody a number of principles countries of Western Europe. This was the second which could serve to strengthen judicial and objective of EFTA's founder members. economic cooperation between the States involved. No. C 189/64 Official Journal of the European Communities 28. 7. 90
The aim of the Brussels Convention is to simplify of organizing negotiations with the EFTA countries the formalities needed for mutual recognition and with a view to extending the Brussels Convention. enforcement of court decisions. For this reason the Convention begins by specifying the rules of ju risdiction regarding the courts before which pro With the assistance of the Council Secretariat and ceedings are to be brought in civil and commercial the Commission departments, preliminary talks matters relating to property. The Convention goes were entered into with the Member States of EFTA on to lay down a procedure for the enforcement of in order to establish whether an extension of the judgments given in another Member State which is Brussels Convention could be envisaged. simpler than traditional arrangements and swift because the initial stages are non-adversarial. It emerged that Norway, Sweden, Switzerland, Fin land, and subsequently Iceland, were in favour of The Brussels Convention and the 1971 Protocol on opening negotiations on the drafting of a parallel its interpretation by the Court of Justice have both Convention to the Brussels Convention. assumed considerable practical importance: hundreds of decisions based on the Convention At the end of this exploratory stage, the representa have been given in the Member States and there is tives of the Governments of the EEC Member a series of interpretative judgments of the Court States, meeting in the Permanent Representatives (see Chapter VI). Committee in May 1985, noted that all the condi tions obtained for negotiations to be initiated. They Because of the magnitude of trade between the therefore agreed to issue an invitation to the EFTA EEC Member States and EFTA, it was to be Member States to take part in such negotiations. expected that the need would arise for a judgment given in a Community Member State to be A working party made up of governmental experts enforced in an EFTA country, or for a judgment from the Member States of the European Commu given in an EFTA member country to be enforced nities and experts appointed by the EFTA Member in a Member State of the European Communities. States was set up to this end. The working party met for the first time on 8 and 9 October 1985 under the alternating chairmanship of Mr Voyame, Director at the Ministry of Justice of the Swiss Confederation, and Mr Saggio, Counsellor at the D. BACKGROUND TO THE CONVENTION Italian Court of Appeal. A delegation sent by the Austrian Government attended the negotiations in an observer capacity, as did representatives of The Hague Conference. The working party also 11. In 1973, when discussions over the accession of appointed two rapporteurs, Mr P. Jenard, at the Denmark, Ireland and the United Kingdom to the time Director of Administration at the Belgian Brussels Convention were under way, the Swedish Ministry of Foreign Affairs, for the Member States Government indicated its interest in the creation of of the European Communities and Mr Moller, at contractual links between the Community Member that time Counsellor on Legislation to the Finnish States on the one hand, and Sweden plus other Ministry of Justice and now President of the Court countries which might be interested on the other of First Instance in Toijala, for the EFTA Member hand, with a view to facilitating the recognition States. and enforcement of judgments in civil and com mercial matters. The working party's discussions lasted two years, during which a preliminary draft Convention was In 1981, the Swiss Mission to the European Com prepared for use as the basic document for a munities took up the Swedish Government's initia diplomatic conference. tive and inquired of the competent authorities of the Commission whether and on what terms the recognition and enforcement of judgments in civil An overall assessment of the results achieved by and commercial matters between the Member the working party can be nothing if not positive, States of the Communities and Switzerland could since wide consensus was reached with regard to be facilitated along the lines of the Brussels Con the draft Convention, to the Protocols which sup vention of 27 September 1968. The inquiry was plement it and are an integral part thereof, and to renewed in April 1982 to Mr Thorn, President of three Declarations. the Commission, by Mr Furgler, Member of the Swiss Federal Council. At all events, the conclusion of a multilateral Con vention between a number of States offers better In January 1985, acting on the instructions of the prospects of legal certainty and practical conveni Council of the European Communities, an ad hoc ence than a series of bilateral, and inescapably working party met to examine, on the basis of a divergent, agreements. The Convention also opens paper submitted by the Commission, the possibility the way towards implementation of a common sys- 28. 7. 90 Official Journal of the European Communities No. C 189/65
tern of interpretation, a point which is specifically risdiction. These rules are applicable in the State in mentioned in Protocol 2. which the initial proceedings are brought and serve to determine the court vested with jurisdiction, Another possibility might have been for the EFTA whereas 'simple treaties' merely contain rules of Member States to accede to the Brussels Conven indirect jurisdiction which do not apply until the tion. This possibility was not followed up because, stage of recognition and enforcement has been being based on Article 220 of the Treaty of Rome reached. and being the subject of the Protocol of 3 June 1971 which entrusted the Court of Justice of the European Communities with the power to interpret Third principle: the Convention, the Brussels Convention is a Com munity instrument and it would have been difficult A defendant's domicile is the point on which the to ask non-Member States to become signatories. rules on jurisdiction hinge. For the purposes of the 1978 Accession Convention, the United Kingdom and Ireland adjusted their legislation to align their concept of domicile on that of many continental 12. The draft Convention and the other instruments 4 drawn up by the working party were submitted to a countries ( ). Proceedings against any person domi diplomatic conference held, at the invitation of the ciled in the territory of a Contracting State must, Swiss Federal Government, in Lugano from 12 to save where the Conventions provide otherwise, be 16 September 1988. All the Member States of the brought before the courts of that State. Under no European Communities and of the European Free circumstances may rules of exorbitant jurisdiction Trade Association were represented at this confer be invoked as arguments (Articles 2 and 3). ence. Certain amendments were made to the drafts prepared by the working party. In accordance with However, where a defendant is not domiciled in the Final Act of the conference (see Annex III), the the territory of a Contracting State jurisdiction con representatives of all the States concerned adopted tinues to be determined in each State by the law of the final texts of the Convention, the three Proto that State. Furthermore, persons domiciled in the cols and the three Declarations. territory of a Contracting State may, regardless of their nationality, avail themselves of the rules of On 16 September 1988, the date of opening for sig jurisdiction which apply in that State, including nature, the required signatures were appended by exorbitant jurisdiction (Article 4), in the same way the representatives of 10 States, that is, for the as nationals of that State. Member States of the European Communities, Bel gium, Denmark, Greece, Italy, Luxembourg and Portugal, and for the Member States of EFTA, Ice Fourth principle: land, Norway, Sweden and Switzerland. The Con vention was signed by Finland on 30 November Both Conventions contain precise and detailed 1988 and by the Netherlands on 7 February 1989. rules of jurisdiction specifying the instances in which a person domiciled in a Contracting State may be sued in the courts of another Contracting State. 3. IDENTITY OF STRUCTURE BETWEEN THE BRUSSELS CONVENTION AND THE LUGANO In this respect, the structures of the two Conven CONVENTION — FUNDAMENTAL PRINCIPLES tions are again identical, these rules being con tained in the following sections.
13. The two Conventions are based on identical funda mental principles which can be summarized as fol lows: (a) Additional rules of jurisdiction
Title II, Section 2 (Articles 5 and 6) contains addi First principle: tional rules of jurisdiction in that the courts therein specified are not mentioned in Article 2. The sec The scope of the two Conventions as determined tion relates to proceedings which can be consid ratione materiae is confined to civil and commer ered as having a particularly close link with the cial matters relating to property. The two Conven court before which proceedings are brought. tions have the same Article 1. The rules of jurisdiction set out in this section are special because, in general, both Conventions Second principle: directly specify which court has jurisdiction.
Both Conventions fall into the 'double treaty' cate As will be seen below, there are certain differences gory, that is to say they contain rules of direct ju between the Brussels Convention and the Lugano No. C 189/66 Official Journal of the European Communities 28. 7. 90
Convention with regard to the provisions con agreement — see points 55 to 61) but not in the tained in this section (see Article 5(1) and Article 6 case of Article 18 (submission to jurisdiction). (4), points 36 to 44,46 and 47).
(b) Mandatory rules (e) Lis pendens and related actions
Both Conventions contain mandatory rules on ju Both Conventions contain provisions on the case risdiction in matters relating to insurance (Section of a lis pendens (Article 21) and related actions 3) and consumer contracts (Section 4), the primary (Article 22) in Section 8, the aim of which is to objective of which is to protect the weaker party. avoid conflicting judgments. The wordings differ The rules are mandatory in that the parties are not slightly here with regard to a lis pendens (see point permitted to depart from them before a dispute has 62). arisen. These sections are the same in both Con ventions. Fifth principle:
The defendant's rights must have been respected in (c) Exclusive jurisdiction the State of origin.
Both Conventions contain rules of exclusive juris Both Conventions provide in the first paragraph of Article 20, the importance of which should be diction (Section 5, Article 16): emphasized, that if a defendant does not enter an (a) in some cases, disputes must be brought before appearance the court must declare of its own the courts of a given State (rights in rem in, or motion that it has no jurisdiction unless its jurisdic tenancies of, immovable property; validity, tion is derived from the provisions of the Conven tion. nullity or dissolution of companies; validity of entries in public registers; registration or valid ity of patents, trade marks and designs; pro The second and third paragraphs of Article 20 ceedings concerned with the enforcement of cover the problem of notification of legal docu judgments); ments to the defendant, the court being obliged to stay its proceedings so long as it has not been (b) the parties are not permitted to waive the ju shown that the defendant was able to receive the risdiction of the competent courts, either by an document instituting the proceedings in sufficient agreement conferring jurisdiction even if time to enable him to arrange for his defence. This entered into after a dispute has arisen (Article Article has not been amended. 17), or by submission to the jurisdiction (Article 18); Sixth principle: (c) a court of a State other than the State whose courts have exclusive jurisdiction must declare, Grounds for refusing recognition and enforcement of its own motion, that it has no jurisdiction are limited. (Article 19); Pursuant to the first paragraph of Article 26 of both (d) breach of the rules constitutes grounds for Conventions, judgments given in a Contracting refusing recognition and enforcement (Articles State must be recognized in the other Contracting 28 and 34); States without any special procedure being required. In other words, judgments are entitled to (e) the rules apply whether or not the defendant is automatic recognition: the Conventions establish domiciled in a Contracting State. the presumption in favour of recognition and the only grounds for refusal are those listed in Articles The only difference between the two Conventions 27 and 28. relates to tenancies of immovable property (see points 49 to 54). There are two conditions which agreements such as this usually contain but which these two Conven tions omit: recognition does not require that the (d) Prorogation of jurisdiction foreign judgment should have become res judicata, and the jurisdiction of the court in the State of ori gin is no longer examined by the court of the State The two Conventions also contain rules of proro in which enforcement is being sought. In this res gation of jurisdiction by agreement or tacitly (Title pect there are some differences between the two II, Section 6, Articles 17 and 18). The Conventions Conventions with regard to Article 28 (see points differ in the case of Article 17 (prorogation by 16 and 82). 28. 7. 90 Official Journal of the European Communities No. C 189/67
Seventh principle: regard to Conventions concluded on particular matters, there are a few differences between the The enforcement procedure is unified and simpli two Conventions (see points 79 to 82). fied. It is unified in that, in every Contracting State, the procedure is initiated by submission of an applica Ninth principle: tion. It is simplified in particular with reference to the Steps are taken to ensure that interpretation of the appeals procedure. two Conventions is uniform. The Lugano Convention makes a number of tech nical adjustments as against the 1968 Convention Interpretation of the 1968 Convention is entrusted (see points 68 to 70). to the Court of Justice by the Luxembourg Protocol of 3 June 1971. Eighth principle: Interpretation of the Lugano Convention is gov The Conventions govern relations with other inter erned by Protocol 2 to that Convention (see points national Conventions. On this point, and with 110 to 119).
CHAPTER II
RESPECTIVE SCOPE OF THE BRUSSELS CONVENTION AND THE LUGANO CONVENTION (Article 54b)
14. As shown above, although the structure of the two (b) a judgment has been delivered in one Euro Conventions is identical and they contain a great pean Community Member State, e.g. France, number of comparable provisions, they remain and must be recognized or enforced in another separate Conventions. such State, e.g. Italy.
15. The respective application of the two Conventions The Brussels Convention also applies where a per is governed by Article 54b. The first point to note is son domiciled outside the territory of a European that this Article primarily concerns the courts of Community Member State and outside the territory member countries of the European Communities, of any other State party to the Lugano Convention, these being the only courts which may be required e.g. in the United States, is summoned to appear to deliver judgments pursuant to either Conven before a court in a European Community Member tion. Courts in EFTA Member States are not State (Article 4 of the Brussels Convention). bound by the Brussels Convention since the EFTA States are not parties to that Convention. In each of these three instances, the Court of Jus However, Article 54b is relevant for the courts of tice of the European Communities has jurisdiction EFTA countries since it was felt advantageous that under the 1971 Protocol to rule on problems which Article 54b should, for reasons of clarity, contain may arise with regard to the interpretation of the details relating to the case of a lis pendens, related Brussels Convention. actions and recognition and enforcement of judg ments. The philosophy of Article 54b is as follows: 16. However, under paragraph 2, the court of a Euro pean Community Member State must apply the According to paragraph 1, the Brussels Convention Lugano Convention where: continues to apply in relations between Member States of the European Communities. (1) a defendant is domiciled in the territory of a This applies in particular where: State which is party to the Lugano Convention and an EFTA member or is deemed to be so (a) a person, of whatever nationality, domiciled in domiciled under Articles 8 or 13 of the Con one Community State, e.g. France, is sum vention. For instance, if a person domiciled in moned to appear before a court in another Norway is summoned before a French court, such State, e.g. Italy. The plaintiffs nationality jurisdiction will be vested in that court only in and domicile are immaterial; the cases for which the Lugano Convention No. C 189/68 Official Journal of the European Communities 28. 7. 90
provides. In particular the rules of exorbitant (5) Article 54b (3) provides that a court in an jurisdiction provided for in Article 4 of the EFTA Member State may refuse recognition or Brussels Convention may not be relied on as enforcement of a judgment delivered by a against that person; court in a Community Member State if the grounds on which the latter court has based its jurisdiction are not provided for in the Lugano Convention and if recognition or enforcement (2) the courts of an EFTA Member State possess is being sought against a party who is domi exclusive jurisdiction (Article 16) or jurisdic ciled in any EFTA Contracting State. tion by prorogation (Article 17). The courts of Member States of the European Communities may not, for instance, be seised of a dispute relating to rights in rem in immovable property These grounds for refusal are additional to situated in the territory of a State party to the those provided for in Article 28, and arise Lugano Convention and an EFTA Member essentially from a guarantee sought by the State, notwithstanding Article 16 (1) of the EFTA Member States. The cases involved can Brussels Convention, which will apply only if be expected to arise relatively seldom, since the the immovable property is situated in the terri Conventions are so similar in respect of their tory of a State party to the 1968 Convention; rules of jurisdiction. The possibility neverthe less remains. The case would arise in the event of a judgment on a contract of employment delivered by a court in a Community Member (3) recognition or enforcement of a judgment State which had erroneously based its jurisdic delivered in a State party to the Lugano Con tion with regard to a person domiciled in an vention and an EFTA Member State is being EFTA Member State either on Article 4 or sought in a Community Member State (para Article 5 (1) of the Brussels Convention, i.e. in graph 2 (c)). a manner inconsistent with Article 5 (1) of the Lugano Convention, which includes a specific provision on contracts of employment, or on an agreement conferring jurisdiction which Paragraph 2 also provides that the Lugano predated the origin of the dispute (Article 17). Convention applies where a judgment delivered in a Community Member State is to be enforced in an EFTA Member State party to the Lugano Convention. However, in the interests of freedom of move ment of judgments, the judgment will be recog nized and enforced provided that this can be done in accordance with the rules of common This does not resolve potential conflicts law of the State addressed, in particular its between the two Conventions, but it does common law rules on the jurisdiction of for define their respective scope. Obviously if a eign courts; judgment has been delivered in a State party to the Lugano Convention and an EFTA Member State and is to be enforced either in a Com munity Member State or in an EFTA Member State, the Brussels Convention does not apply; (6) for convenience, we have used the term 'EFTA Member States' in the above examples. Obviously, the same arrangements would apply to States which are not members of either the EEC or EFTA but accede to the (4) Article 54b also contains provisions relating to Lugano Convention (see Article 62 (1) (b)). a lis pendens (Article 21) and related actions (Article 22). Under Article 54b (2) (b) a court in . a Community Member State must apply these Articles of the Lugano Convention if a court in an EFTA Member State is seised of the same dispute or a related claim.
17. The question remained unresolved as to how the Lugano Convention would apply between Com Apart from the greater clarity which they bring, munity Member States one of which was not a these provisions serve a double purpose: to party to the Brussels Convention such as, for ins remove all uncertainty, and to ensure that tance, Spain or Portugal, while both were parties to judgments delivered in the different States the Lugano Convention. The issue would, for concerned do not conflict; example, arise should both Belgium and Spain 28. 7. 90 Official Journal of the European Communities No.C 189/69
become parties to the Lugano Convention before other. In the rapporteurs' opinion, the Lugano the Treaty on the accession of Spain to the Brussels Convention would, as a source of law, apply in the Convention has been concluded or has entered case in point pending entry into force between Bel into force and should enforcement of a judgment gium and Spain of the Treaty on the accession of delivered in one of these States be requested in the Spain to the Brussels Convention.
CHAPTER III
PROVISIONS WHICH DISTINGUISH THE LUGANO CONVENTION FROM THE BRUSSELS CONVENTION
SUMMARY OF THESE PROVISIONS Articles 31 to 41
The amendments are not numerous. Before consi Technical modifications have been made to some dering them in detail it might be helpful to list the of these Articles with regard to procedure for Articles in the Lugano Convention which differ enforcement and modes of appeal. from the corresponding Articles in the Brussels Convention. Article 50
The wording of this Article, which concerns Article 3 authentic instruments, has been slightly altered.
This Article adds the rules of exorbitant jurisdic Article 54 tion current in the EFTA Member States and in Portugal. It should be noted that no such rules exist This Article has been clarified with regard to the in Spain. transitional provisions.
Article 5 (1) Article 54A
A special provision has been inserted covering This Article is based on Article 36 of the 1978 matters relating to contracts of employment. Accession Convention and contains additions. Article 54B Article 6 This is a new Article governing the respective scope A new paragraph 4 relates to the combination of of the Brussels Convention and the Lugano Con proceedings in rem with proceedings in personam. vention.
Article 16 Article 55 This Article concerns relations with other conven Matters relating to tenancies in immovable pro tions and refers only to conventions to which perty are the subject of a new provision (paragraph EFTA Member States are party. 1 (b)) and of a reservation (Protocol No 1, Article lb). Article 57 Article 17 This Article governs implementation of conven This Article has been amended with regard to the tions concluded with regard to particular matters reference to commercial practices and contracts of and differs appreciably from Article 57 of the Brus employment. sels Convention. Articles 60 to 68 (Final provisions) Article 21 These Articles have been amended. The reference in this Article to lis pendens has been somewhat amended. 19. Protocol 1
Article 28 Article la
This Article now contains further grounds for refus This new Article contains a reservation requested ing recognition and enforcement. by the Swiss delegation. No.C 189/70 Official Journal of the European Communities 28. 7. 90
Article lb TITLE II
This new Article contains a reservation resulting from the amendment of Article 16 (1) relating to JURISDICTION (Articles 2 to 24) tenancies in immovable property. Section 1 Article V
This Article covers actions on a warranty or gua General provisions (Articles 2 to 4) rantee and contains additions covering current le gislation in several States. (a) Introductory remarks
Article Va 24. The proposed adaptations to Articles 2 to 4 are confined to mentioning, in the second paragraph The Article covers maintenance matters in parti of Article 3, certain exorbitant jurisdictions in the cular and contains additions to take account of the legal systems of the EFTA Member States and of situation in several States. Portugal. A brief explanation of the proposed addi tional provisions (see point 1) precedes, as in the Article Vb Schlosser report, two more general remarks on the relevance of these provisions to the whole structure of the Lugano Convention. This Article covers disputes between the master and a member of the crew of a vessel and again contains additions to take account of the laws in a number of States. (b) Exorbitant jurisdictional bases in force in the EFTA Member States and Portugal
20. Protocol 2 1. Austria This Protocol has been added in order to ensure that, as far as possible, the Lugano Convention and 25. Article 99 of the Law on Court Jurisdiction (Juris- the provisions therein which are identical to the diktionsnorm) provides that any person neither Brussels Convention are interpreted uniformly. domiciled nor ordinarily resident in Austria may, in matters relating to property, be sued in the court for any place where he has assets or where the dis 21. Protocol 3 puted property is located. The value of the assets located in Austria may, however, not be considera This Protocol deals with the problem of Com bly lower than the value of the matter in dispute. munity acts. Foreign establishments, foundations, companies, cooperatives and associations may, according to 22. Declarations the abovementioned Article (paragraph 3), also be sued in the court for the place where they have their permanent representation for Austria or an First Declaration: supplementary to Protocol 3. agency. Second and Third Declarations: supplementary to Protocol 2 on the uniform interpretation of the Lugano Convention. 2. Finland
26. The second sentence of Article 1 of Chapter 10 of 2. DETAILED EXAMINATION the Finnish Code of Judicial Procedure provides that a person who has no habitual residence in Fin TITLE I land may be sued in the court of the place where the documents instituting the proceeding were served on him or in the court of the place where he SCOPE OF THE LUGANO CONVENTION has assets. The third sentence of the same Article (Article 1) provides that a Finnish national who is staying abroad may also be sued in the court for the place 23. Since this differs in no respect from the Brussels where he had his last residence in Finland. The Convention, the reader is referred to the Jenard fourth sentence of the same Article provides that a and Schlosser reports. foreign national, having neither domicile nor resid- 28. 7. 90 Official Journal of the European Communities No. C 189/71
ence in Finland may, unless there is a special prov ant's domicile, if the latter is a foreigner who ision to the contrary as to nationals of a particular has been resident in Portugal for more than six State, be sued in the court for the place where the months or who is fortuitously on Portuguese documents instituting the proceedings were served territory provided that, in the latter case, the on him or in the court for the place where he has obligation which is the subject of the dispute assets. was entered into in Portugal.
Article 65a (c) of the Code of Civil Procedure con 3. Iceland fers exclusive jurisdiction on Portuguese courts for actions relating to employment relationships if any 27. Article 77 of the Icelandic Civil Proceedings Act of the parties is of Portuguese nationality. provides that in matters relating to property obliga tions to Icelandic citizens, firms etc. any person not Article 11 of the Code of Labour Procedure gives domiciled in that country may be sued in the court jurisdiction to Portuguese labour courts for dis for the place where the person was when the docu putes concerning a Portuguese worker where the ments instituting the proceedings were served on contract was concluded in Portugal. him or where he has assets.
4. Norway (c) The relevance of the second paragraph of Article 3 to the whole structure of the Lugano Conven tion 28. Article 32 of the Norwegian Civil Proceedings Act provides that any person not domiciled in Norway may be sued, in matters relating to property, in the court for the place where he has assets or where the 1. Scope of the second paragraph of disputed property is located at the time when the Article 3 documents instituting the proceedings were served on him. 32. The rejection as exorbitant of jurisdictional bases 5. Sweden hitherto considered to be important in the various States should not, any more than the second para graph of Article 3 of the 1968 Brussels Convention, 29. The first sentence of Section 3 of Chapter 10 of the mislead anyone as regards the scope of the first Swedish Code of Judicial Procedure provides that paragraph of Article 3. Only particularly extrava anyone without a known domicile in Sweden may gant claims to international jurisdiction for the be sued, in matters concerning payment of a debt, courts of a Contracting State are expressly under in the court for the place where he has assets. lined. Other rules founding jurisdiction in the national laws of the Contracting States also remain compatible with the Lugano Convention only to 6. Switzerland the extent that they do not offend against Article 2 and Articles 4 to 18. Thus, for example, the juris diction of Swedish courts in respect of persons 30. Article 40 of the Federal Law on Private Interna domiciled in a Contracting State can no longer be tional Law states that if there is no other provision based, in contractual matters, on the fact that the on jurisdiction in Swiss law an action concerning contract was entered into in Sweden. sequestration may be brought before the court for the place where the goods were attached in Switzer land. 2. Impossibility of founding juris diction on the location of property 7. Portugal
31. Article 65 of Chapter II of the Code of Civil Proce 33. With regard to Austria, Denmark, Finland, Ger dure provides that a foreign national may be sued many, Iceland, Norway, Sweden and the United in a Portuguese court where: Kingdom, the list in the second paragraph of — (paragraph 1 (c)) the plaintiff is Portuguese Article 3 contains provisions rejecting jurisdiction and, if the situation were reversed, he could be derived solely from the existence of property in the sued in the courts of the State of which the territory of the State in which the court is situated. defendant is a national, Such jurisdiction cannot be invoked even if the proceedings concern a dispute over rights of own — (paragraph 2) under Portuguese law, the court ership, or possession or the capacity to dispose of with jurisdiction would be that of the defend the specific property in question. No. C 189/72 Official Journal of the European Communities 28. 7. 90
34. With regard to Switzerland, the list in the second a contract of employment as a representative bind paragraph contains a provision rejecting jurisdic ing a worker to an undertaking was the obligation tion derived solely from an attachment of property which characterized the contract, i.e. that of the located in Switzerland. There is, however, no obsta place where the work was carried out (judgment of cle for Swiss courts pursuant to Article 24, to grant the Court of 26 May 1982 in Ivenel v. Schwab, see such provisional, including protective, measures as Chapter VI). may be available under the law of Switzerland, even if, under the Convention, the courts of another Contracting State have jurisdiction as to This ruling was based, amongst other things, on the substance of the matter. Article 6 of the Rome Convention on the law applicable to contractual obligations (OJ No L 266, 1980, p. 1), which provides that in matters relating 35. As regards persons who are domiciled outside the to an employment contract, the contract 'is to be Contracting States, the provisions which hitherto governed, in the absence of choice of the appli governed the jurisdiction of courts in the Contract cable law, by the law of the country in which the ing States remain unaffected. Even the rules on ju employee habitually carries out his work in per risdiction mentioned in the second paragraph of formance of the contract, unless it appears that the Article 3 may continue to apply to such persons. contract is more closely connected with another Judgments delivered by courts which thus have ju country'. In the above judgment, the Court com risdiction must also be recognized and enforced in mented that the aim of this provision was to secure other Contracting States unless one of the excep adequate protection for the party who from the tions in paragraph 5 of Article 27 or in Article 59 of socioeconomic point of view was to be regarded as the Convention applies. the weaker in the contractual relationship (see also Giuliano-Lagarde report, OJ No C 282, 1982, The latter provision is the only one concerning p. 25). which the list in Article 3 second paragraph is not only of illustrative significance, but has direct and restrictive importance. In another ruling, the Court of Justice observed that contracts of employment, like other contracts for work other than on a self-employed basis, dif Section 2 fered from other contracts — even those for the provision of services — by virtue of certain particu larities: they created a lasting bond which brought Special jurisdiction (Articles 5 and 6) the worker to some extent within the organizational framework of the business of the undertaking or employer, and they were linked to the place where (a) Article 5 (1) — Contract of employment the activities were pursued, which determined the application of mandatory rules and collective agreements (judgment of 15 January 1987 in Shen- 36. The domicile of the defendant constitutes the basic avai v. Kreischer, see Chapter VI). rule of both the Brussels Convention and the Lugano Convention. During negotiation of the Lugano Convention the However, Section 2 (Articles 5 and 6) of Title II on EFTA Member States requested that, in respect of jurisdiction contains a number of supplementary Article 5 and Article 17 (for this last Article, see provisions. Under these provisions, the plaintiff point 60), matters relating to employment contracts may choose to bring the action in the court speci should be the subject of a separate provision. fied in Section 2, or in the courts of the State in which the defendant is domiciled (Article 2).
Article 5 (1) of the Brussels Convention provides This request was granted. that the defendant may be sued 'in matters relating to a contract, in the courts for the place of perform ance of the obligation in question'.
38. Under the new Article 5 (1) on matters relating to 37. This paragraph is applicable with regard to a con contracts of employment, the place of performance tract of employment (see Jenard report, p. 24 and of the obligation in question is deemed to be that Chapter VI: judgment of the Court of Justice of 13 where the employee habitually carries out his work. November 1979 in Sanicentral v. Collin, according If he does not habitually carry out his work in any to which employment legislation comes within the one country, the place is that in which is situated Convention's scope). When asked to give a ruling the place of business through which he was on this matter, the Court of Justice ruled that the engaged. It should be noted that such an issue is obligation to be taken into account in the case of currently before the Court of Justice (see Chapter claims based on different obligations arising under VI, Six Constructions v. Humbert case). 28. 7. 90 Official Journal of the European Communities No. C 189/73
As we have seen, this provision is in line with the jurisdiction will be congruent with the applicable previous judgments of the Court of Justice corres law. The same applies in some States which are not ponding quite closely to Article 6 of the Rome parties to the Rome Convention. Convention (5).
41. The question whether a contract of employment 39. The stipulation in Article 5(1) gives rise to the fol exists is not settled by the Convention. If the judge lowing comments: to whom the matter has been referred gives an affirmative reply to this question, he will have to apply the second part of Article 5 (1), which consti According to the general structure of the Lugano tutes a specific provision. Although there is as yet Convention, the following have jurisdiction where no independent concept of what constitutes a con there are disputes between employers and employ tract of employment, it may be considered that it ees: presupposes a relationship of subordination of the employee to the employer (see Chapter VI, judg — the courts of the State in which the defendant ments in Shenavai v. Kreischer, cited earlier, and in is domiciled (Article 2), Arcado v. Haviland of 8 March 1988).
— the courts specified in Article 5 (1). If an employee habitually carries out his work in the 42. Article 5 (1) refers only to individual employment same country, but not in any particular place, relationships, and not to collective agreements the internal law of that country will determine between employers and workers' representatives. the court which has jurisdiction,
— courts on which jurisdiction has been con 43. The term 'place of business' is to be understood in ferred by an agreement entered into after the the broad sense; in particular, it covers any entity dispute has arisen (see Article 17 (5)), such as a branch or an agency with no legal person ality. — courts whose jurisdiction is implied by submis sion (Article 18). 44. In conclusion, it may be considered that although However, these rules do not apply unless the dis the texts of the Brussels Convention and the pute contains an extraneous element. The Conven Lugano Convention are not identical, they do con tions only lay down rules of international jurisdic verge, particularly by reason of the interpretation tion (see preamble). They have no effect if the by the Court of Justice of Article 5 (1) of the Brus contract (domicile of the employer, domicile of the sels Convention. employee and place of work) is actually situated in a single country. In this connection, the employee's nationality must not be taken into account, as the employee must be treated in the same way as other (b) Article 6 (I) — Co-defendants employees.
On the other hand, if the defendant is domiciled 45. No change has been made to the text of the Brus outside the territory of one of the Contracting sels Convention which provides that 'a person States, Article 4 is applicable. domiciled in a Contracting State may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domi ciled'. However, this provision was taken over ver 40. Where the defendant does not habitually carry out batim only in the light of the comments made in his work in any one country, the courts of the place the Jenard report on the 1968 Convention (OJ No in which the place of business through which he C 59/79, p. 26) to the effect that 'in order for this was engaged is situated will have jurisdiction. This rule to be applicable there must be a connection system is in keeping with that laid down by Article between the claims made against each of the defen 6 (2) (b) of the Rome Convention on the law appli dants, as for example in the case of joint debtors. It cable to contractual obligations. follows that action cannot be brought solely with the object of ousting the jurisdiction of the courts The purpose of the provision is to avoid increasing of the State in which the defendant is domiciled.' A the number of courts with jurisdiction in disputes few days after the diplomatic conference ended, between employers and employees where the the Court of Justice delivered a judgment along employee is required to carry out his work in sev these lines (judgment of 27 September 1988 in Kal- eral countries. In addition, for States parties to the felis v. Schroder, see Chapter VI, OJ No C 281, Rome Convention and the Lugano Convention, 4. 11. 1988, p. 18). No. C 189/74 Official Journal of the European Communities 28. 7. 90
(c) Article 6 (4) — Combination of actions in rem by the Lugano Convention. It goes without saying and in personam however that the combination of the two actions which this paragraph deals with have to be insti tuted by the 'same claimant'. The 'same claimant' includes of course also a person to whom another person has transferred his rights or his successor.
46. When a person has a mortgage on immovable pro perty the owner of that property is quite often also Sections 3 and 4 personally liable for the secured debt. Therefore it has been made possible in some States to combine an action concerning the personal liability of the Jurisdiction in matters relating to insurance owner with an action for the enforced sale of the (Articles 7 to 12a) and over consumer contracts immovable property. This presupposes of course (Articles 13 to 15) that the court for the place where the immovable property is situated also has jurisdiction as to actions concerning the personal liability of the 48. Since no amendments have been made to these owner. sections, reference should be made to the Jenard and Schlosser reports.
It was agreed that it was practical that an action concerning the personal liability of the owner of an Section 5 immovable property could be Combined with an action for the enforced sale of the immovable pro perty in those States where such a combination of Exclusive jurisdiction actions was possible. Therefore it was deemed appropriate to include in the Convention a provi sion according to which a person domiciled in a Article 16(1) — Tenancies Contracting State also may be sued in matters relating to a contract, if the action may be com bined with an action against the same defendant in 49. Under Article 16 (1) of the Brussels Convention, matters relating to rights in rem in immovable pro only courts of the Contracting State in which the perty, in the court of the Contracting State in which immovable property is situated have jurisdiction the property is situated. concerning rights in rem in, or tenancies of, immov able property. Thus the wording covers not only all disputes concerning rights in rem in immovable property, but also those relating to tenancies of To illustrate, let us assume that a person domiciled such property. According to the Jenard report (p. in France is the owner of an immovable property 35), the Committee which drafted the Brussels situated in Norway. This person has raised a loan Convention intended to cover disputes between which is secured through a mortgage on his immov landlord and tenant over the existence or interpre able property in Norway. In the eventuality of the tation of tenancy agreements, compensation for loan not being repaid when due, if the creditor damage caused by the tenant, eviction, etc. The wishes to bring an action for the enforced sale of rule was, according to the same report, not the immovable property, the Norwegian court has intended by the Committee to apply to proceedings exclusive jurisdiction under Article 16 (1). How concerned only with the recovery of rent, since ever, under the present provision, this court also such proceedings can be considered to relate to a has jurisdiction as to an action against the owner of subject-matter which is quite distinct from the the property concerning his personal liability for rented property itself. the debt, if the creditor wishes to combine the latter action with an action for the enforced sale of the The working party which drafted the Convention property. on the accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention and to the Pro tocol on its interpretation by the Court of Justice was, however, according to the Schlosser report (paragraph 164), unable to agree whether actions 47. It is evident that this jurisdictional basis cannot concerned only with rent, i.e. dealing simply with exist by itself. It must necessarily be supplemented recovery of a debt, are excluded from the scope of by legal criteria which determine on which condi Article 16(1). tions such a combination is possible. Thus the provisions already existing in or which in the future As stated in the Jenard report, the reference to ten may be introduced into the legal systems of the ancies in Article 16 (1) of the Brussels Convention Contracting States with reference to the combining includes tenancies of dwellings and of premises for of the abovementioned actions remain unaffected professional or commercial use, and agricultural 28. 7. 90 Official Journal of the European Communities No. C 189/75
holdings. According to the Schlosser report, the totally unacceptable as the normal jurisdiction underlying principle of the provision quite clearly rules of the Convention would have been appli does not require its application to short-term agree cable to tenancies of immovable property, which ments for use and occupation such as, for example, was alien to the whole philosophy existing in this holiday accomodation. respect at least in the Community States. Thus the working party decided to include in Article 16 (1) a new subparagraph (b) containing a special provi sion concerning short-term tenancies.
50. The Court of Justice of the European Communities has ruled that Article 16(1) does not cover disputes 52. The result of this change is that, where tenancies relating to transfer of an usufructuary right in are concerned, there will be two exclusive jurisdic immovable property (judgment of 14 December tions, which might be described as alternative 1977 in Sanders v. Van der Putte, see Chapter VI). exclusive jurisdictions. Under subparagraph (a), The Court held that Article 16 (1) must not be the courts of the Contracting State in which the interpreted as including an agreement to rent under immovable property is situated will always have a usufructuary lease a retail business carried on in jurisdiction without restriction. However, under immovable property rented from a third person by subparagraph (b), in proceedings which have as the lessor. However, departing from the intentions their object tenancies of immovable property con of the authors of the 1968 Convention, the Court of cluded for temporary private use for a maximum Justice recently ruled that the exclusive jurisdiction period of six consecutive months — which covers provided for in Article 16 (1) also applies to pro particularly holiday lettings — the plaintiff may ceedings in respect of the payment of rent, and that also apply to the courts of the Contracting State in this includes short-term lettings of holiday homes which the defendant is domiciled. This option is (judgment of 18 January 1985 in Rosier v. Rottwin- open to him only if the tenant (and not the owner) kel, see Chapter VI). The Court held that this is a natural person and if, in addition, neither party exclusive jurisdiction applies to all lettings of is domiciled in the Contracting State in which the immovable property, even for short term and even property is situated. where they relate only to the use and occupation of a holiday home and that this jurisdiction covers all disputes concerning the obligations of the landlord Legal persons holding tenancies were excluded or the tenant under a tenancy, in particular those since they are generally engaged in commercial concerning the existence of tenancies or the inter transactions. pretation of the terms thereof, their duration, the giving up of possession to the landlord, the repair ing of damage caused by the tenant or the recovery Furthermore, where one of the parties is domiciled of rent and of incidental charges for the consump in the Contracting State in which the property is tion of water, gas and electricity. This decision situated, it was considered appropriate to retain the seems at least partially to be in contradiction with rule in Article 16 (1) which lays down the principle what, according to the Jenard and Schlosser of the jurisdiction of the courts of that State. reports, was the intention of those who drafted the Brussels Convention.
53. Article 16 (1) (b) did, however, create serious politi cal difficulties for certain Community Member States. In order to overcome these difficulties, the working party agreed that this provision be accom panied by the possibility of a reservation. By 51. Having regard especially to the ruling given by the means of this, any Contracting State may declare Court of Justice in the case of Rosier v. Rottwinkel, that it will neither recognize nor enforce a judg the EFTA Member States insisted on the inclusion ment in respect of a case concerning tenancies of of a special provision concerning short-term tenan immovable property, if the immovable property cies of immovable property in the Lugano Conven concerned is situated on its territory even if the ten tion. As an alternative, these States put forward the ancy is such as referred to in Article 16 paragraph 1 idea of excluding tenancies totally from the scope (b) and the jurisdiction of the court which has of the Convention or particularly from Article 16. given the judgment has been based on the domicile The working party agreed that it was inappropriate of the defendant. This reservation is given in to exclude tenancies altogether from the scope of Article lb of Protocol No 1. the Convention, in view of the importance of this matter. As to the proposal for excluding tenancies from Article 16 especially, the delegations of the This possibility of a reservation only concerns such Community Member States found such a solution cases in which the immovable property is situated No. C 189/76 Official Journal of the European Communities 28. 7. 90
in the State where recognition and enforcement are Brussels Convention (see Chapter VI), the working sought. If, thus, for instance, Spain makes use of party preparing the 1978 Convention on the acces this possibility, that does not mean that Spain is sion of the Kingdom of Denmark, Ireland and the entitled to refuse the recognition or enforcement of United Kingdom of Great Britain and Northern a judgment given in proceedings which had as their Ireland to the Brussels Convention and to the Pro object a tenancy referred to in Article 16 (1) (b) if tocol of 3 June 1971 on its interpretation by the the immovable property is situated in another State Court of Justice was of the opinion that these for e.g. Italy, and the judgment is given by a court in a mal requirements did not cater adequately for the third State, where the defendant has his domicile, customs and needs of international trade. There e.g. Sweden. Whether the State where the immova fore a relaxation of these formal requirements as ble property is situated has made use of the reser far as agreements on jurisdiction in international vation is in this case completely irrelevant. trade or commerce are concerned was felt neces sary. According to Article 17 of the Brussels Con It was however understood that any State which vention as amended by the 1978 Accession Con wishes to use this reservation may make a narrower vention, an agreement conferring jurisdiction may reservation than that provided for. Thus a State in international trade or commerce be in a form may, for instance, declare that the reservation is which accords with practices in that trade or com limited to the case where the landlord is a legal merce of which the parties are or ought to have person. been aware.
54. Article 16 (1) applies only if the property is situated in the territory of a Contracting State. The text is sufficiently explicit on this point. If the property is 57. During the negotiations on the Lugano Conven situated in the territory of a third State, the other tion, the EFTA Member States, however, felt that provisions of the Convention apply, e.g. Article 2 if this provision was too vague and might create legal the defendant is domiciled in the territory of a uncertainty. Those States feared that Article 17 (1), Contracting State, and Article 4 if he is domiciled as far as agreements on jurisdiction in international in the territory of a third State, etc. commerce or trade are concerned, might make it possible to consider an agreement established by the mere fact that no protest has been launched against a jurisdiction clause in certain unilateral Section 6 statements by one party, for instance in an invoice or in terms of trade presented as a confirmation of the contract. Therefore the EFTA Member States Prorogation of jurisdiction (Articles 17 and 18) proposed the following amendment of the second sentence of Article 17(1):
(a) Article 17— Prorogation by an agreement 'Such an agreement conferring jurisdiction shall be either 55. 7. Paragraph 1 of this Article essentially concerns the formal requirements for agreements conferring jurisdiction. The question of whether an agreement (a) in writing (or clearly evidenced in writing) on jurisdiction has been validly entered into (e.g. including an exchange of letters, telegrams and lack of due consent) is to be regulated by the appli telexes (or other modern means of technical cable law (judgment of the Court of Justice of communications), or 11 November 1986 in Iveco Fiat v. Van Hool, see Chapter VI). As to whether such an agreement can be validly entered into in specific matters it should be pointed out that the Court of Justice (judgment (b) included or incorporated by reference in a bill of 13 November 1979 in Sanicentral v. Collin, see of lading or a similar transport document.' Chapter VI) ruled that in matters governed by the Convention national procedural law was set aside in favour of the Convention's provisions. The representatives of the Community Member States found however that this proposal would not only lead to an excessive amount of rigidity but 56. According to the original version of Article 17 of would also be in contradiction with the rulings of the Brussels Convention, an agreement conferring the Court of Justice of the European Communities, jurisdiction must be in writing or evidenced in writ according to which it should be possible to take ing. In the light of the interpretation of the Court into account particular practices (judgment of of Justice of the European Communities in some 14 December 1976 in Segoura v. Bonakdarian, see of its first judgments concerning Article 17 of the Chapter VI). 28. 7. 90 Official Journal of the European Communities No. C 189/77
58. Article 17 (1) (a) of the Lugano Convention is Court of Justice of the European Communities. In based on Article 9 paragraph 2 of the 1980 United this connection, readers are referred to Chapter Nations Convention on Contracts for the Interna VI.2, point 12 'Article 17', paragraphs 1 to 12. tional Sale of Goods (the so-called Vienna Con vention). Since the Member States of the EEC and the EFTA States may become parties to that Con However, it should be mentioned in this context vention, the working party found it desirable to that the Court of Justice has ruled that an agree align in this respect the text of Article 17 on the ment between the parties with regard to the place text of Article 9 paragraph 2 of the Vienna Conven of performance, which constitutes a ground of ju tion. The provision can be seen as a compromise risdiction pursuant to Article 5 (1), is sufficient to between the two groups of States. confer jurisdiction without being subject to the for mal requirements laid down in Article 17 for proro gation of jurisdiction (judgment of 17 January 1980 First, according to Article 17 (1) (b) of the Lugano in Zelger v. Salinitri, see Chapter VI). Convention, an agreement conferring jurisdiction fulfils the formal requirements if it is in a form that accords with practices which the parties have estab lished between themselves. This is not provided for 60. 2. Article 17 (5) was proposed by the EFTA Mem in the wording of Article 17 of the Brussels Con ber States. It provides that in matters relating to vention. In the light of the case law of the Court of contracts of employment an agreement conferring Justice of the European Communities (see Chapter jurisdiction within the meaning of the first para VI), this seems, however, to be the understanding graph shall have legal force only if it is entered into of Article 17 of the Brussels Convention. The work after the dispute has arisen. The background of this ing party was of the opinion that this understand provision is the same as that for Article 5 (1), i.e. ing should be explicitly reflected in the text of the the protection of the employee, who from the Lugano Convention. socioeconomic point of view is regarded as the weaker in the contractual relationship. It seemed desirable that it should not be possible for the pro Secondly, in international trade or commerce an tection intended to be given to employees by virtue agreement conferring jurisdiction fulfills the formal of Article 5 (1) to be taken away by prorogation requirements if it is in a form that accords with a agreements entered into before the dispute arose. usage of which the parties are or ought to have As in the case of Article 5(1) this provision applies been aware and which in such trade is widely only to individual employment relationships and known to, and regularly observed by, parties to not to collective agreements concluded between contracts of the type involved in the particular employers and employees' representatives. trade or commerce concerned.
Thus, even in international trade or commerce, it is 61. During the Diplomatic Conference, stress was laid not sufficient that an agreement conferring juris on the difference between the Brussels and Lugano diction be in a form which accords with practices Conventions as regards agreements conferring ju (or a usage) in such trade or commerce of which risdiction with respect to contracts of employment, the parties are or ought to have been aware. It is and a number of problems were highlighted. The moreover required that the usage shall be, on the example given was that of an agreement conferring one hand, widely known in international trade or jurisdiction which, at the time, was concluded commerce and, on the other, regularly observed by between parties domiciled in the territory of two parties to contracts of the type involved in the States which had ratified the Brussels Convention. particular trade or commerce concerned. Under that Convention, prorogation of jurisdiction by agreement may, as regards a contract of employ ment, be effected before the dispute arises. In particular, having regard to the words 'interna- tionale Handelsbrauche' and 'usages' which are used in the German and French versions of Article What happens if, at a later stage, one of the parties 17 of the Brussels Convention, it seems that there transfers his domicile to an EFTA Member State? are at least no major differences in substance What would be the attitude either of the court in a between the provisions concerned in the two Con Community Member State to which a dispute is ventions. In order to ensure a uniform interpreta referred on the basis of that agreement conferring tion it was, however, felt by the EFTA States that jurisdiction, or of a court in an EFTA Member the present wording of paragraph 1 (c) was neces State to which a dispute is referred despite the sary in the Lugano Convention. agreement?
The question was left open and, although the solu tions adopted by the Brussels and the Lugano Con 59. Article 17 of the Brussels Convention has given rise ventions are not without their merits, might possi to a considerable number of judgments by the bly be resolved in the Convention on the accession No. C 189/78 Official Journal of the European Communities 28. 7. 90
of Spain and Portugal to the Brussels Convention the service abroad of judicial and extra-judicial by aligning the Brussels Convention on the Lugano documents in civil or commercial matters since, at Convention. 1 June 1988, the sole exceptions are Austria, Ire land, Iceland and Switzerland.
(b) Article 18 — Submission to jurisdiction Section 8
62. Discrepancies have been noted between the var ious versions of the Brussels Convention. A num Lis pendens— related actions (Articles 21 to 23) ber of versions, for example the English and the German ones, provide that the rule whereby the court of the Contracting State has jurisdiction does 64. Article 21 not apply where appearance was entered 'solely' to contest the jurisdiction, which restriction is not Only this Article has been amended in Section 8. included in the French text. Article 21 of the Brussels Convention provides that However, no amendment was made to the various in case of a lis alibi pendens, any court other than texts in view of a judgment given by the Court of the court first seised must of its own motion Justice to the effect that Article 18 applies under decline jurisdiction in favour of that court and may certain conditions where the defendant contests the stay its proceedings if the jurisdiction of the other court's jurisdiction and also makes submissions on court is contested. the substance of the action (judgment of 24 June 1981 in Elefanten Schuh v. Jacqmain, see Chapter The representatives of the EFTA Member States VI). thought this solution was too radical.
They observed that an action often had to be Section 7 brought in order to comply with a time limit or stop further time from running, and that opinions dif fered as to whether a time limit had been complied with where an action had been brought before a Examination as to jurisdiction and admissibility court lacking jurisdiction internationally. (Articles 19 and 20) Thus, in their view, if an action was brought before a judge who would have had jurisdiction, but was 63. Although these Articles correspond to Articles 19 not the first to be seised, that judge would of his and 20 of the Brussels Convention, Article 20 own motion have to decline jurisdiction in favour requires some comment, given that it is a particu of the court first seised. However, that court might larly important provision where the defendant fails perhaps decide that it did not have jurisdiction. In to enter an appearance (see Jenard report, page 39). that case, both actions would have been dismissed with the result that the time limits might have run A judge required to apply the Lugano Convention out and the action be time barred. must declare of his own motion that he has no jur isdiction unless his jurisdiction is derived from the These remarks have been taken into consideration. provisions of Sections 2 to 6 of Title II of that Con vention. For example, a French judge before whom Article 21 has been amended so that the court other a person domiciled in Norway is required to than the court first seised will of its own motion appear on the basis of Article 14 of the Code Civil stay its proceedings until the jurisdiction of the (jurisdiction derived from the French nationality of other court has been established. the applicant) must declare of his own motion that he has no jurisdiction if the defendant fails to enter A court other than the one first seised will not an appearance. decline jurisdiction in favour of the court first seised until the jurisdiction of the latter has been Likewise, the judge must declare of his own motion established (see Schlosser report, paragraph 176). that he has no jurisdiction unless his jurisdiction is derived from the provisions of an international The Court of Justice has ruled that the term lis pen convention governing jurisdiction in particular dens used in Article 21 covers a case where a party matters, as stipulated in Article 57 (2). In this con brings an action before a court in a Contracting nection reference should be made to the comments State for a declaration that an international sales on Article 57. contract is inoperative or for the termination there of whilst an action by the other party to secure per It should be noted that almost all the Community formance of the said contract is pending before a and EFTA Member States are currently parties to court in another Contracting State (judgment of the Hague Convention of 15 November 1965 on 8 December 1987 in Gubisch v. Palumbo). ^790 Official journal of the European communities ^o.oel^B79
Sections tracting State and enforceable in that State shall be enforced in another contracting State when, on the 6eo. B^^c^^ — ^r^^^,^c^^^r^^c^^,^^^ application of any interested party,theorderfor its enforcement has been issued there.SinceUnited kingdom law does not have the exequatur system As this provision has not been amended, reference for foreign^udgments,paragraph^of this Article should be made to the Menard report, page^and provides that sucha^judgment shall be enforced in LheSchlosser report, paragraph 18^. England and^Vales,in Scotland,orin northern Ireland where, on the application of any interested party,it has been registeredfor enforcement in that part of theUnited kingdom ^seeSchlosser report, paragraphs ^08^^gp ^ECO^^ITIC^^A^OE^^O^C^E^E^T
^Articles^to^
Sectionl
^ec^^it^^^Anicles^6to^0^ 69. In Switzerland, a distinction must be drawn between judgments ordering the payment ofasum 66. Article ^7^^ refers only to cases where the ^udg^ of money and those ordering performance other mentrecognitionofwhich is requested isirrecon^ than thepayment of money. The enforcement of cilable in the State addressed with an earlier ^udg^ judgments ordering the payment of a sum of mentgivenina ^^^^^r^c^^ State and recog^ money is governed by Articles 69^^^. of the fed ni^able in the State addressed. eral law on suitfor bankruptcy debts ^LP^. Articles 80 and 81 L^require, for the purposes ofenforce The case of a judgment given in a C^^cn^ ment,theproductionof an enforceable^udgment ^^^ which isirreconcilablewithanearlier^udg inacivil case. In thecaseof foreign^udgments, ment given in another Contracting State and recog^ involving an orderfor payment of money,an order nizable in the State addressed is not specifically for its enforcement is necessary only if the^udg dealt with, nor is it covered in the Brussels Convene ment was given inaState which has not concluded don. It was felt that such cases would be extremely a treaty on recognition and enforcement with exceptional giventhe mechanisms provided for in Switzerland. If suchatreatye^ists,aforeign^udg Title 11 and in particular Articles ^land^witha ment involving anorder for payment ofmoney is view to avoiding contradictory decisions. Should enforceable in the same way asaSwiss judgment. suchacase, however, arise it would be for the court The only objections which can be raised are those inthe State addressed to apply its rules ofproceD provided for intheconventioninquestion^third dure and thegeneralprinciplesarisingoutofthe paragraph of Article81L^. convention and to refuse to recognise and enforce the^udgment given after the first nidgment had been recognised. It might, indeed, be argued that, since it has already beenrecogni^edinthe State addressed, the first^udgment shouldproduce the same effects there as a judgment given by the A foreign judgment ordering performance other courts in that Stare, the situation covered byArticle than the payment of money is enforced under can tonal law,evenifthereisatreaty withthe State concerned. In general, the cantonal rules governing orders for enforcement arethen applicable, ^ith the convention in mind, Switzerland declared that it intends to continue to grant the preferential treat 67. Two grounds for refusal havebeen added. They ment it gives to^udgmentsinvolvinganorder for concern the cases provided in Articles ^Band^ payment of money. reference should be made to the comments on those Articles.
Sections The wording party agreed that the wording of Article^l^of the Brussels convention had been ^forcen^ttBArticles^lto^ chosen to comply with the legal system of the ori ginalsi^ member States of the European C^ommu^ nities and acl^nowledgedthatthis wordingcould createproblemsfor States withdifferent enforce 68. Under the first paragraph of this Article in the ment procedures than those existing in these Sm Brussels Convention,5A judgment given inaC^on States. Thereforeandinorder total^e account,in No. C 189/80 Official Journal of the European Communities 28. 7. 90
particular, of the Swiss position the words 'the The conditions are as follows: order for its enforcement has been issued' in the first paragraph of Article 31 of the Brussels Con — the authenticity of the instrument should have vention have been replaced in the Lugano Conven been established by a public authority, tion by the words 'it has been declared enforce able'. — this authenticity should relate to the content of the instrument and not only, for example, the signature, (b) Articles 32 to 45 — the instrument has to be enforceable in itself in the State in which it originates. 70. The formal adjustments to Articles 32 to 45 relate exclusively to the courts having jurisdiction and Thus, for example, settlements occurring outside possible types of appeal against their decisions. courts which are known in Danish law and enforceable under that law (udenretlig forlig) do For applications for a declaration of enforceability not fall under Article 50. of judgments only one court has been given juris diction in Iceland and in Sweden. In Sweden, this Likewise, commercial bills and cheques are not is due to the practice according to which the 'Svea covered by Article 50. hovratt' is competent to declare enforceable foreign judgments and arbitral awards. As in Article 31 (see point 69), the phrase 'have an order for its enforcement issued there' has been If the judgment debtor wishes to argue against the replaced by the words 'be declared enforceable'. authorization of enforcement, he must lodge his application to set the enforcement order aside not It should be noted that the application of Article 50 with the higher court, as in most other Contracting of the Brussels Convention appears to be relatively States, but as in Austria, Belgium, Ireland, Italy, uncommon. the Netherlands and the United Kingdom, with the same court as declared the judgment enforceable. The proceedings will take the form of an ordinary contentious civil action. This applies also regarding TITLE V the appeal which the applicant may lodge if his application is refused. GENERAL PROVISIONS
Section 3 Article 52 — Domicile
Common provisions (Articles 46 to 48) 73. The third paragraph of Article 52 of the Brussels Convention relates to persons whose domicile depends on that of another person or on the seat of 71. Since no amendments have been made to the prov an authority. isions of this section, reference should be made to the Jenard report (pp. 54 to 56) and the Schlosser It adopts a common rule of conflicts based on the report (paragraph 225). personal status of the person making the applica tion, in the case in point, the national law of the person. TITLE IV The EFTA Member States challenged this rule, particularly in view of the developments regarding AUTHENTIC INSTRUMENTS AND COURT the domicile of married women that have taken SETTLEMENTS place since the 1968 Convention was drawn up. (Articles 50 and 51) It was decided to delete the third paragraph. Article 50 — Authentic instruments It follows that in order to determine whether the defendant is a minor or legally incapacitated, the 72. The representatives of the EFTA Member States judge will apply the law specified by the conflicts were able to agree to the text of Article 50, rules applied in his country. although the concept of an authentic instrument is contained only in Austria's legislation. In the affirmative case, either the first paragraph or the second paragraph of Article 52, depending on However, they did request that the report should the case, will be applied to determine the legal specify the conditions which had to be fulfilled by domicile. Thus, to determine whether a minor is an authentic instrument in order to be regarded as domiciled in the territory of the State whose courts authentic within the meaning of Article 50 (see are seised of a matter, the judge will apply his Schlosser report, paragraph 226). internal law. 28. 7. 90 Official Journal of the European Communities No. C 189/81
When the minor is domiciled in the territory of the Conventions between Community Member States State whose courts are seised of the matter, the have not been included since they are already cov judge will, in order to determine whether the minor ered by Article 55 of the Brussels Convention and, is domiciled in another Contracting State, apply where Spain and Portugal are concerned, will be the law of that State. covered by the Conventions on Accession to the Brussels Convention.
TITLE VI 78. Article 56 has not been amended. TRANSITIONAL PROVISIONS (Articles 54 and 54a)
(a) Article 54— Temporal application (c) Article 57 (Conventions in relation to particular matters)
14. The adjustments made to this Article are only tech nical ones, given that the procedures for entry into force of the two Conventions are not identical, but 79. It may be said that the problem of conflicts of law, that no substantive changes have been made (see together with the problem of conflicts of jurisdic Jenard report, pp. 57 and 58 and Schlosser report, tion, are the chief concern of private international paragraphs 228 to 235). law.
However, the problem of conflicts of convention (b) Article 54a (Maritime claims) also requires attention, since nowadays, with so many international organizations drawing up inter 75. Article 54a corresponds to Article 36 of the 1978 national conventions, the number which deal Accession Convention (see Schlosser report, para directly or indirectly with the same subject is consi graphs 121 et seq.). derable. As for solving the problem, several sys tems could perfectly well be contemplated under Paragraph 5 of this Article defines the expression international law. Some are based on the principle 'maritime claim'. A maritime claim, according to specialia generalibus derogant, others on the rule of this definition, is inter alia a claim arising out of antecedence. Lastly, yet others advocate taking the dock charges and dues (point (1)). The German effectiveness criterion into consideration. For version of this Convention as well as of the Brus example, where a judgment is to be recognized and sels Convention uses the word 'Hafenabgaben' for enforced, the conventions which exist might be dock charges and dues. This should however not considered and the one selected which, translating mislead anybody into thinking that port charges, the aim sought by the authors of the conventions, dues or tolls or similar public fees are regarded as gives the party to whom judgment has been dock charges or dues for the purposes of this delivered in one country the best possibility of get Article. ting it recognized and enforced in another.
As noted by Professor Schlosser in his report (para TITLE VII graphs 238 to 246), this question was dealt with at length during the negotiations on the 1978 Acces RELATIONSHIP TO THE BRUSSELS CONVEN sion Convention. TION AND OTHER CONVENTIONS The solution was enshrined in Article 25 of that (a) Article 54b (Relationship to the Brussels Conven Convention. tion)
76. Reference should be made to the comments in 80. The problem was taken up again during negotia Chapter II. tion of the Lugano Convention. The same basic principle has been adopted in both Conventions: namely, that the Convention will not affect any (b) Articles 55 and 56 (Conventions concerning the conventions to which the Contracting States are or EFTA Member States) will be parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments (6). 11. Article 55 lists conventions concluded between the EFTA Member States and conventions concluded between EFTA Member States and Community The arrangements adopted are set out in Article 57. Member States (see Annex II). They may be examined on two levels: firstly, the No.C 189/82 Official Journal of the European Communities 28. 7. 90
level of jurisdiction, and secondly, that of recogni examine whether he does indeed have jurisdiction tion and enforcement. under the special convention and whether the defendant has been sued properly, and in sufficient time to enable him to arrange his defence.
81. Regarding jurisdiction, the two Conventions, i.e. the 1968 Convention as amended by the 1978 Con vention, and the Lugano Convention, both contain similar provisions. 82. Regarding recognition and enforcement, the arrangements in the Brussels Convention (as adjusted on this point by the 1978 Convention) and Article 57 (2) of the Lugano Convention, like the Lugano Convention are not the same. Unlike Article 25 (2) of the 1978 Accession Convention, the Brussels Convention, the Lugano Convention provides that the Convention will not prevent a provides that recognition or enforcement may be court of a Contracting State which is party to a refused if the State addressed is not a contracting convention relating to a particular matter from party to the special convention and if the person assuming jurisdiction in accordance with that con against whom recognition or enforcement is sought vention, even where the defendant is domiciled in is domiciled in that State. a State party to the Lugano Convention, but not to the convention on the particular matter. The reason for this difference is that the Brussels In this respect, Article 57 provides another excep Convention applies between Member States of the tion to Article 2, which lays down the principle that same Community, while the Lugano Convention is the defendant must be sued in the courts of his not based on a similar principle. domicile. The EFTA Member States therefore requested that Take the following example: the courts of the State addressed should be able to refuse recognition or enforcement if the person against whom they were sought was domiciled in The International Convention for the unification that State, on the grounds that such a guarantee of certain rules relating to international carriage by should be granted the defendant, particularly for air, signed at Warsaw on 12 October 1929, has not fear that the special convention might contain been ratified by Luxembourg. The carrier is domi grounds for jurisdiction considered as exorbitant ciled in Luxembourg, but the Warsaw Convention by the State addressed in accordance with the law provides that the court with jurisdiction is that of of that State. the place of 'destination' (a court not adopted as such by the Lugano Convention, nor, for that mat ter, by the Brussels Convention). It must be emphasized that this ground for refusal is an exception, given that paragraph 3 establishes Article 57 enables the applicant to sue the Luxem the principle of recognition and enforcement. It bourg carrier in the court of a State party to the does not therefore apply automatically, but is left Lugano Convention and to the Warsaw Conven to the discretion of the judge in the State addressed tion, since that court is allowed under that Conven under the law of that State. tion. It goes without saying that a judgment delivered in Exactly the same arrangement is adopted in the an EFTA Member State on the basis of a rule of Brussels Convention. It is the special convention jurisdiction provided for in a special convention which prevails, in the interests, as stated by Profes might be refused recognition or enforcement, under sor Schlosser in his report on the 1978 Convention the same terms, in a Community Member State. (paragraph 240 (b)), of 'simplicity and clarity of the legal position' and, let us add, so as not to fail to recognize the rights that nationals of third States might hold under the special convention. 83. In the opinion of the rapporteurs, although the However, the court seised will have to apply question is not expressly dealt with in the text of Article 20 of the Lugano Convention in order to Article 57, if a court in a Contracting State having ensure respect for the rights of the defence. jurisdiction under a special convention is seised first, the rules on lis pendens and related actions in Articles 21 and 22 are applicable. Hence, for ins In the case in point, if the defendant fails to enter tance, in the case of lis pendens, the courts of an appearance, the judge must of his own motion another Contracting State would, even though that 28. 7. 90 Official Journal of the European Communities No. C 189/83
State was not party to the special convention, have either signature and ratification (Article 61) or to stay their proceedings of their own motion if accession (Article 62). seised subsequently. The jurisdiction of the court first seised is recognized by the Lugano Conven The following may in any case become parties to tion through the conjunction of Articles 21 and 57, the Convention: with the latter recognizing the jurisdiction of the court first seised on the basis of a special conven 1. States which, at the date of the opening of the tion. Convention for signature, are members either of the European Communites or of EFTA; 84. For the purposes of the Lugano Convention, Com munity acts are to be treated in the same way as 2. States which, after that date, become members special conventions. Reference should be made of one or other of the two organizations. In here to the comments on Protocol 3. view of the origins of the Convention, this solution was virtually self-evident since neither of the two organizations could remain fixed in TITLE VIII time;
FINAL PROVISIONS 3. third States. This was undoubtedly the most (Articles 60 to 68) delicate question. There are, in addition to Member States of the two organizations, States which share the same fundamental conceptions (a) Introductory remarks even though they are not European. As we shall see in the comments on Article 62, provi 85. Although final provisions are usually fairly stan sion has been made for fairly strict conditions dard, those in the present Convention are some for the accession of such States to the Conven what different and therefore require quite detailed tion. In brief, although the Convention reflects comment. This is a Convention which first and a desire for openess, its approach is clearly a foremost requires the Contracting States to have cautious one. extremely similar thinking on constitutional and economic matters (see Chapter 1.2, point 3). More over, the Convention was negotiated between (c) Article 61 — Signature, ratification and entry States all of which belong to European organiza into force tions, either the European Communities or EFTA. The drafters of the Convention had to deal with several questions. The first was the general one of 87. According to Article 61, the Lugano Convention deciding which States could become parties to the shall be opened for signature by those States which Convention. Other more specific questions were: were members of one or other of the two organiza tions on the date — 16 September 1988 — on What was the position of those States which, after which it was opened for signature. the opening of the Convention for signature, became members either of the European Commu This was agreed because it was at the diplomatic nities or EFTA? conference that the final text was drawn up and adopted by the persons empowered to do so by What was the position of third States, i.e. countries their States. which did not belong to either of these two organi zations but wished to become parties to the Con vention? On that date, the Convention was signed by 10 States: for the Community Member States: Bel What was the territorial application of the Conven gium, Denmark, Greece, Italy, Luxembourg and tion? Portugal, and for the EFTA Member States: Ice land, Norway, Sweden and Switzerland. The Con What, finally, was the position if one of the territo vention was subsequently signed by Finland on ries for whose international relations a Contracting 30 November 1988 and by the Netherlands on State was responsible were to become indepen 7 February 1989. dent? Each of these questions was examined in detail The Convention may be signed at any subsequent and a series of solutions was found (7). time by the other six States (Federal Republic of Germany, Spain, France, Ireland and the United Kingdom on the one hand and Austria on the (b) Article 60 — States which may become parties to other). the Convention
86. Article 60 deals with this question, while Articles 61 88. Pursuant to Article 61 (3), the Convention shall and 62 define the relevant procedures involving enter into force when it has been ratified by one No. C 189/84 Official Journal of the European Communities 28. 7. 90
Community Member State and one Member State no say in the accession of new States to the other of EFTA. organization and, for reasons of its own, might feel it cannot have ties with that new State which are as Since this is a multilateral Convention, such a close as those created by the Lugano Convention. method of entry into force might seem somewhat This is a safeguard clause which also applies to surprising. third States.
The intention was deliberately to speed up entry into force of the Lugano Convention. For persons domiciled in a Member State of EFTA, the Con 2. Third States vention offers a number of guarantees when they are sued in the courts of a Community Member State. Thus, for example, Article 4 of the Brussels Convention will cease to apply to such persons. Moreover, persons domiciled in a Community 90. A cautious attitude to such States is reflected in Member State will not be able to be sued in the specific conditions. courts of a Member State of EFTA on the basis of exorbitant rules of jurisdiction. Firstly, their wish to accede to the Lugano Conven tion must be 'sponsored' by a Contracting State, Furthermore, ratification procedures can be quite i.e. a State which has either ratified the Convention slow and this would delay the entry into force of a or acceded to it, which will inform the depositary multilateral Convention where a certain number of State of the third State's intention. ratifications are required.
Examples of this are the 1968 Convention, which Secondly, the third State will have to inform the only entered into force in 1973, and the 1978 depositary State of the contents of any declarations Accession Convention, which only entered into it intends to make in order to apply the Convention force between the six original Member States and and of any details it would like to furnish in order Denmark on 1 October 1986, the United Kingdom to apply Protocol No 1, and the depositary State will then communicate that information to the on 1 January 1987 and Ireland on 1 June 1988. The other signatory States and States which have Convention on the accession of Greece of 25 Octo acceded. Negotiations may be held on this subject: ber 1982 entered into force on 1 April 1989 with they may not, in any circumstances, call into ques regard to Belgium, Denmark, the Federal Republic tion the provisions of the Lugano Convention of Germany, Greece, France, Ireland, Italy, Lux itself. The device envisaged therefore differs from embourg and the Netherlands and on 1 October that in Article 63 of the Brussels Convention, 1989 with regard to the United Kingdom. which stipulates that a new Member State of the European Economic Community may ask for In brief, it is sufficient therefore for one Com 'necessary adjustments' to be the subject of a munity Member State and one EFTA Member special convention. This procedure, which was fol State to ratify the Lugano Convention in order to lowed notably when drawing up the 1978 Acces bring it into force between those two States as from sion Convention, is not therefore applicable in the the first day of the third month following the present case. deposit of the second instrument of ratification.
Thirdly, the States referred to in Article 60 (a) and (b) must, when they have thus been informed of the (d) Articles 62 and 63 — Accession declarations and details envisaged by the State applying for accession, decide unanimously whether that State should be invited to accede. 1. New Member States The States referred to in Article 60 (a) and (b) are either those States which were members of one or 89. Those States which, after the opening of the Con other of the two organizations on the date on vention for signature, become members of either which the Convention was opened for signature, the Communities or EFTA may accede to the Con i.e. 16 September 1988, or States which became vention. members of one or other of the two organizations after that date. The agreement of any third States Under Article 62 (4), a Contracting State may, how which have acceded to the Convention is not there ever, consider that it is not bound by such an acces fore required. This was agreed because the Conven sion. tion is essentially a Convention between Com munity and EFTA Member States and conse This clause was adopted in view of the fact that a quently it did not seem advisable to give a third Member State of one of the two organizations has State which has become a party to the Convention 28790 Official journal ofthe European Communities ^oC189B85
the right to veto the accession of another third — the entire territory of the Kingdom of Spain, Srate. — the entire territory ofthe Portuguese republic, fourthly, once the decision has been taken to look — inthe case of f^rance^ all territories which are attheaor^licationofathird State, negotiations can an integral part of the French republic (see he started,eitber at that Stated requestor at the Article71 ^^^. of the Constitutions includ request of other States concerned, regarding the ing therefore the French Overseas Departments details it intends to furnish for the purposes of ^ro^ (Guadeloupe, Martinique, duiana, Keunion^, tocol^ol. the OverseasLerritories (Polynesia, l^ewCale donia,Southernand AntarticTerritories^and finally, it should he noted that alast safeguard the individual territorial collectivities (Saint clauseallows any Contracting State(nursuantto Pierre and lviiquelon,lvtayotte^ naragranh^to refuse anrolicationof the Conven tion in its relations with athird State which has acceded to the Convention.Lhissystem,which is 95. Hie situationisslightlydifferent where Denmark based on various Conventions drawnuo pursuant and the Netherlands are concerned. toLher^ague Conference on Rrivatelnternational Law,takesaccounrofthe(oossihlyoolnical^proh Denmark^ lems which might arise between a Contracting State andathird Srate. ^Vithaview to ratitication of the Lugano Conven tion, Denmark made known its wish to reserve the right to e^tendthe scope of the Conventionata te^ ^r^^^^c^n^ later stage to the ^aroe Islands and Greenland which arepart of the kingdom of Denmarkbut en^oyautonomyintheirinternalaffairs(Law^o 137 of23 starch 19^8 forther^aroe Islands and ^o 91 Article 60 ofthe 1968 Convention and Article 27 of 577 of 29 November 1978 for dreenland^ and the 1978 Convention deal with the territorial appli which must be consulted on draft laws affecting cation of those Conventions, limiting it to the their territories. In the light of the outcome of such r^uroneanterritoryof the Contracting States, suh^ consultations,Denmarkwill be able to state, ina ^ect to clearly defined e^ceotions. declaration to be addressed at any time to the depositary State,what the situation is with respect to the application of the Convention to these terrP 92. In the negotiations leading up to the Lugano Con tories. vendon it was found that application of the ConD vention to non^uropean territories forming an integral nart of the national territory of Contracting The^etherlands^ States orforwhose international relations the latter assume responsibility needed to be envisaged ona Sincelianuaryl986, the kingdom of the aether broader basis.Anumber of these territories are fre lands consists of three countries, namelymhe^eth quently important financial centres having close erlands, the Netherlands Antilles (the islands of relations with Contracting States. C^iven the speed Bonaire,Curacao,Sintlviaarten (Netherlands part withwhich means ofcommunication are develon of the islands Sintf^ustatius and Saba^ and Aruba ing, assets couldbe transferred to suchterritories, following the necessary consultations, the^lether and if the Convention could not be applied to lands, ^ustlikeDenmarkinthe case of the l^aroe them, this would create a situation which would Islands anddreenland,willbeabletostatein a defeat the desired aim, since judgments given ina declaration which may be addressed at any time to State which was party to the Convention could not the depositary State,what the situation is with res beenforcedin suchterritoriesunder these nrovi pectto the application of the Convention to the sions. Netherlands Antilles and to Aruba.
96. Ontheotherhand,other Contracting States(the 93. It was agreed at the diplomatic conference that it United kingdom and Portugal in the case of wouldbe better if, like many other international Iviacao andTimorLeste^ compriseentities which conventions,the Convention contained no nrovi are separate from the metropolitan territory.lnter sion on territorial application. Phe limitation to national agreements cannot be concluded on ^uropeanterritorieslaiddowninprincipleinthe behalf oftheseentitiesotherthanby the United 1968 and 1978 Conventions is thus not included in kingdom and Portugal. the Lugano Convention. United t^ingdonm 9^. however, it was clear from the negotiations that in the absence of any specific clause the Lugano Con During the negotiations, the United kingdom, like ventionaonlies automatically to^ the other States,providedafulllist of non^uro No. C 189/86 Official Journal of the European Communities 28. 7. 90
pean territories for whose international relations it Portugal: is responsible (8). For the European territories, see Schlosser report, paragraph 252. The question of extending the Convention to Macao and Timor-Leste has not yet been settled.
This list of non- European territories is included in (0 Territories which become independent the acts of the diplomatic conference. The United Kingdom also gave an indication of the territories 97. The question of what would happen regarding to which it might consider making the Convention application of the Lugano Convention to territories actually apply. It was agreed that provision of such gaining independence was also considered. information did not imply any binding obligation The Convention contains no provisions on this that other extensions could not be made, but the subject. Such a clause is not usual in international information provided was intended to assist the Conventions. On the other hand, this is a familiar other States in assessing the practical consequences problem in public international law and it is gener for them of an extension of the application of the ally accepted that, if a country gains independence, Convention. any Contracting State is free to decide whether or not it is bound by the Convention in question in respect of the new State and vice versa (on this point, see Schlosser report, paragraph 254). For this purpose, the United Kingdom indicated that, of its non-European territories, Anguilla, Ber In any event, a State which has become indepen muda, British Virgin Islands, Montserrat, Turks dent may, if it wishes to become a party to the and Caicos Islands and Hong Kong were ones to Lugano Convention, make use of the accession which there might be a real prospect of the Con procedure provided for third States in Article 62 of vention being extended. the Lugano Convention (see point 90).
CHAPTER IV
PROTOCOLS
98. Under Article 65, the three supplementary Proto isions were, however, redundant in the Lugano cols form an integral part of the Convention. Convention. The other provisions of the Protocol annexed to the Brussels Convention are reprod uced in this Protocol with minor amendments most of which are due to the law in force in var PROTOCOL 1 ON CERTAIN QUESTIONS OF ious EFTA Member States. Furthermore, the Pro JURISDICTION, PROCEDURE AND tocol contains two Articles (la and lb) which have ENFORCEMENT no equivalent in the Protocol annexed to the Brussels Convention. 1. Introductory remarks
99. This Protocol corresponds to the Protocol 2. Article la — Swiss reservation annexed to the Brussels Convention. The provi sions contained in Articles I, II, III and Vd of that Protocol are reproduced unmodified in Pro tocol 1 to the Lugano Convention. The provisions 100. This Article contains a reservation asked for by contained in Article Vc of the Protocol annexed Switzerland. It provides that Switzerland may to the Brussels Convention are not reproduced in declare, at the time of depositing its instrument of this Protocol. Those provisions were inserted into ratification, that a judgment given in another the Protocol annexed to the Brussels Convention Contracting State shall neither be recognized nor only to make it clear that the concept of 'resid enforced in Switzerland if the jurisdiction of the ence' in the English text of the Convention for the court which has given the judgment is based only European patent for the common market, signed on Article 5(1) (place of performance of contract) at Luxembourg on 15 December 1975, should be of the Lugano Convention and if certain other deemed to have the same scope as the concept of conditions are met. As this head of jurisdiction is 'domicile' in the Brussels Convention. Such prov- regarded by many States as the most commer- 2^.7.^0 Official journal of the European communities ^oC^l^BD7
cially significant ofall the special bases of ^urisD dant to waive the protection available under dictioninthe Lugano C^onvention,thetermsof Article^of the constitution and that this waiver this part of protocol ^o 1 were the subject of could validly be made at any time. Hius this close discussion. waiver canbe made even before Switzerland has made any declaration.This is reflectedin the te^t of the Article by the words^the declaration^^ I^orSwitzerlandtheneedforareservationarose ^^ under this paragraph. It will therefore be from the provisions of Article ^ of the Swiss possible for persons contracting with persons federal oeonstitution^ which reserves theright en^oyingSwissdomiciletostipulatea waiverof for a person of Swiss domicile, whatever his theprotectionprovidedforin Article eo^ ofthe nationality, to be sued over a contract in the Swiss federal constitution which would others courts of his domicile, whilst some exceptions wise be available. An agreement between the par existed to thisgeneralprinciple, it became clear ties on the waiver of such protection could be thataprovisionsuchasArticle^^l^oftheC^on made orally or in writing as long as there is suffi vention could involveaconflict with the constitu cient proof that the waiver has been made. In the tional rule in Switzerland and make Swiss partici event that such an agreement has been made, or if pation in the Convention impossible. Lhe com the Swiss court is otherwise satisfied asamatter promisereached limits theeffect of thereserva of fact that the defendant has waived his rights, don ro the minimum necessary. then recognition and enforcement will not be refused in Switzerlandeven if areservation has been made.
101. In the tirst place, any reservation will only apply ^ourthly,thereservation will not apply to con if the defendant was domiciled in Switzerland at tracts in respect of which, at the time recognition the time ofthe introduction ofthe proceedings. In and enforcement is sougheaderogation has been the application of the reservation the question of granted from Article^of the Swiss federal C^on domicile will be determined and acknowledged in stitution. Hie Swiss government is obliged to accordancewiththegeneralprinciples and rules communicate such derogations to the signatory of the convention.I^owever,acompany or other States and the acceding States. legal person is considered to be domiciled in Switzerlandonly if ithasitsregisteredseatand the effective centre of activities in Switzerland. f^ifthly,the Swiss delegation has declared thata Lhe reservation will thus not apply if the effective reservation envisaged in this Article will not centre of activities of a company or other legal apply to contracts ofemployment.ThusSwitzer person is outside Switzerland even if the com land will in no event refuse the recognition or panyor other legalperson has its registered seat enforcement of a judgment given in a matter in Switzerland. Iairthermore,the reservation will relatingto an individual contract ofemployment never apply unlessthecompanyor legalperson on theground thatthe nirisdiction ofthe court concerned has its registered seat in Switzerland. whichhasgiven the^udgmentisbased only on the second pan of Article^td^of the Convention.
Secondly,recognition and enforcement may only be refused under the reservation if the jurisdiction finally, any declaration made by Switzerland ofthe court which hasgiven the^udgment was under this Article is to empire onafi^ed date, i.e. based solely on Articled td^ If,fore^ample,a on^ll^ecemberl^. If, by that time, the Swiss defendant domiciled inSwitzerland were to sub federal constitution has not been amended so as mit to the^urisdiction in the other Contracting to remove the constitutional difficulty, one possi State the reservation would not apply, because in bility would be for Switzerland to consider de that event jurisdiction would not have been based nouncing the convention, and becomeaparty to solely on Article ^ r^, but also on Article 1^. it again when the constitutional difficulty has Lqually, the reservationwill not apply if the ^ur been removed. isdiction of the original court is based on an agreement to confer ^urisdictionovercontractual disputes, since in that case jurisdiction would have been derived from Articled. 102. If Switzerland makes the reservation provided for in this Article it will be open to other Contracting Thirdly, the reservationwill not apply unless the States to reciprocate the effect of that reservation defendant raises anob^ection to derecognition by refusing to entbrce^udgments originating in and enforcement of the judgment in Switzerland. Switzerland if the jurisdiction of the Swiss court is The objection must be raised in good t^aith. It was based solely on Article ^ td^ ofthe convention explained by the Swiss delegation that it was and if conditions corresponding to those men entirely possibleunder Swiss law forthedefen tioned in Article la ofthe protocol are fulfilled. No. C 189/88 Official Journal of the European Communities 28. 7. 90
By reason of the difference in constitutional sys 4. Article IV — Judicial and extra-judicial docu tems, a reciprocity clause was not inserted in the ments Protocol. The result is that the matter of reciproc ity will be left to the normal rules of public inter national law. In view of the fact that such rules may be incorporated differently into national law, solutions to the question of reciprocity may vary from country to country. 104. This Article reproduces Article IV of the Protocol annexed to the Brussels Convention. The declara tion referred to in paragraph 2 of this Article will, In countries applying the 'dualist' system the however, not be made to the Secretary-General of question of reciprocity will be dealt with at a leg the Council of the European Communities but to islative level, thus settling the question of reci the depositary of the Lugano Convention. procity in a general manner. In those countries where the 'monist' system exists it is for the courts or other authorities to decide on the question of reciprocity. For instance in France, where the 'monist' system exists, a treaty, according to the French constitution, has a higher level than law provided that the treaty is applied in a reciprocal 5. Article V — Actions on a warranty or guaran manner. If the question of whether a treaty is tee applied in a reciprocal manner is raised before a court and the answer is not clear, the judge will submit the question to the Ministry of Foreign Affairs which is competent for the interpretation of treaties.
105. Under Austrian, Spanish and Swiss law, as under German law, the function performed by an action As far as the aspect of application of Article 7 of on a warranty or guarantee or any other third the Treaty establishing the European Economic party proceedings is fulfilled by means of third- Community is concerned (non-discrimination on party notices. A rule analogous to that contained grounds of nationality), the judge in a Com in Article V of the Protocol annexed to the Brus munity Member State can, if the question arises sels Convention (see Jenard report, page 27, com before him, submit it to the Court of Justice of the ments on Article 6 (2)) has accordingly been European Communities for a preliminary ruling applied to Austria, Spain and Switzerland in this under Article 177 of the EEC Treaty. Article. Unlike the case of Austria, the Federal Republic of Germany and Spain, it has not been possible to refer to a single legislative source in From the discussions it is apparent that certain Swiss law. Provisions on third-party notices are to States will not reciprocate. be found both in the federal law of civil proce dure and in the 26 cantonal codes of civil proce dure.
3. Article lb — Reservation on tenancies Third party intervention in proceedings is not governed by explicit rules in the Spanish legal system and the want of proper procedures is the source of procedural uncertainty. This legal hiatus has been severely citicized in the works of legal experts, who have recommended that it be reme 103. This Article provides that any Contracting State died in the near future. However, this has not may, by a declaration made at the time of signing prevented acceptance of third party proceedings or deposit of its instrument of ratification or in some fields of jurisprudence or in civil laws accession, reserve the right not to recognize and governing certain specific cases, e.g. Article 124 enforce judgments given in other Contracting (3) of Law No 11 of 20 March 1986 on patents States if the jurisdiction of the court of origin is and Article 1482 (*) of the Civil Code, regarding based, pursuant to Article 16 (1) (b), exclusively eviction. Generally speaking, it is the latter rule on the domicile of the defendant in the State of which is applicable in cases of non-voluntary origin. third party proceedings; in the negotiations between the Member States of the European Communities and those of the European Free This provision has been commented on above Trade Association, it was therefore judged advisa (see point 53). ble to include it in Article V of Protocol No 1. 28. 7. 90 Official Journal of the European Communities No. C 189/89
Article 1482 is referred to, albeit indirectly, in PROTOCOL 2 ON THE UNIFORM Article 638 (gift), 1145 (joint and several obliga INTERPRETATION OF THE CONVENTION tions), 1529 (assignment of claims), 1540 (exchange), 1553 (tenancy), 1681 (obligations of partners), 1830 (surety), 1831 (co-surety), etc. of the Civil Code. 1. Introductory remarks
6. Article Va — Jurisdiction of administrative authorities 110. Without uniform interpretation, the unifying force of the Lugano Convention would be considerably reduced. In addition, a considerable number, if 106. In Iceland and Norway administrative authorities not the majority, of its provisions are reproduced are, as in Denmark, competent in matters relating from the Brussels Convention, which posed a fur to maintenance. Thus Iceland and Norway have ther problem. As we know, in order to avoid such been included in this Article in addition to Den differences of interpretation, the Community mark. Member States concluded a Protocol on 3 June 1971 giving jurisdiction to the Court of Justice of the European Communities to rule on the inter 107. In Finland, for historical reasons the 'ulosoton- pretation of the Brussels Convention. When haltija/overexekutor' (regional chief enforcement applying that Convention, the courts of the Com authority) is competent for protective measures munity Member States must comply with the referred to in Article 24 of the Lugano Conven interpretation given by the Court of Justice. tion. Furthermore, a documentary procedure for collecting debts based on a promissory note or a similar document, as well as some other summary However, the Court of Justice could not be proceedings e.g. eviction, take place before that assigned jurisdiction to interpret the Lugano Con authority. These proceedings are an optional vention which is not a source of Community law. alternative to court proceedings. The 'ulosoton- Furthermore, the EFTA Member States could not haltija/overexekutor' is clearly not a court but an have accepted a solution according to which an administrative authority, which in the aforemen institution of the Communities would, as a court tioned cases plays a judicial role. The abolition of of last resort, rule on the Lugano Convention. the 'ulosotonhaltija/overexekutor' is envisaged Nor was it conceivable to assign such jurisdiction and its functions as far as civil and commercial to any other international court or to create a new matters are concerned will be transferred to the court since, inter alia, the Court of Justice of the courts. European Communities already had jurisdiction under the 1971 Protocol to rule on the interpreta In order to avoid any imbalance a second para tion of the Brussels Convention and conflicts of graph has been inserted in this Article according jurisdiction between international courts had at to which the expression 'court' in civil and com all events to be avoided. mercial matters includes the Finnish 'ulosoton haltija/overexekutor'.
111. The solution adopted to resolve this comewhat 7. Article Vb — Dispute between the master and complex situation (i.e. ensuring uniform interpre a member of a ship's crew tation of the Lugano Convention while taking account of the powers of the Court of Justice of the European Communities as regards the inter 108. Following specific requests from the Icelandic, pretation of the Brussels Convention, many of the Norwegian, Portuguese and Swedish delegations, provisions of which were reproduced in the Iceland, Norway, Portugal and Sweden have been Lugano Convention) is based on the principle of included in this Article. consultation and not on judicial hierarchy.
8. Article VI — Amendment of national legisla It was thus agreed that judgments delivered pur tion suant to the Lugano Convention or the Brussels Convention are to be communicated through a central body to each signatory State and acceding 109. This Article reproduces Article VI of the Protocol State and that meetings of representatives annexed to the Brussels Convention. The com appointed by each such State are to be convened munication provided for in this Article will, how to exchange views on the functioning of the Con ever, not be made to the Secretary-General of the vention. As regards legal technique, it was Council of the European Communities but to the decided that the provisions aiming at uniform depositary of the Lugano Convention. interpretation should be included in a Protocol No. C 189/90 Official Journal of the European Communities 28. 7. 90
annexed to the Convention, the provisions of that the courts of each Contracting Party shall, which would form an integral part thereof. It was when applying and interpreting that Convention, furthermore agreed that two Declarations would pay due account to the principles laid down by be annexed to the Protocol. One of these Declara any relevant decision delivered by courts of the tions was to be signed by the representatives of other Contracting Parties concerning provisions the Governments of the States signatories to the of the Lugano Convention. The expression 'any Lugano Convention which were members of the relevant decision' means in this Article those European Communities and the other by the decisions delivered by courts of the Contracting representatives of the Governments of the States Parties which according to Article 2 (1), first signatories to the Lugano Convention which were indent, have been transmitted to a central body, members of EFTA. i.e. judgments delivered by courts of last instance and other judgments of particular importance which have become final. 2. Preamble
112. The first recital in the preamble makes reference to Article 65 of the Lugano Convention. Accord ing to this Article, a Protocol 2 on the uniform 114. This Article does not explicitly refer to decisions interpretation of the Convention by the courts concerning the application and interpretation of will form an integral part of the Convention. those provisions of the Brussels Convention which are substantially reproduced in the Lugano The second recital refers to the substantial link Convention. between the Lugano Convention and the Brussels Convention. It must be remembered that the courts of the As has already been mentioned, the Court of Jus Community Member States are the only courts tice of the European Communities has, under the required to apply the Brussels Convention and Protocol of 3 June 1971, been entrusted with jur that when they interpret provisions of that Con isdiction to give rulings on the interpretation of vention, they must respect the judgments of the the provisions of the Brussels Convention. A Court of Justice. The Community Member States starting point for the negotiations for the conclu were, however, not in a position to commit the sion of the Lugano Convention was that those Court of Justice, a separate institution, to pay due provisions of the Brussels Convention which were regard to judgments of national courts in EFTA to be substantially reproduced in the Lugano Member States. For their part, the representatives Convention should be understood in the light of of the EFTA Member States thought that it would these rulings given up to the date of opening for not be entirely fair to include a provision in the signature of the latter Convention. The working Protocol which expressly stipulated that the party which drafted the Convention was aware of courts of these States had to take account not all those rulings delivered up to that date. The only of the decisions given by the courts of the intention was to arrive at as uniform as possible other Contracting States but also of the judg an interpretation where the provisions in question ments of the Court of Justice of the European were identical in the two Conventions. On the Communities, while the latter would not be sub other hand, insofar as a provision of the Brussels ject to any undertaking as regards the interpreta Convention as interpreted by the Court of Justice tion of the provisions of the Brussels Convention of the European Communities, e.g. Article 16 (1), which were reproduced in the Lugano Conven was found not to be acceptable, it was not reprod tion. uced unmodified in the Convention (for judg ments of the Court of Justice, see Chapter VI).
The third, fourth and fifth recitals were included in the Preamble in order to stress the relevance of 115. It was, however, recognized that the courts of the the rulings on the interpretation of the Brussels Community Member States, when interpreting Convention given by the Court of Justice of the provisions of the Lugano Convention which are European Communities up to the time of the sig reproduced from the Brussels Convention, would nature of the Lugano Convention. understand those provisions in the same way as the identical provisions of the Brussels Conven The sixth recital confirms the wish of the Con tion and in accordance with the interpretations tracting States to prevent, in full deference to the given in the rulings of the Court of Justice of the independence of the courts, divergent interpreta European Communities. It was therefore essen tions. tial, in order to ensure as uniform an interpreta tion as possible of the Lugano Convention, that the courts of the EFTA Member States apply it in 3. Article 1 the same way as the courts of the Community Member States. But it was equally necessary for 113. This Article relates only to decisions concerning the Court of Justice, when interpreting provisions provisions of the Lugano Convention. It provides of the Brussels Convention which were repro- 28. 7. 90 Official Journal of the European Communities No. C 189/91
duced in the Lugano Convention to pay due drawing up and publication of translations account in particular to the case law of the courts and abstracts, of the EFT A Member States. — communication by the central body of the rel evant documents to the competent national 116. In order to achieve this twofold objective two authorities of all signatories and acceding Declarations accompany the Convention. In one States to the Lugano Convention and to the of them the representatives of the Governments of Commission of the European Communities. the States signatories to the Lugano Convention which are members of the Communities declare that they consider as appropriate that the Court of The abovementioned central body will, according Justice, when interpreting the Brussels Conven to paragraph 2 of this Article, be the Registrar of tion, pay due account to the rulings contained in the Court of Justice of the European Communi the case law of the Lugano Convention. In the ties. The Registrar has signified his agreement to other, the representatives of the EFTA States this, provided that the detailed arrangements for declare that they consider as appropriate that the system of exchange of information, and in their courts, when interpreting the Lugano Con particular the question of the translation of judg vention, pay due account to the rulings contained ments not drawn up in an official language of the in the case law of the Court of Justice of the Communities, are worked out with the Court after European Communities and of the courts of the the Diplomatic Conference and that the depart Member States of the European Communities in ment of the Court receive the necessary aid and respect of provisions of the Brussels Convention budgetary support. The competent national auth which are substantially reproduced in the Lugano orities referred to in the first and third indent of Convention. paragraph 1 of this Article are to be designated by each Member State concerned.
At the request of the representatives of the EFTA States, a list and the contents of the judgments This system of exchange of information will, delivered by the Court of Justice when interpret however, not include every judgment delivered by ing the 1968 Convention is given in this report a national court pursuant to the Lugano Conven (see Chapter VI). tion or every relevant judgment delivered pur suant to the Brussels Convention. For the pur poses of the objective which the Protocol is aim ing at it will suffice that judgments delivered by courts of last instance and the Court of Justice as 4. Article 2 well as judgments of other courts which are of particular importance and have become final are transmitted to the central body referred to in this Article (paragraph 1 first indent). Only those 117. As we have already said, it was agreed that a uni judgments will thus be classified by the central form interpretation of the common provisions of body and communicated pursuant to the third the Lugano and Brussels Conventions would be indent of paragraph 1 of this Article. achieved by means of information and consul tation. According to the first paragraph of this Article the Contracting States agree to set up a To the extent that the communication of docu system of exchange of information concerning mentation implies publication of translations and judgments delivered pursuant to the Lugano Con abstracts by the central body, it was agreed that vention as well as relevant judgments under the such publication, in the interests of economy, Brussels Convention. The expression 'relevant could take a simplified form. judgments' means, in this context, those judg ments delivered pursuant to the Brussels Conven tion which are relevant for the interpretation of the Lugano Convention as well. 5. Article 3 This system of exchange of information com prises : 118. In order to ensure a uniform interpretation of the — transmission to a central body by the compe common provisions of the Lugano and Brussels tent national authorities of judgments Conventions, it was deemed necessary that repre delivered pursuant to the Lugano Convention sentatives appointed by each signatory or acced or the Brussels Convention, ing State meet to exchange views on the function ing of the Lugano Convention. To this end — classification of these judgments by the cen Article 3 provides that a Standing Committe com tral body including, as far as necessary, the posed of representatives appointed by each signa- No. C 189/92 Official Journal of the European Communities 28. 7. 90
tory or acceding State shall be set up. This Stand to it, even though the Committee, according to ing Committee is not intended to be a bureau Article 3 (2), will be composed of representatives cratic body but rather a forum where national appointed by each signatory State or acceding experts could exchange their views on the func State. The task of convening the Committee has tioning of the Convention and in particular on been entrusted to the depositary of the Conven the case law as it develops in the various Con tion. tracting States, with the aim of fostering in that manner, as far as possible, uniformity in the inter pretation of the Convention. No regular meetings There are no limitations as to the questions relat of the Committee are provided for in the Proto ing to the functioning of the Convention which col. Meetings of the Committee will, according to oblige the depositary to convene meetings of the Article 4 (1) of the Protocol, be convened only at Committee at the request of a Contracting Party. the request of a Contracting Party.
In this context it deserves to be emphasized that In view of the purpose of the Protocol, Article 4 not only States which have already become par provides that meetings of the Committee will be ties to the Convention (either by ratifying it or by convened for the purpose of exchanging views in acceding to it), but also States which have signed particular on the development of the case law as the Convention but not yet become parties to it communicated under the first indent of Article 2 may appoint their representatives as members of (1). The purpose of this provision is not, however, the Standing Committee. This solution was to invest the Committee with the role of a higher adopted since a distinction between signatory and body which would assess the judgments given by Contracting States would suggest that certain national courts. It is rather a body, which, by States might sign the Lugano Convention without examining such judgments, would identify div any intention of ratifying it. ergences of interpretation and, as far as possible, foster uniformity in the interpretation of the Con Divergent views were expressed as to whether the vention. Standing Committee should be composed of judges or civil servants. It was decided that it would be for each State to appoint its representa Article 57 (1) of the Convention provides that it tives on the Committee. Thus, it may well be that will not affect any conventions to which the Con certain States will appoint judges whereas other tracting States are or will be parties and which, in States may appoint civil servants or others. It goes relation to particular matters, govern jurisdiction without saying that each State is free to decide or the recognition or enforcement of judgments. how and for which period of time anyone is According to Protocol No 3, provisions which appointed to represent it on the Committee. govern jurisdiction or the recognition or enforce ment of judgments and which are or will be con tained in acts of the institutions of the European Because of the links between the Lugano Con Communities will be treated in the same way as vention and the Brussels Convention, paragraph 3 conventions referred to in Article 57 (1). of this Article provides that representatives of the European Communities (i.e. of the Commission, the Court of Justice and the General Secretariat of the Council) and of EFTA may attend the meet Provisions which in relation to particular matters ings of the Committee as observers. govern jurisdiction may, irrespective of whether such provisions are contained in a convention or in a Community act, amount to a change of the If necessary, it will be for the Committee to estab rules of jurisdiction contained in the Convention lish its own rules of procedure. without the agreement of all the Contracting Par ties. Therefore paragraph 1 of this Article further provides that meetings of the Committee will be convened for exchanging views on the applica 6. Article 4 tion of Article 57 of the Convention. Paragraph 2 of Protocol No 3 on Community acts makes prov ision for a similar procedure. Thus the Committee 119. The provisions of paragraph 1 of this Article con will provide a forum where views can be cern the convocation and the tasks of the Stand exchanged inter alia on the provisions governing ing Committee. As already mentioned, the meet jurisdiction in particular matters adopted or ings of the Committee will be convened at the envisaged in Community acts. request of a Contracting Party for the purpose of exchanging views on the functioning of the Con vention. In this context it deserves to be emphas In the light of these exchanges of views it may ized that a meeting of the Committee cannot be appear that an amendment of the Convention convened at the request of a State which has only would be appropriate. This may be the case if the signed the Convention but not yet become a party Committee, when examining the case law com- 28. 7. 90 Official Journal of the European Communities No. C 189/93
municated under Article 2, were to identify div — the need to comply with the obligations ergences of interpretation arising from a lack of they have entered into by becoming party clarity in one or more of the provisions of the to the Treaties establishing the Communi Convention. Therefore, paragraph 2 of the Article ties, provides that the Committee may also examine the appropriateness of starting on particular to pics a revision of the Convention and make recommendations. — the need to avoid hampering any development taking place in the context This power of the Committee should not be con of the Treaties and relating to the powers fused with the right for any Contracting State of the Community institutions, under Article 66 of the Convention to request the revision of the Convention. The powers and pro cedures in that Article differ radically from those provided for in Article 4 (2) of the Protocol. A — the need to respect the commitments recommendation made by the Committee is thus entered into by the Lugano Convention not to be assimilated with a request by a Con vis-d-vis the EFTA Member States. tracting State under Article 67 of the Convention for a revision conference. Only a Contracting State but not the Committee may request the depositary of the Convention to convene a revi (b) For the EFTA Member States, because they sion conference. Neither is a recommendation of feared that the guarantees offered them by the the Committee a prerequisite for the right of a Lugano Convention regarding jurisdiction Contracting State to request the revision of the and the recognition and enforcement of judg Convention. ments could, in certain areas, be practically wiped out by a Community act. In particular, the representatives of the EFTA Member States voiced the fear that the protection PROTOCOL 3 ON THE APPLICATION OF guaranteed by the Lugano Convention, parti ARTICLE 57 cularly by Article 3, to defendants domiciled in an EFTA Member State might be under mined by a Community act. Such defendants 120. This Protocol is in response to the problems might thus be treated differently from defen which might arise from any provisions on juris dants domiciled in a Community Member diction and the recognition and enforcement of State, or even be put in the same situation as defendants domiciled in third States. For judgments appearing in Community acts. example, for the representatives of these States it was inconceivable to accept that it should be possible for a person domiciled in 1. Concern of the States party to the Lugano the territory of an EFTA Member State (e.g. Convention Norway) to be required to appear before the courts of a Member State of the Communities (such as France) on the basis of a Community 121. The entirely justified concern of both Community act which they had played no part in drawing and EFTA Member States has been vigorously up and on the basis of a criterion of jurisdic expressed in regard to Community acts. Why is tion not provided for in the Lugano Conven this? tion. In any event, for these States, it was unacceptable that it should be possible for a (a) For the Community Member States, it is judgment delivered on the basis of such a rule because they have, in a manner of speaking, a of jurisdiction to be recognized and enforced dual personality. They are sovereign States. in their territory under the Lugano Conven But they are also members of the Communi tion. These fears would seem to be as well- ties and are thus bound, by virtue of this lat founded as those of the Member States of the ter point, to comply with the obligations to Communities. which they have subscribed under the Trea ties establishing the European Communities (ECSC, EEC and Euratom). Under those Treaties, it is the Council which is competent In short, for the EFTA Member States, the to adopt Regulations and Directives which in inclusion of rules of jurisdiction and of recog specific matters may possibly concern juris nition and enforcement of judgments in diction and the recognition and enforcement Community acts could, in the absence of any of judgments, according to the requirements correcting mechanism, be regarded as of those Communities (10). empowering the Community Member States to amend the Lugano Convention unilater The concern of these States was threefold: ally. No. C 189/94 Official Journal of the European Communities 28. 7. 90
2. Response to this concern What is involved in this solution that has given satisfaction to both sides?
122. The question for the authors of the Convention Protocol 3 and the Declaration supplementing it was how to respond to these various concerns, all form a whole. equally justified, and to work out a solution that could be accepted by all the Contracting Parties. We shall try and answer two questions, the prob lem having been resolved: Why was it possible to solve the problem? How was it solved? (a) Protocol 3
It was possible to respond to this concern because there existed on both sides a conviction or, one might prefer to say, a deep awareness that despite 124. In paragraph 1, for the purposes of the Lugano its difficulties the problem posed could and had Convention, Protocol No 3 treats Community to be resolved, in accordance with the principles acts in the same way as the conventions which of public international law, because of the funda have been concluded on particular matters and mental objectives of the Lugano Convention, i.e. whose effect on the Lugano Convention is deter the granting of guarantees to a defendant domi mined by Article 57 of the Convention (see points ciled in the territory of a Contracting State and 79 to 83). In the view of the representatives of the the free movement of judgments. Community Member States, there is no differ ence, except as regards the way they were drawn up, between these two types of instrument. In addition, it emerged during the discussions that despite its theoretical aspect the problem had only a very relative impact in practice; thus the They pointed out that if the EFTA Member States Member States of the Communities stressed the were willing to entertain the possibility for the fact that in 30 years no Community act contain States party to the Lugano Convention of the ing provisions on jurisdiction had been adopted. rules of that Convention being amended by con It should however be noted that a draft Regula ventions concluded in particular areas (transport, tion on the Community trade mark containing etc.) they could also agree to the Community such jurisdiction rules is currently in preparation. amending the Convention by means of Com munity acts. These representatives also stressed that to be approved a Community act required in Also, some Community Member States made it principle the agreement of the 12 Member States, clear that for practical reasons they were not in whereas a convention on a particular matter, favour of Community acts including provisions whose rules could depart from those of the relating to jurisdiction and to the recognition and Lugano Convention, could be concluded between enforcement of judgments. For these States, the two States only. In their view, there was accord issue had to be settled by the Brussels Conven ingly no substantive difference between the two tion, even if that meant its being revised, types of instrument: conventions on particular amended or supplemented, since for the practi matters and Community acts. tioner (lawyers, judges, and others) this Conven tion constituted a Community code which was becoming well known. If these provisions were The representatives of the EFTA Member States scattered throughout numerous Community were able to accept this view only for the pur instruments it would weaken the scope of this poses of this Convention and in conjunction with code and make it more difficult to apply. These paragraph 2 of Protocol 3 and the Declaration States were well aware of the importance that supplementing it (see point 127 below). They also Community acts might have in this matter and said that their States had no wish to obstruct the they considered that any resort to these instru Communities' proper and specific demands that ments, in the areas in question, should continue they preserve a certain freedom to develop Com to be entirely exceptional. munity law.
3. Solution adopted 125. What are the consequences of paragraph 1 of Pro tocol 3 which, for the purposes of this Conven tion, treats Community acts in the same way as conventions concluded on particular matters? 123. How was the problem resolved?
The solution is to be found in Protocol 3 and in It will be possible for a person domiciled in the the Declaration by the Member States of the territory of a Contracting State (such as Switzer Communities which supplements it. land) to be summoned to appear in the territory 28. 7. 90 Official Journal of the European Communities No. C 189/95
of another Contracting State belonging to the domiciled outside the Community and therefore European Communities (such as Belgium) on the in an EFTA Member State. basis of a rule of jurisdiction which is not laid down in the Lugano Convention but results from Paragraph 2 has the effect of a pactum de nego- a Community act (just like a convention on a tiando. If one of the Contracting Parties considers particular matter). there is incompatibility between the Community act and the Lugano Convention, negotiations will be initiated to amend, if necessary, the Lugano A judgment handed down by a court in a Com Convention. To this end the review procedure munity Member State — which has jurisdiction provided for in Article 66 of the Lugano Conven by virtue of the Community act which derogates, tion will apply without prejudice to the possibility as regards jurisdiction, from the Lugano Conven of a meeting of the Standing Committee set up by tion — will be recognized and enforced in the Article 3 of Protocol 2 being convened to hear other Community Member States. However, this request in accordance with Article 4 of that recognition and enforcement may be refused Protocol. under the conditions laid down in Article 57 (4), i.e. in an EFTA Member State where the person against whom recognition or enforcement of the Negotiations will have to begin immediately to decision is being sought is domiciled, unless such establish rapidly whether or not there is any need recognition and enforcement are permitted under to amend the Lugano Convention. Paragraph 2 the law of the State. contains only an undertaking to contemplate an amendment rather than actually to amend the Convention. It should be noted that paragraph 1 of the Proto col refers only to Community acts and not to the Moreover, paragraph 2 of Protocol 3 does not legislation of the Community Member States contain any undertaking, nor could it, to contem where this has been harmonized pursuant to those plate an amendment to a Community act. Such acts, in this case by Directives. The assimilation negotiations would lie outside relations between of Community acts to conventions concluded on the States party to the Convention and should be particular matters can only refer to an act which is undertaken with the Community institutions, as equivalent to such a convention and cannot there Community acts fall within the competence of the fore extend to national legislation. latter.
It should be noted that the procedure laid down Moreover, if a national legislation, departing in paragraph 2 could be instigated equally well by from a Directive, were to introduce rules of juris a Community Member State or by an EFTA diction derogating from the Lugano Convention, Member State. An EFTA Member State will be the situation would be different, i.e. it would be a able in particular to request the amendment of the question of the responsibility of the State which Lugano Convention to avoid derogating measures had taken such measures. being taken through a Community act in respect of persons domiciled in its territory. On the other hand, a Community Member State could have an As explained above, the representatives of the interest in adapting the Lugano Convention so EFTA Member States were able to agree to Com that judgments delivered in its territory can be munity acts being treated in the same way as con recognized and executed in all EFTA Member ventions concluded on particular matters only States, to which Article 57 (4) might prove an subject to a Declaration by the Community Mem obstacle. ber States that they will comply with the rules on jurisdiction and recognition and enforcement of judgments established by the Lugano Convention (for comments on that Declaration, see point 127 (b) The Declaration by the Governments of the below). Member States of the Communities
127. Protocol 3 is accompanied by an important Dec 126. Paragraph 2 of Protocol 3 refers to the case where, laration by the Community Member States. This notwithstanding the precautions taken, in the unilateral Declaration represents an essential ele view of one of the Contracting Parties, a provi ment of the solution adopted, the other two being sion of a Community act is not compatible with the placing of Community acts on the same foot the Lugano Convention. For example, this is the ing as conventions on particular matters and the situation that might arise if the Community act undertaking to negotiate if there is any divergence provided for the jurisdiction of the court of the between a Community act and the Lugano Con plaintiffs domicile vis-a-vis a defendant who was vention. No. C 189/96 Official Journal of the European Communities 28790
As wehavee^plained^the Community member defendantdomiciledin aContractingState. States are caught between two stools. COn the one Theresult isthat whenaCommunity act is hand^ they have to respect the institutional machi discussed in the Council of the Communities^ nery laid down by theTreaties establishing the particular attention will haveto bepaid by Communities while onthe other they must res^ each of the member States to the rules of the pect the undertakings they entered into under the Lugano Convention. Lugano Convention in respect of the f^TA member states. To sum up^ the declaration represents a moral and political undertakings made in good faith by the Community member ^tates^ to keep intact the The iOeclaradonisimportantbecausetheCom^ efforts towards unificationwhich are being made munity member ^tates^ without forgetting that by the Lugano Convention. they belong to the Communities and with due res pectfor its institutions^
(a) tal^e into consideration the undertakings whichtheyhaveenteredinto with regard to 128. The questions raised by Community acts were the r^^TA Ivtember states. P^or those states amongst the most difficult with which the drafters the Lugano Convention is therefore an instru^ ofthe Lugano Convention had to deal.Asolution ment to be complied with. C^n their side there was reached thanks to the constructive will of the is therefore what was regarded as a ^best representatives of all the states concerned. This efforts^ clause aimed at avoiding as far as compromise solution appears to us to allay the possible any divergence between the provi concern shown on both sides. To summarized it sions of Community acts and those of the may be said to beathreeDstorey edifices Lugano Conventions (a) it places Community acts on the same footing as conventions on particular matters^ which (b) indicate their concern notto^eopardize the corresponds to the wishes of the Community unity ofthelegal system establishedby the member ^tates^ Lugano Convention. This is an obvious con cern if we consider that theLuganoConven (b) the Community member states have givena tion^ through rules based firmly on theBrus unilateral undertaking to make every effort to sels Conventions intended to guarantee the ensure that the unity of the legal system free movement of^udgments among the great established by theLugano Convention is not majority of^est European ^tatesm.e.includ put in ^eopardy^ which satisfies the LPTA ing judgments deliveredby the courts ofthe member ^tates^ member states of the Communities^ (c) as a correctives there is the undertaking to seek a negotiated solution in the case of a (c) the Community Ivlember states consequently divergence betweenaCommunity act and the underta^when drafting Community acts^ to PuganoConvention. Aswehavestated^this tal^e all the steps in their power to ensure that satisfies both sides. the rules contained in the Lugano Conven tion are complied with^ particularly as regards The compromise thus appears to be perfectly bal the protection which the Convention givesa anced.
CHAPTER V
DECLARATIONS ANNEXED TO THE CONVENTION
129. The Lugano Convention is supplemented by three Declarations. The first concerns Protocol 3 which relates to Community acts (see points 120 to 128) and the two others Protocol 2 on the uniform interpretation of the Convention (see points 110 to 119). 90 Official Journal of the European Communities No. C 189/97
CHAPTER VI
JUDGMENTS OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNI TIES CONCERNING THE INTERPRETATION OF THE BRUSSELS CONVENTION OF 27 SEPTEMBER 1968
1. General eto and the 1971 Protocol which have been inter preted, since this seems a more convenient arrangement. 130. The Protocol of 3 June 1971 confers on the Court of Justice of the European Communities jurisdic This Chapter gives only the operative part of the tion to rule on the interpretation of the Brussels decision and not, barring exceptions, the grounds. Convention. For it is not the purpose of this report to study the judgments of the Court of Justice but merely to Article 30 of the Accession Convention of 9 Octo indicate how it has interpreted a number of Arti ber 1978 (Denmark, Ireland, United Kingdom) cles. provides that the Court of Justice also has juris diction to rule on the interpretation of that Con 2. Content of the judgments ('') vention. Article 10 of the Convention of 25 Octo ber 1982 on the accession of Greece contains a 131. (1) Application of the Convention similar provision. National procedural laws are set aside in the mat As at 1 June 1988 the six original Member States ters governed by the Convention in favour of the of the Communities together with Denmark, Ire provisions thereof (judgment of 13 November land and the United Kingdom are parties to the 1979 in Case 25/79 Sanicentral v. Collin (1979) Protocol. ECR 3423-3431).
On the scope of the Protocol, reference should be (2) Article 1, first paragraph: Civil and commercial made to the Jenard report (pp. 66 to 70) and the matters Schlosser report (paragraphs 255 and 256). 1. The Court held that the concept of civil and It should be noted, however, that the Protocol commercial matters must be regarded as autono makes provision for two forms of reference: refer mous. It ruled that a judgment given in an action ence for a preliminary ruling and reference in the between a public authority and a person governed interests of the law. The latter possibility has not by private law, in which the public authority has so far been used. Reference for a preliminary rul acted 'in the exercise of its powers', is excluded ing means that a national court required to rule from the area of application of the Convention on a question of interpretation of the Convention (judgment of 14 October 1976 in Case 29/76 LTU or the Protocol refers the matter to the Court of v. Eurocontrol (1976) ECR 1541-1552). Justice and stays its proceedings, pending the lat- ter's decision. 2. It confirmed its decision in its judgment of 16 December 1980 in Case 814/79 Netherlands Since the Protocol came into force on 1 Septem State v. Ruffer to the effect that the concept of ber 1975, nearly 60 judgments have been handed civil and commercial matters does not include the down by the Court (see point 3 below) and a recovery of the costs incurred by the agent res number of case are currently pending (see point 4 ponsible for administering public waterways, in below). this instance the Netherlands State, in the remo val of a wreck pursuant to an international Con As stated in the comments on Protocol 2 (see vention ((1980) ECR 3807-3822). points 112 and 116), in the negotiations on the Lugano Convention it was agreed that the provi 3. Contracts of employment come within the sions of the Brussels Convention should be con scope of the Convention (judgment of 13 Novem strued as interpreted by the Court of Justice and ber 1979 in Case 25/79 Sanicentral v. Collin that the report would mention the various judg (1979) ECR 3423-3431). ments handed down by the Court. (3) Article 1, second paragraph This Chapter meets the latter stipulation. (1) (a) Status of persons The judgments are given not in chronological order but by reference to those Articles of the 1. Judicial decisions authorizing provisional Brussels Convention, the Protocol annexed ther measures in the course of proceedings for divorce No. C 189/98 Official Journal of the European Communities 28. 7. 90
do not fall within the scope of the Convention 'if 1967, ordering the de facto manager of a legal those measures concern or are closely connected person to pay a certain sum into the assets of a with either questions of the status of the persons company must be considered as given in the con involved in the divorce proceedings or proprie text of bankruptcy or analogous proceedings tory legal relations resulting directly from the Gudgment of 22 February 1979 in Case 133/78 matrimonial relationship or the dissolution there Gourdain v. Nadler (1979) ECR 733-746). of (judgment of 27 March 1979 in Case 143/78 J. De Cavel v. L. De Cavel (1979) ECR 1055-1068).
2. However, the Convention is applicable, on (4) Article 5 (1): Contractual matters the one hand, to the enforcement of an interlocu tory order made by a French court in divorce pro ceedings whereby one of the parties to the pro ceedings is awarded a monthly maintenance 1. The place of performance of the obligation in allowance and, on the other hand, to an interim question is to be determined in accordance with compensation payment, payable monthly, the law which governs the obligations in question awarded to one of the parties by a French divorce according to the rules of conflict of laws of the judgment pursuant to Article 270 et seq. of the court before which the matter is brought Gudg French Civil Code. ment of 6 October 1978 in Case 12/76 Tessili v. Dunlop (1976) ECR 1473-1487). The Court held that the scope of the Convention extends to maintenance obligations and that the 2. If the place of performance of a contractual treatment of an ancillary claim is not necessarily obligation has been specified by the parties in a linked to that of the principal claim. clause which is valid according to the national law applicable to the contract, the court for that Ancillary claims come within the scope of the place has jurisdiction to take cognizance of dis Convention according to the subject matter with putes relating to that obligation under Article 5 which they are concerned and not according to (1), irrespective of whether the formal conditions the subject matter involved in the principal claim provided for under Article 17 have been observed (judgment of 6 March 1980 in Case 120/79 L. De Gudgment of 17 January 1980 in Case 56/79 Zel- Cavel v. J. De Cavel (1980) ECR 731). ger v. Salinitri (1980) ECR 89-98).
3. The word 'obligation' contained in Article 5 (b) Matrimonial relationships (1) refers to the contractual obligation forming the basis of the legal proceedings, namely the obliga tion of the grantor in the case of an exclusive 1. The term 'rights in property arising out of a sales contract Gudgment of 6 October 1976 in matrimonial relationship' includes not only pro Case 14/76 De Bloos v. Bouyer). perty arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any proprietory relation 4. The plaintiff may invoke the jurisdiction of ships resulting directly from the matrimonial rela the courts of the place of performance in accord tionship or the dissolution thereof (judgment of ance with Article 5 (1) of the Convention even 27 March 1979 in Case 143/78 J. De Cavel v. L. when the existence of the contract is in dispute De Cavel (1979) ECR 1055-1068). between the parties Gudgment of 4 March 1982 in Case 38/81 Effer v. Kantner (1982) ECR 825- 836). 2. An application for provisional measures to secure the delivery up of a document in order to prevent it from being used as evidence in an ac 5. The obligation to be taken into account for tion concerning a husband's management of his the purposes of the application of Article 5 (1) of wife's property does not fall within the scope of the Convention in the case of claims based on the Convention if such management is closely different obligations arising under a contract of connected with the proprietary relationship result employment as a representative binding a worker ing directly from the marriage bond (judgment of to an undertaking is the obligation which charac 31 March 1982 in Case 25/81 C. H. W. v. G. J. H. terizes the contract, i.e. that of the place where the (1982) ECR 1189-1205). work is carried out Gudgment of 26 May 1982 in Case 133/82 Ivenel v. Schwab (1982) ECR 1891- 1902). (2) Bankruptcy 6. The concept of matters relating to a contract is an autonomous concept. Obligations in regard A decision such as that of a French civil court to the payment of a sum of money which have based on Article 99 of the French Law of 13 July their basis in the relationship existing between an 28. 7. 90 Official Journal of the European Communities No. C 189/99
association and its members by virtue of member ance (judgment of 8 March 1988 in Case ship are 'matters relating to a contract', whether 9/87 Arcado v. Haviland, OJ No C 89, the obligations in question arise simply from the 6. 4. 1988, p. 9). act of becoming a member or from decisions made by organs of the association (judgment of 22 March 1983 in Case 34/82 Peters v. Znav (1983) ECR 987-1004). (5) Article 5 (2): Maintenance
The subject of maintenance obligations falls 7. For the purpose of determining the place of within the scope of the Convention even if the performance within the meaning of Article 5 (1), claim in question is ancillary to divorce proceed the obligation to be taken into consideration in an ings (judgment of 6 March 1980 in Case 120/79 action for the recovery of fees, commenced by an L. De Cavel v. J. De Cavel (1980) ECR 731). architect commissioned to prepare plans for the building of houses, is the contractual obligation actually forming the basis of the legal proceed ings. (6) Article 5 (3): Tort or delict
In the case in point that obligation consists of a 1. The expression 'place where the harmful debt for a sum of money payable at the defend event occurred' must be understood as being ant's permanent address. intended to cover both the place where the dam age occurred and the place of the event giving rise to it. The place of payment is determined by the law applicable to the contract (judgment of 15 Janu The result is that the defendant may be sued, at ary 1987 in Case 266/85 Shenavai v. Kreischer, the option of the plaintiff, either in the courts for OJNoC39, 17.2. 1987, p. 3). the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage (judgment (a) On the question of whether a claim for of 30 November 1976 in Case 21/76 Bier, Rein- compensation for sudden and premature water v. Mines de potasse d'Alsace (1976) ECR termination of an agreement was a matter 1735-1748). relating to a contract or to quasi-delict, the Court of Justice replied that 'proceed 2. (a) The term 'tort, delict or quasi-delict' in ings relating to the wrongful repudiation Article 5 (3) of the Convention must be of an independent commercial agency regarded as an autonomous concept cov agreement and the payment of commis ering all actions which seek to establish sion due under such an agreement are the liability of a defendant and which are proceedings in matters relating to a con not related to a 'contract' within the tract within the meaning of Article 5(1) meaning of Article 5(1). of the Brussels Convention'. (b) A court which has jurisdiction under Article 5 (3) to entertain an action with (b) It repeated that matters relating to a con regard to tortious matters does not have tract should be regarded as an 'autono jurisdiction to entertain that action with mous' concept (judgment of 22 March regard to other matters not based on tort 1983 in Case 34/82 Peters v. Znav). (judgment of 27 September 1988 in Case 189/87 Kalfelis v. Schroder, OJ No C281,4. 11. 1988, p. 18). (c) Compensation for wrongful repudiation of an agreement is based on failure to comply with a contractual obligation. (7) Article 5 (5): Branch, agency or other establish ment
(d) Lastly, the Court referred to the Rome Convention of 19 June 1980 on the law 1. When the grantee of an exclusive sales con applicable to contractual obligations, cession is not subject either to the control or to which includes (Article 10) within the the direction of the grantor, he cannot be field of the law applicable to a contract regarded as being at the head of a branch, agency the consequences of total or partial non or other establishment of the grantor within the performance of the obligations arising meaning of Article 5 (5) (judgment of 6 October from it and hence the contractual liability 1976 in Case 14/76 De Bloos v. Bouyer (1976) of the party responsible for non-perform- ECR 1497-1511). No. C 189/100 Official Journal of the European Communities 28. 7. 90
2. The Court has given an autonomous interpre Contracting State does not operate any depend tation to the concepts of 'operations of a branch, ent branch, agency or other establishment in agency or other establishment': another Contracting State but nevertheless pur sues its activities there by means of an indepen dent undertaking which has the same name and (a) the concept of branch, agency or other estab identical management, which negotiates and con lishment implies a place of business which ducts business in its name and which it uses as an has the appearance of permanency, such as extension of itself (judgment of 9 December 1987 the extension of a parent body, has a manage in Case 218/86 Schotte v. Rotschild, OJ No C 2, ment and is materially equipped to negotiate 6. 1. 1988, p. 3). business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head (7a) Article 6 (1): Co-defendants office of which is abroad, do not have to deal directly with such parent body but may trans act business at the place of business constitut For the application of Article 6 (1) of the Conven ing the extension; tion there must exist between the various actions brought by the same plaintiff against different defendants a link such that it is expedient to (b) the concept of 'operations' comprises: determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (judgment of 27 September (1) actions relating to rights and contractual 1988 in Case 189/87 Kalfelis v. Schroder, OJ No or non-contractual obligations concern C281,4. 11. 1988, p. 18). ing the management properly so-called of the agency, branch or other establishment itself such as those concerning the situa (8) Article 13: Sale of goods on instalment credit tion of the building where such entity is terms and loans repayable by instalments established or the local engagement of staff to work there, The Court ruled in favour of an autonomous con cept of the sale of goods on instalment credit (2) actions relating to undertakings which terms albeit implicitly in that it is not to be under have been entered into at the abovemen- stood to extend to the sale of a machine which tioned place of business in the name of one company agrees to make to another company the parent body and which must be per on the basis of a price to be paid by way of bills formed in the Contracting State where the of exchange spread over a period. place of business is established, The jurisdictional advantage is to be restricted to buyers who are in need of protection (judgment (3) actions concerning non-contractual obli of 21 June 1978 in Case 150/77 Bertrand v. Ott gations arising from the activities in (1978) ECR 1431-1447). which the branch, agency or other estab lishment has engaged at the place in It should be noted that this Article was amended which it is established on behalf of the in the 1978 Convention in line with the judgment. parent body (judgment of 22 November 1978 in Case 33/78 Somafer v. Ferngas (1978) ECR 2183-2195). (9) Article 16 (1): Immovable property
3. An 'independent commercial agent', inas 1. The concept of 'matters relating to ... tenan much as he is free to arrange his own work and cies of immovable property' must not be inter the undertaking which he represents may not preted as including an agreement to rent under a prevent him from representing several firms at the usufructuary lease a retail business carried on in same time and he merely transmits orders to the immovable property rented from a third person parent undertaking without being involved in by the lessor. either their terms or their execution, does not have the character of a branch (judgment of 18 March Article 16 (1) must not be given a wider interpre 1981 in Case 139/80 Blanckaert & Willems v. tation than is required by its objective (judgment Trost (1981) ECR 819-830). of 14 December 1977 in Case 73/77 Sanders v. Van Der Putte).
4. Article 5 (5) must be interpreted as applying 2. Article 16(1) applies to all lettings of immov to a case in which a legal person established in a able property (judgment of 15 January 1985 in 28. 7. 90 Official Journal of the European Communities No. C 189/101
Case 241/83 Rosier v. Rottwinkel (1985) ECR Article 17 is fulfilled only if the contract 99-129). signed by both parties contains an express reference to those general condi This not uncontroversial judgment was not fol tions and lowed in the Lugano Convention (see points 50 and 51). Nor was it in line with the views of those who framed the 1968 Convention (see Jenard report, page 35 and Schlosser report, paragraph (b) in the case of a contract concluded by 164). reference to earlier offers, which were themselves made with reference to the general conditions of one of the parties 3. Article 16(1) must be interpreted as meaning including a clause conferring jurisdic that in a dispute as to the existence of a lease tion, the requirement of a writing under relating to immovable property situated in two the first paragraph of Article 17 is satis Contracting States (Belgium and the Netherlands fied only if the reference is express and in the case in point), exclusive jurisdiction over can therefore be checked by a party exer the property situated in each Contracting State is cising reasonable care (judgment of 14 held by the courts of that State (judgment of December 1976 in Case 24/76 Colzani v. 6 July 1988 in Case 158/87 Scherens v. Maenhout Ruwa (1976) ECR 1831-1843). and Van Poucke, OJ No C 211, 11. 8. 1988, p. 7).
(10) Article 16 (4): Patents 2. (a) In the case of an orally concluded con tract, the requirements of the first para graph of Article 17 as to form are satis See the judgment of 15 November 1983 in Case fied only if the vendor's confirmation in 288/82 Duijnstee v. Goderbauer (1983) ECR writing accompanied by notification of 3663-3679. the general conditions of sale has been accepted in writing by the purchaser and
(11) Article 16 (5): Applications to oppose enforce ment (b) the fact that the purchaser does not raise any objections against a confirmation issued unilaterally by the other party does not amount to acceptance on his Applications to oppose enforcement, as provided part of the clause conferring jurisdiction for under paragraph 767 of the German Code of unless the oral agreement comes within Civil Procedure, fall, as such, within the jurisdic the framework of a continuing trading tion provision contained in Article 16 (5) of the relationship between the parties which is Convention; that provision does not however based on the general conditions of one make it possible, in an application to oppose of them, and those conditions contain a enforcement made to the courts of the Contract clause conferring jurisdiction (judgment ing State in which enforcement is to take place, to of 14 December 1976 in Case 25/76 plead a set-off between the right whose enforce Segoura v. Bonakdarian (1976) ECR ment is being sought and a claim over which the 1851-1863). courts of that State would have no jurisdiction if it were raised independently.
The Court held that this amounts to a clear abuse 3. (a) The first paragraph of Article 17 cannot of the process on the part of the plaintiff for the be interpreted as prohibiting an agree purpose of obtaining indirectly from the German ment under which the two parties to a courts a decision regarding a claim over which contract for sale, who are domiciled in those courts have no jurisdiction under the Con different States, can be sued only in the vention (judgment of 4 July 1985 in Case 220/84 courts of their respective States and AS-Autoteile v. Malhe (1985) ECR 2267-2279).
(b) in the above case the Article cannot be (12) Article 17: Agreements conferring jurisdiction interpreted as prohibiting the court before which a dispute has been brought in pursuance of such a clause from tak 1. (a) Where a clause conferring jurisdiction is ing into account a set-off connected with included among the general conditions the legal relationship in dispute (judg of sale of one of the parties, printed on ment of 9 November 1978 in Case 23/78 the back of a contract, the requirement Meeth v. Glacetal (1978) ECR 2133- of a writing under the first paragraph of 2144). No. C 189/102 Official Journal of the European Communities 28. 7. 90
4. (a) National procedural laws are set aside in ditions, the shipper must have expressly the matters governed by the Convention accepted it in writing. The wording of the bill in favour of the provisions thereof and of lading signed by both parties must expressly refer to the general conditions. However, if the carrier and the shipper have (b) in judicial proceedings instituted after a continuing business relationship, which is the coming into force of the Convention, governed as a whole by the carrier's general clauses conferring jurisdiction included conditions, the clause conferring jurisdiction in contracts of employment concluded applies even without acceptance in writing; prior to that date must be considered valid even in cases in which they would have been regarded as void under the (b) the bill of lading issued by the carrier to the national law in force at the time when shipper may be regarded as an 'agreement' the contract was entered into (judgment 'evidenced in writing', within the meaning of of 13 November 1979 in Case 25/79 San- Article 17, vis-a-vis a third party holding the icentral v. Collin (1979) ECR 3423-3431). bill only if that third party is bound by an agreement with the carrier under the relevant national law and if the bill of lading, as 'evi 5. If the place of performance of a contractual dence in writing' of the 'agreement', satisfies obligation has been specified by the parties in a the formal conditions in Article 17 (judgment clause which is valid according to the national of 19 June 1984 in Case 71/83 Russ v. Nova, law applicable to the contract, the court for that Goeminne (1984) ECR 2417-2436). place has jurisdiction to take cognizance of dis putes relating to that obligation under Article 5 (1) of the Convention, irrespective of whether the formal conditions provided for under Article 17 9. The court of a Contracting State before which have been observed (judgment of 17 January 1980 the applicant, without raising any objection as to in Case 56/79 Zelger v. Salinitri (1980) ECR 89- the court's jurisdiction, enters an appearance in 98). proceedings relating to a claim for a set-off which is not based on the same contract or subject-mat ter as the claims in his application and in respect 6. Article 17 must be interpreted as meaning that of which there is a valid agreement conferring the legislation of a Contracting State may not exclusive jurisdiction on the courts of another allow the validity of an agreement conferring jur Contracting State within the meaning of Article isdiction to be called in question solely on the 17 has jurisdiction by virtue of Article 18 (judg ground that the language used is not that pre ment of 7 March 1985 in Case 48/84 Spitzley v. scribed by that legislation (judgment of 24 June Sommer (1985) ECR 787-800). 1981 in Case 150/81 Elefanten Schuh v. Jacqmain (1981) ECR 1671-1690). 10. The first paragraph of Article 17 must be interpreted as meaning that the formal require 7. Article 17 must be interpreted as meaning that ments therein laid down are satisfied if it is estab where a contract of insurance, entered into lished that jurisdiction was conferred by express between an insurer and a policy-holder and stipu oral agreement, that written confirmation of that lated by the latter to be for his benefit and to agreement by one of the parties was received by enure for the benefit for third parties, contains a the other and that the latter raised no objection clause conferring jurisdiction relating to proceed (judgment of 11 July 1985 in Case 221/84 Berg- ings which might be brought by such third parties, hoefer v. ASA (1985) ECR 2699-2710). the latter, even if they have not expressly signed the said clause, may rely upon it (judgment of 14 July 1983 in Case 201/82 Gerling v. Amminis- trazione del tesoro dello Stato (1983) ECR 2503- 11. An agreement conferring jurisdiction is not 2518). to be regarded as having been concluded for the benefit of only one of the parties, within the meaning of the third paragraph of Article 17 of 8. On bills of lading, the Court handed down a the Convention, where all that is established is judgment to the effect that: that the parties have agreed that a court or the courts of the Contracting State in which that party is domiciled are to have jurisdiction. (a) the bill of lading issued by the carrier to the shipper may be regarded as an 'agreement' 'evidenced in writing' between the parties, The Court held that clauses which expressly state within the meaning of Article 17. The juris the name of the party for whose benefit they were diction clause applies if the parties have agreed and those which, whilst specifying the signed the bill of lading. If the clause confer courts in which either party may sue the other, ring jurisdiction appears in the general con give one of them a wider choice of courts must be 28. 7. 90 Official Journal of the European Communities No. C 189/103
regarded as clauses whose wording shows that 2. The court of a Contracting State before which they were agreed for the exclusive benefit of one the applicant, without raising any objection as to of the parties (judgment of 24 June 1986 in Case the court's jurisdiction, enters an appearance in 22/85 Anterist v. Credit Lyonnais, OJ No C 196, proceedings relating to a claim for a set-off which 5. 8. 1986). is not based on the same contract or subject mat ter as the claims in his application and in respect of which there is a valid agreement conferring 12. Article 17 must be interpreted as meaning exclusive jurisdiction on the courts of another that where a written agreement containing a jur Contracting State within the meaning of Article isdiction clause and stipulating that the agree 17 of the Convention of 27 September 1968 on ment can be renewed only in writing has expired jurisdiction and the enforcement of judgments in but has continued to serve as the legal basis for civil and commercial matters has jurisdiction by the contractual relations between the parties, the virtue of Article 18 of that Convention (judgment jurisdiction clause satisfies the formal require of 7 March 1985 in Case 48/84 Spitzley v. Som- ments in Article 17 if, under the law applicable, mer (1985) ECR 787-800). the parties could validly renew the original con tract otherwise than in writing, or if, conversely, either party has confirmed in writing either the (14) Article 19: Examination of jurisdiction jurisdiction clause or the group of clauses which have been tacitly renewed and of which the jur isdiction clause forms part, without any objection Article 19 requires the national court to declare of on the part of the other party to whom such con its own motion that it has no jurisdiction when firmation has been notified (judgment of 11 Nov ever it finds that a court of another Contracting ember 1986 in Case 313/85 Iveco Fiat v. Van State has exclusive jurisdiction under Article 16 Hool, OJ No C 308, 2. 12. 1986, p. 4). of the Convention, even in an appeal in cassation where the national rules of procedure limit the court's review to the grounds raised by the parties (judgment of 15 November 1983 in Case 288/82 Duijnstee v. Goderbauer (1983) ECR 3663-3679).
(13) Article 18: Submission to the jurisdiction (15) Article 21: Lis pendens
1. See the judgment of 7 June 1984 in Case 1. (a) Article 18 applies even where the parties 129/83 Zelger v. Salinitri. have by agreement designated a court in another State since Article 17 is not one 2. The term lis pendens used in Article 21 covers of the exceptions laid down in Article 18 a case where a party brings an action before a and court in a Contracting State for a declaration that an international sales contract is inoperative or for the termination thereof whilst an action by the (b) Article 18 is applicable where the other party to secure performance of the said con defendant not only contests the court's tract is pending before a court in another Con jurisdiction but also makes submissions tracting State. on the substance of the action, provided that, if the challenge to jurisdiction is not The Court also ruled that the terms used in Article preliminary to any defence as to the sub 21 to determine a situation of lis pendens are to be stance, it does not occur after the making regarded as autonomous concepts (judgment of of the submissions which under national 8 December 1987 in Case 144/86 Gubisch v. Pal- procedural law are considered to be the umbo, OJ No C 8, 13. 1. 1988, p. 3). first defence addressed to the court seised (judgment of 24 June 1981 in Case 150/81 Elefanten Schuh v. Jacqmain (16) Article 22: Related actions (1981) ECR 1671-1690).
Article 22 does not confer jurisdiction. (See also the judgments of 22 October 1981 in Case 27/81 Rohr v. Ossberger, It applies only where related actions are brought 31 March 1982 in Case 25/81 C. H. W. v. before courts of two or more Contracting States G.J. H and 14 July 1983 in Case 201/82 (judgment of 24 June 1981 in Case 150/81 Ele Gerling v. Amministrazione del tesoro fanten Schuh v. Jacqmain (1981) ECR 1671- dello Stato.) 1690). No. C 189/104 Official Journal of the European Communities 28. 7. 90
(17) Article 24: Provisional, including protective, intended to be enforced without prior service do measures not come within the system of recognition and enforcement provided for by Title III of the Con vention (judgment of 21 May 1980 in Case 1. The inclusion of provisional measures in the 125/79 Denilauler v. Couchet (1980) ECR 1553). scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect (judgment of 2. Article 27 (2) must be interpreted as follows: 27 March 1979 in Case 143/78 J. De Cavel v. L. De Cavel (1979) ECR 1055-1068). (a) the words 'the document which insti 2. On the enforcement of judicial decisions tuted the proceedings' cover any docu authorizing provisional and protective measures, ment, such as the order for payment see Article 27 below (judgment of 21 May 1980 in (Zahlungsbefehl) in German law; Case 125/79 Denilauler v. Couchet (1980) ECR 1553). (b) a decision such as the enforcement order 3. Article 24 may not be relied on to bring (Vollstreckungsbefehl) in German law is within the scope of the Convention provisional not covered by the words 'the document measures relating to matters which are excluded which instituted the proceedings'; from it (judgment of 31 March 1982 in Case 25/81 C. H. W. v. G.J. H. (1982) ECR 1189- (c) in order to determine whether the 1205). defendant has been enabled to arrange for his defence as required by Article 27 (2) the court in which enforcement is (18) Article 26: Recognition sought must take account only of the time, such as that allowed under German law for submitting an objection (Wider- A foreign judgment recognized by virtue of spruch), available to the defendant for Article 26 must in principle have the same effects the purposes of preventing the issue of a in the State in which enforcement is sought as it judgment in default which is enforceable does in the State in which the judgment was under the Convention; given.
Subject, however, it should be added, to the (d) Article 27 (2) remains applicable where grounds for non-recognition laid down in the the defendant has lodged an objection Convention (judgment of 4 February 1988 in against the decision given in default and Case 145/86 Hoffmann v. Krieg. See also in the a court of the State in which the judg same case the Court's interpretation of Articles 27 ment was given has held the objection to (1) and (3), 31 and 36, OJ No C 63, 8.3. 1988, be inadmissible on the ground that the p. 6). time for lodging an objection has expired;
(\9) Article 27(1): Public policy (e) even if a court of the State in which the judgment was given has held, in separate Recourse to the public policy clause, which is to adversary proceedings, that service was be had only in exceptional cases, ... is in any duly effecte, Article 27 (2) still requires event not possible where the problem is one of the court in which enforcement is sought compatibility of a foreign judgment with a to examine whether service was effected domestic judgment. That problem must be in sufficient time to enable the defend resolved on the basis of Article 27 (3), which cov ant to arrange for his defence; ers the case of a foreign judgment irreconcilable with a judgment given between the same parties in the State in which enforcement is sought (judg (f) the court in which enforcement is sought ment of 4 February 1988 in Case 145/86 Hoff may as a general rule confine itself to mann v. Krieg, OJ No C 63, 8. 3. 1988, p. 6). examining whether the period, reckoned from the date on which service was duly effected, allowed the defendant suffi (20) Article 27(2): Rights of the defence cient time for his defence; it must, how ever, consider whether, in a particular case, there are exceptional circumstances 1. Judicial decisions authorizing provisional or such as the fact that, although service protective measures, which are delivered without was duly effected, it was inadequate for the party against which they are directed having the purposes of causing that time to been summoned to appear and which are begin to run; 28. 7. 90 Official Journal of the European Communities No. C 189/105
(g) Article 52 of the Convention and the fact and Plouvier v. Bouwman (1985) ECR that the court of the State in which 1779-1803). enforcement is sought concluded that under the law of that State the defendant was habitually resident within its terri (21) Article 27 (3): Irreconcilable judgments tory at the date of service of the docu ment which instituted the proceedings A foreign judgment ordering a person to make do not affect the replies given above maintenance payments to his spouse by virtue of (judgment of 16 June 1981 in Case his obligations, arising out of the marriage, to 166/80 Klomps v. Michel (1981) ECR support her is irreconcilable for the purposes of 1593-1612). Article 27 (3) with a national judgment which has decreed the divorce of the spouses in question (judgment of 4 February 1988 in Case 145/86 3. The court of the State in which enforcement Hoffmann v. Krieg, OJ No C 63, 8. 3. 1988, p. 6). is sought may, if it considers that the conditions laid down by Article 27 (2) are fulfilled, refuse to (22) Articles 30 and 38: Ordinary appeal grant recognition and enforcement of a judgment, even though the court of the State in which the judgment was given regarded it as proven, in The Court ruled in favour of an autonomous con accordance with the third paragraph of Article 20 cept of ordinary appeal. An 'ordinary appeal' is of that Convention in conjunction with Article 15 constituted by any appeal: of the Hague Convention of 15 November 1965, that the defendant, who failed to enter an appear (a) which is such that it may result in the annul ance, had an opportunity to receive service of the ment or the amendment of the judgment document instituting the proceedings in sufficient which is the subject matter of the procedure time to enable him to make arrangements for his for recognition or enforcement and defence (judgment of 15 July 1982 in Case 288/81 Pendy Plastic Products v. Pluspunkt (1982) ECR (b) the lodging of which is bound, in the State in 2723-2737). which the judgment was given, to a period which is laid down by the law and starts to run by virtue of that same judgment (judg ment of 22 November 1977 in Case 43/77 4. (a) Article 27 (2) is also applicable, in res Industrial Diamond v. Riva (1977) ECR pect of its requirement that service of the 2175-2191). document which instituted the proceed ings should have been effected in suffi (23) Article 31: Enforcement cient time, where service was effected within a period prescribed by the court of the State in which the judgment was 1. The provisions of the Convention prevent a given or where the defendant resided, party who has obtained a judgment in his favour exclusively or otherwise, within the jur in a Contracting State, being a judgment for isdiction of that court or in the same which an order for enforcement under Article 31 country as that court. may issue in another Contracting State, from making an application to a court in that other State for a judgment against the other party in the same terms as the judgment delivered in the first (b) In examining whether service was State (judgment in Case 42/76 De Wolf v. Cox). effected in sufficient time, the court in which enforcement is sought may take 2. A foreign judgment the enforcement of which account of exceptional circumstances has been ordered in a Contracting State pursuant which arose after service was duly to Article 31, and which remains enforceable in effected. the State in which it was given, need not remain enforceable in the State in which enforcement is sought when, under the legislation of the latter State, it ceases to be enforceable for reasons (c) The fact that the plaintiff was apprised which lie outside the scope of the Convention. of the defendant's new address, after ser vice was effected, and the fact that the In the case in point a foreign judgment ordering a defendant was responsible for the failure person to make maintenance payments to his of the duly served document to reach spouse by virtue of his obligations, arising out of him are matters which the court in which the marriage, to support her is irreconcilable with enforcement is sought may take into a national judgment which has decreed the account in assessing whether service was divorce of the spouses in question (judgment of effected in sufficient time (judgment of 4 February 1988 in Case 145/86 Hoffman v. 11 June 1985 in Case 49/84 Debaecker Krieg, OJ No C 63, 8. 3. 1988, p. 6). No. C 189/106 Official Journal of the European Communities 28. 7. 90
(24) Article 33: Address for service ested third parties may contest execution by means of the procedures available to them under the law of the State in which execution is levied (judgment of 2 July 1. (a) The second paragraph of Article 33 must 1985 in Case 148/84 Deutsche Genos- be interpreted as meaning that the senschaftsbank v. Brasserie du Pecheur requirement to give an address for ser (1985) ECR 1981-1993). vice laid down in that provision must be complied with in accordance with the 2. The Article must be interpreted as meaning rules laid down by the law of the State in that the party who has failed to appeal against the which enforcement is sought or, if those enforcement order referred to in Article 31 (in the rules do not specify when that require case in point within one month of service of the ment must be complied with, no later enforcement order) is thereafter precluded, at the than the date on which the enforcement stage at which the judgment is enforced, from order is served. relying upon a valid reason which he could have invoked in such appeal. That rule is to be applied (b) The consequences of an infringement of ex officio by the courts of the State in which the rules concerning the choice of an enforcement is sought. However, that rule does address for service are, by virtue of not apply when it has the effect of obliging the Article 33 of the Convention, governed national court to make the effects of a national by the law of the State in which enforce judgment lying outside the scope of the Conven ment is sought, provided that the aims of tion (divorce) conditional on that judgment being the Convention are respected, i.e. the law recognized in the State in which the foreign judg of the latter State remains subject to the ment whose enforcement is at issue was given aims of the Convention; the penalty can (judgment of 4 February 1988 in Case 145/86 not therefore call into question the valid Hoffman v. Krieg, OJ No C 63, 8. 3. 1988, p. 6). ity of the judgment granting enforcement or allow the rights of the party against whom enforcement is sought to be pre judiced (judgment of 10 July 1986 in (26) Article 37: Enforcement procedure Case 198/85 Carron v. FRG, OJ No C 209, 20. 8. 1986, p. 5). 1. (a) The second paragraph of Article 37 must be interpreted as meaning that an appeal in cassation and, in the Federal Republic (25) Article 36: Enforcement procedure of Germany, a 'Rechtsbeschwerde' may be lodged only against the judgment given on the appeal.
1. (a) Article 36 of the Convention excludes (b) That provision cannot be extended so as any procedure whereby interested third to enable an appeal to be lodged against parties may challenge an enforcement a judgment other than that given on the order, even where such a procedure is appeal, for instance against a prelimi available to third parties under the nary or interlocutory order requiring pre domestic law of the State in which the liminary inquiries to be made (judgment enforcement order is granted. of 27 November 1984 in Case 258/83 Brennero v. Wendel (1984) ECR 3971- (b) The Court held that the Convention has 3984). established an enforcement procedure which constitutes an autonomous and complete system, including the matter of appeals. It follows that Article 36 of the (27) Article 38: Enforcement procedure Convention excludes procedures where by interested third parties may challenge an enforcement order under domestic 1. See (20) above on 'ordinary appeal'. law. 2. The second paragraph of Article 38 of the (c) The Convention merely regulates the Convention of 27 September 1968 on jurisdiction procedure for obtaining an order for the and the enforcement of judgments in civil and enforcement of foreign enforceable commercial matters must be interpreted as mean instruments and does not deal with exe ing that a court with which an appeal has been cution itself, which continues to be gov lodged against a decision authorizing enforce erned by the domestic law of the court in ment, given pursuant to the Convention, may which execution is sought, so that inter make enforcement conditional on the provision 28. 7. 90 Official Journal of the European Communities No. C 189/107
of security only when it gives judgment on the litigation relating to legal relationships created appeal (judgment of 27 November 1984 in Case before the date of the coming into force of the 258/83 Brennero v. Wendel (1984) ECR 3971- Convention is that the judicial proceedings 3984). should have been instituted subsequently to that date. This is true even if an agreement conferring jurisdiction was concluded before the Convention came into force and could be regarded as void (28) Article 39: Enforcement procedure under the law applicable to it; the case in point concerns a contract of employment between a French employee and a German firm, to which 1. (a) By virtue of Article 39 of the Conven French law was applicable (judgment of 13 Nov tion, a party who has applied for and ember 1979 in Case 25/79 Sanicentral v. Collin obtained authorization for enforcement (1979) ECR 3423-3431). may, within the period mentioned in that Article, proceed directly with protective measures against the property of the party against whom enforcement is (31) Articles 55 and 56: Bilateral Conventions sought and is under no obligation to obtain specific authorization. As the first paragraph of Article 56 of the Con (b) A party who has obtained authorization vention states that the bilateral Conventions for enforcement may proceed with the listed in Article 55 continue to have effect in rela protective measures referred to in Article tion to matters to which the Convention does not 39 until the expiry of the period pres apply, the court of the State in which enforcement cribed in Article 36 for lodging an appeal is sought may apply them to decisions which, and, if such an appeal is lodged, until a without coming under the second paragraph of decision is given thereon. Article 1, are excluded from the Convention's scope. This is the case as regards application of (c) A party who has proceeded with the pro the German-Belgian Convention of 1958, which tective measures referred to in Article 39 may continue to have effect in 'civil and commer of the Convention is under no obligation cial matters', irrespective of the autonomous con to obtain, in respect of those measures, struction placed upon that concept by the Court any confirmatory judgment required by for the purposes of interpretation of the 1968 the national law of the court in question Convention (judgment of 14 July 1977 in joined (judgment of 3 October 1985 in Case Cases 9/77 and 10/77 Bavaria and Germanair v. 119/84 Capelloni v. Pelkmans (1985) Eurocontrol (1977) ECR 1517-1527). ECR 3147-3164).
(32) Article I, second paragraph, of the Protocol (29) Article 40: Enforcement procedure annexed to the Convention (Luxembourg)
The court hearing an appeal by a party seeking A clause conferring jurisdiction is not binding enforcement is required to hear the party against upon a person domiciled in Luxembourg unless whom enforcement is sought, pursuant to the first that clause is mentioned in a provision: sentence of the second paragraph of Article 40 of the Convention, even though the application for (a) specially and exclusively meant for this pur an enforcement order was dismissed in the lower pose; court simply because documents were not pro duced at the appropriate time. (b) specifically signed by that party; in this res pect the signing of the contract as a whole This is because the Convention formally requires does not suffice. It is not necessary for that that both parties should be given a hearing at the clause to be mentioned in a separate docu appellate level, without regard to the scope of the ment (judgment of 6 May 1980 in Case decision in the lower court (judgment of 12 July 784/79 Porta-Leasing v. Prestige Interna 1984 in Case 178/83 P. v. K. (1984) ECR 3033- tional (1980) ECR 1517). 3043).
(33) Article II of the Protocol annexed to the Con (30) Article 54: Temporal application vention
The effect of Article 54 is that the only essential 1. The expression 'an offence which was not for the rules of the Convention to be applicable to intentionally committed' should be understood No. C 189/108 Official Journal of the European Communities 28. 7. 90
as meaning any offence the legal definition of (34) Article 2 of the Protocol of 3 June 1971 which does not require the existence of intent, and Lower courts not sitting in an appellate capacity 2. Article II of the Protocol applies in all crimi are not empowered to seek a preliminary ruling nal proceedings concerning offences which were from the Court of Justice on a question of inter not intentionally committed, 'in which the pretation of the Convention. accused's liability at civil law, arising from the elements of the offence for which he is being pro See the Court of Justice's order of 9 November secuted, is in question or on which such liability 1983 in Case 80/83 Habourdin v. Italocremona might subsequently be based' (judgment of (1983) ECR 3639-3641) and order of 28 March 26 May 1981 in Case 157/80 Rinkau (1981) ECR 1984 in Case 56/84 Von Gallera v. Maitre ((1984) 1391-1484). ECR 1769-1772).
132. 3. List of judgments of the Court of Justice (from 6 October 1976 to 27 September 1988)
I. 6. 10.1976 Case 12/76 Tessili v. Dunlop Article 5(1) (1976) ECR 1473-1487
II. 6. 10.1976 Case 14/76 De Bloos v. Bouyer Article 5(1) and (1976) ECR Article 5 (5) 1497-1511
III. 14. 10. 1976 Case 29/76 LTU v. Eurocontrol Article 1 (1976) ECR 1541-1552
IV. 30. 11.1976 Case 21/76 Reinwater v. Article 5 (3) (1976) ECR Potasse d'Alsace 1735-1748
V. 30. 11.1976 Case 42/76 De Wolf v. Cox Article 31 (1976) ECR 1759-1768
VI. 14. 12.1976 Case 24/76 Colzani v. Ruwa Article 17, (1976) ECR paragraph 1 1831-1843
VII. 14. 12. 1976 Case 25/76 Segoura v. Article 17, (1976) ECR Bonakdarian paragraph 1 1851-1863
VIII. 14. 7. 1977 Case 9/77 Bavaria-Germanair v. Article 56 (1977) ECR and 10/77 Eurocontrol 1517-1527
IX. 22. 11. 1977 Case 43/77 Diamond v. Riva Articles 30 and 38 (1977) ECR 2175-2191
X. 14. 12.1977 Case 73/77 Sanders v. Article 16(1) (1977) ECR Van der Putte 2382-2392
XI. 21. 6.1978 Case 150/77 Bertrand v. Ott Article 13 (1978) ECR 1431-1447
XII. 9. 11. 1978 Case 23/78 Meeth v. Glacetal Article 17 (1978) ECR 2133-2144
XIII. 22. 11.1978 Case 33/78 Somafer v. Ferngas Article 5 (5) (1978) ECR 2183-2195
XIV 22. 9.1979 Case 133/78 Gourdain v. Nadler Article 1, (1979) ECR paragraph 2, point 2 733-746
XV 27. 3.1979 Case 143/78 J. De Cavel v. Articles 1, (1979) ECR L. De Cavel paragraph 2, and 24 1055-1068
XVI. 13. 11.1979 Case 25/79 Sanicentral v. Articles 17 and 54 (1979) ECR Collin 3423-3431
XVII. 17. 1. 1980 Case 56/79 Zelger v. Salinitri Articles 5(1) and 17 (1980) ECR 89-98
XVIII. 6. 3.1980 Case 120/79 L. De Cavel v. Articles 5 (2) and 24 (1980) ECR J. De Cavel 731 XIX. 6. 5. 1980 Case 784/79 Porta-Leasing v. Article I, (1980) ECR Prestige International paragraph 2 1517 of Protocol
XX. 21. 5. 1980 Case 125/79 Denilauler v. Couchet Title III (1980) ECR 1553 28.7.90 Official Journal of the European Communities No. C 189/109
XXI. 16. 12.1980 Case 814/79 Netherlands State v. Article 1 (1980) ECR Riiffer 3807-3822 XXII. 18. 3.1981 Case 139/80 Blanckaert & Willems v. Article 5 (5) (1981) ECR Trost 819-830 XXIII. 26. 5.1981 Case 157/80 Rinkau Article II (1981) ECR of Protocol 1391-1404 XXIV. 16. 6. 1981 Case 166/80 Klomps v. Michel Article 27 (2) (1981) ECR 1593-1612 XXV. 24. 6. 1981 Case 150/80 Elefenten Schuh v. Articles 17, (1981) ECR Jacqmain 18 and 22, 1671-1698 paragraph 1 XXVI. 22. 10. 1981 Case 27/81 Rohr v. Ossberger Article 18 (1981) ECR 2431-2448 XXVII. 4. 3.1982 Case 38/81 Effer v. Kantner Article 5(1) (1982) ECR 825-836 XXVIII. 31. 3.1982 Case 25/81 C. H. W. v. G. J. H. Articles 1, (1982) ECR 18 and 24 1189-1205 XXIX. 26. 5. 1982 Case 133/81 Ivenel v. Schwab Article 5(1) (1982) ECR 1891-1902 XXX. 15. 7.1982 Case 228/81 Pendy Plastic Products Articles 20, (1982) ECR v. Pluspunkt paragraph 3 2723-2737 and 27 (2) XXXI. 22. 3.1983 Case 34/82 Peters v. ZNAV Article 5(1) (1983) ECR 987-1004 XXXII. 14. 7. 1983 Case 201/82 Gerling v. Amminist- Articles 17 (1983) ECR razione del Tesoro and 18 2503-2518 dello Stato XXXIII. 21. 9. 1983 (order) Verheezen v. Miiller Articles 1 — Case 157/82 and 50 XXXIV. 15. 11.1983 Case 288/82 Duijnstee v. Articles 16 (1983) ECR Goderbauer (4) and 19 3663-3679 XXXV. 9. 11.1983 (order) Habourdin v. Article 2 of (1983) ECR Case 80/83 Italocremona Protocol of 3639-3641 3.6. 1971 XXXVI. 7. 6.1984 Case 129/83 Zelger v. Salinitri Article 21 (1984) ECR 2397-2409 XXXVII. 19. 6. 1984 Case 71/83 Russ v. Goeminne Article 17 (1984) ECR 2417-2436 XXXVIII. 12. 7.1984 Case 178/83 P. v. K. Article 40 (1984) ECR 3033-3043 XXXIX. 27. 11. 1984 Case 258/83 Brennero v. Wendel Articles 37 (1984) ECR and 38 3971-3984 XL. 15. 1.1985 Case 241/83 Rosier v. Rottwinkel Article 16(1) (1985) ECR 99-129 XLI. 7. 3.1985 Case 48/84 Spitzley v. Sommer Articles 17 (1985) ECR and 18 787-800 XLII. 11. 6. 1985 Case 49/84 Debaecker & Plouvier Article 27 (1985) ECR v. Bouwman 1779-1803 XLIII. 2. 7.1985 Case 148/84 Genossenschaftsbank v. Article 36 (1985) ECR Brasserie du Pecheur 1981-1993 XLIV. 4. 7. 1985 Case 228/84 AS-Autoteile v. Article 16(5) (1985) ECR Malhe 2267-2279 XLV. 11. 7. 1985 Case 221/84 Berghoefer v. ASA Article 17 (1985) ECR 2699-2710 XLVI. 3. 10. 1985 Case 119/84 Capelloni-Aquilini v. Article 39 (1985) ECR Pelkmans 3147-3164 XLVII. 24. 6.1986 Case 22/85 Anterist v. Credit Article 17 OJNoC 196, Lyonnais 5.8. 1986, p. 5 XLVIII. 10. 7. 1986 Case 198/85 Carron v. FRG Article 33 OJ No C 209, 20.8. 1986, p. 5 No. C 189/110 Official Journal of the European Communities 28. 7. 90
XLIX. 11.11.1986 Case 313/85 Iveco Fiat v. Article 17 OJ No C 308, Van Hool 2. 12. 1986, p. 4 L. 15. 1.1987 Case 266/85 Shenavai v. Kreischer Article 5(1) OJ No C 39, 17.2. 1987, p. 3 LI. 8. 12. 1987 Case 144/86 Gubisch v. Palumbo Article 21 OJ No C 8, 13. 1. 1988, p. 3 LII. 9. 12. 1987 Case 218/86 Schotte v. Rothschild Article 5 (5) OJ No C 2, 6. 1. 1988, p. 3 LIII. 4. 2. V Case 145/86 Hoffman v. Krieg Articles 26, OJ No C 63, 27,31 and 36 8.3. 1988, p. 6 LIV. 8. 3.1988 Case 9/87 Arcado v. Haviland Article 5(1) OJ No C 89, 6.4. 1988, p. 9 LV. 6. 7. 1988 Case 158/87 Scherens v. Maenhout Article 16(1) OJNoC211, 11.8. 1988, p. 7 LVI. 27. 9. 1988 Case 189/87 Kalfelis v. Schroder Articles 5 (3) OJNoC281, and 6(1) 4. 11. 1988, p. 18
4. Cases pending as at 1 February 1989
133. A number of applications for preliminary rulings are currently before the Court of Jus tice. The cases involved are as follows:
(a) Case 32/88 Six Constructions v. Humbert Article 5(1) — Contract of employment What if a contract of employment is performed in a number of countries? OJ No C 55, 26. 2. 1988, p. 12.
(b) Case 36/88 Schilling v. Merbes Article 27 (2) What if the defaulting defendant was not served with the document instituting proceedings in due form, albeit in sufficient time to enable him to arrange for his defence? OJ No C 79, 26. 3. 1988, p. 4. This case has been removed from the register following the withdrawal of the appeal.
(c) Case 115/88 Reichert-Kockler v. Dresdner Bank Article 16(1) — Concept of rights in rem in immovable property OJNoC 125, 12.5. 1988, p. 13.
(d) Case 220/88 Dumez Batiment SA v. Hessische Landesbank Article 5 (3) OJNoC226, 1.9. 1988, p. 6.
(e) Case 305/88 Lancray SA v. Peters & Sickert KG Article 27 (2) OJNoC300, 25. 11. 1988, p. 10.
(f) Case 365/88 Congress Agentur Hagen GmbH/Zeehaghe BV Article 5 (beginning) and point 1 and Article 6 (beginning) and point 2 OJNoC20, 26. 1. 1989, p. 8. 28. 7. 90 Official Journal of the European Communities No. C 189/111
ANNEX J
THE LAW IN FORCE IN THE EFTA MEMBER STATES CONCERNING THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
A. AUSTRIA
134. Foreign judgments in civil and commercial matters are not recognized and cannot be enforced in Austria unless a treaty is in force with the State in which the judgment was given. However, for eign judgments concerning the status or legal capacity of persons are in most cases recognized even if there are no statutory provisions requiring such recognition. A foreign judgment which is neither recognized nor enforced in Austria may however have a certain evidential value there. The evidential value of a foreign judgment will depend on the circumstances in each particular case.
B. FINLAND AND SWEDEN
135. The main principle of Finnish and of Swedish law is that foreign judgments are neither recognized nor enforced, unless there is a statutory provision to the contrary. Such statutory provisions are very few and they are almost always based on international conventions or agreements. Most of these provisions cover only decisions dealing with rather special matters, such as some aspects of international carriage, maintenance or civil liability in the field of nuclear energy.
What has been mentioned above does, however, not apply to decisions relating to status and legal capacity. Those decisions are in most cases recognized even where there is no statutory provision ordering recognition.
The fact that a foreign judgment is, in the absence of a statutory provision to the contrary, neither recognized nor enforced in Finland and Sweden does not mean that such a foreign judgment is completely without value in those countries. Firstly a foreign judgment can be invoked as evi dence concerning certain facts or the contents of applicable foreign law. According to Finnish and Swedish law there is, generally speaking, no 'inadmissible' evidence at all. Within the framework of this principle, the court may take into consideration the facts established in foreign proceedings and the foreign courts' legal reasoning. Naturally this evidential value of a foreign judgment will depend on the circumstances in each particular case, especially on the degree of confidence in the foreign court. In some situations, particularly when according to the rules on conflict of laws the dispute is to be decided by the substantive law of the foreign court and the foreign court has applied the same law (lex fori), the foreign judgment may shift the burden of proof to the party challenging its outcome. If the judgment of a foreign court relates to immovable property within its jurisdiction there will — at least in most cases — be no review of the substance of the dispute.
Secondly, a foreign judgment may be of great value in Finland and Sweden also in those cases where Finnish and Swedish courts do not have jurisdiction and where a party nevertheless has an interest to rely upon the judgment in the country concerned, e.g. in order to obtain enforcement of a money judgment. If, for instance, a foreign court according to a forum-selection clause has exclusive jurisdiction for a dispute, Finnish and Swedish courts will usually decline jurisdiction. The judgment of the chosen foreign court (forum prorogatum) cannot, however, be enforced in Finland or Sweden as such. The plaintiff (the creditor) can in this situation sue in a Finnish or Swedish court invoking the foreign judgment. The court will, under such circumstances, most probably abstain from considering the merits of the case and base its decision on the foreign judg ment. In any case there will be no complete review of the merits (revision au fond) of the foreign judgment.
C. ICELAND
136. The main principle of Icelandic law is that foreign judgments are neither recognized nor enforced, unless there is a statutory provision to the contrary. Such provisions have hitherto No. C 189/112 Official Journal of the European Communities 28. 7. 90
always been based on international conventions. However, foreign judgments concerning the sta tus or legal capacity of a natural person are usually recognized even if there is no statutory provi sion ordering recognition. Foreign judgments which are neither recognized nor enforced in Ice land can, however, have a certain evidential value there. This is mainly due to the fact that there is, generally speaking, no inadmissible evidence in Icelandic courts. The findings of fact in a for eign judgment are therfore likely to have a certain relevance.
D. NORWAY
137. Foreign judgments in civil and commercial matters are not recognized and may not be enforced in Norway unless there is a treaty with the State in which the judgment in question was rendered.
However, foreign judgments concerning the status or legal capacity of a natural person are recog nized in Norway even if there is no treaty with the State in question, provided that certain criteria are fulfilled.
As regards jurisdiction and enforcement of judgments based on a convention conferring jurisdic tion, Norway operates a procedure similar to those applying in Finland and Sweden (see point 135 above).
The remarks in point 135 above on the evidential validity of a foreign judgment also apply to Norway.
E. SWITZERLAND
138. In Switzerland, the rules relating to international jurisdiction and the principles governing the recognition and enforcement of foreign judgments were until very recently scattered among sev eral legal sources, these being partly federal and partly cantonal. On a number of matters relevant to international jurisdiction, neither federal law nor cantonal law contained explicit rules. In such situations the principles of intercantonal law were applied by analogy to international cases.
On 18 December 1987, the Swiss Parliament passed a new Act on Private International Law. The new law, which will come into force on 1 January 1989, contains provisions on the international jurisdiction of Swiss courts and on the recognition and enforcement of judgments in civil and commercial matters. These provisions replace the present provisions of cantonal and federal law concerning jurisdiction and recognition and enforcement of judgments. Thus, the recognition and enforcement of judgments in civil and commercial matters will in its entirety be governed by fed eral law, which prevails over the cantonal laws. According to the APIL, reciprocity will no longer be a formal requirement for obtaining recognition or enforcement of foreign judgments. In fact, the effects of the reciprocity-test are replaced by the new system of control of jurisdiction of the State of origin.
— According to Article 25 of the APIL, a foreign judgment will be recognized in Switzerland:
a) if the courts of the State of origin had jurisdiction according to the APIL;
b) if the judgment is no longer subject to ordinary forms of review or if the judgment is final;
c) if there is no ground for refusal mentioned in APIL Article 27.
— A foreign court is according to APIL Article 26 considered to have jurisdiction:
a) if this follows from a provision in the APIL (e.g. Articles 112 to 115 as regards contracts and civil liability, and Articles 151 to 153 as regards company law) or, in the absence of such a provision, if the defendant had his domicile in the State of origin;
b) in the case of dispute concerning a sum of money, if the parties have agreed that the court which has given the judgment had jurisdiction and this agreement was not invalid according to the provisions of the APIL,
c) in the case of a dispute concerning a sum of money, if the defendant has argued the merits without challenging the jurisdiction of the court or making any reservation there on (exceptio incompetentiae internationalis), 28. 7. 90 Official Journal of the European Communities No. C 189/113
d) in the case of a counterclaim, if the court had jurisdiction to try the principal claim and the principal claim and the counterclaim were interrelated. — A foreign judgment will, according to Article 27, paragraph 1 of the APIL, not be recognized if recognition would be manifestly incompatible with the public policy of Switzerland. — Recognition of a judgment will, according to Article 27 paragraph 2, also be refused at the request of a party against whom it is invoked if that party furnishes proof: a) that he was, neither according to the law of his domicile nor according to the law of his habitual residence, duly served with the document which instituted the proceedings, unless he has argued the merits without reservation; b) that the judgment resulted from proceedings incompatible with fundamental principles of the Swiss law of procedure, especially that the party concerned has not had an oppor tunity to defend himself; c) that proceedings between the same parties and concerning the same matter i) are already pending before a court in Switzerland, ii) have resulted in a decision by a Swiss court, or iii) have resulted in an earlier judgment by a court of a third State which fulfills the conditions for recognition in Switzerland. — Under Article 29, paragraph 1, a judgment which is recognized according to Articles 25 to 27 of the APIL will be enforced in Switzerland, on the application of any interested party. The application for enforcement must be submitted to the competent authority of the canton where the foreign judgment is invoked. The following documents must be attached to the application: a) a complete and authenticated copy of the decision; b) an attestation according to which the judgment is no longer subject to the ordinary forms of review in the State of origin or that it is final; c) if the judgment was rendered by default, an official document establishing that the defaulting party was served with the document instituting the proceedings and had an opportunity to defend himself. In the proceedings for recognition and enforcement the party against whom enforcement is sought must be heard (Article 29, paragraph 2). No. C 189/114 Official Journal of the European Communities 28. 7. 90
ANNEX II
EXISTING CONVENTIONS WHICH CONCERN THE EFTA MEMBER STATES
139. Apart from conventions dealing with particular matters, various conventions on recognition and enforcement of judgments exist between certain EFTA Member States and certain States of the European Communities. These are the conventions listed in Article 55 of the Lugano Convention between Denmark, Finland, Iceland, Norway and Sweden, the bilateral treaties concluded between Austria and Belgium, Spain, France, Italy, Luxembourg, the Netherlands, the Federal Republic of Germany and the United Kingdom, and the bilateral treaties concluded between the Swiss Confederation and Belgium, Spain, France, Italy, Norway and the Federal Republic of Ger many and between Norway and the United Kingdom and the Federal Republic of Germany.
In addition to conventions dealing with particular matters, various conventions on recognition and enforcement also exist between the EFTA Member States. These are the abovementioned convention between Denmark, Finland, Iceland, Norway and Sweden, the bilateral conventions concluded by Austria with Finland, Norway, Sweden and the Swiss Confederation and the bila teral convention between Sweden and the Swiss Confederation listed in Article 55 of the Lugano Convention. Thus, relations between Switzerland on the one hand, and Finland, Iceland and Nor way on the other hand, as well as relations between Austria and Iceland, are hampered by the absence of such conventions.
There are also differences between the various conventions. The convention between Switzerland and France is based on 'direct' jurisdiction; but all the others are based on 'indirect' jurisdiction. There are also various other differences between these conventions which need not be discussed in detail; they relate in particular to the determination of courts with jurisdiction and to the condi tions governing recognition and enforcement. 28. 7. 90 Official Journal of the European Communities No. C 189/115
ANNEX III
FINAL ACT
The representatives of
THE GOVERNMENT OF THE KINGDOM OF BELGIUM, THE GOVERNMENT OF THE KINGDOM OF DENMARK, THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, THE GOVERNMENT OF THE HELLENIC REPUBLIC, THE GOVERNMENT OF THE KINGDOM OF SPAIN THE GOVERNMENT OF THE FRENCH REPUBLIC, THE GOVERNMENT OF IRELAND, THE GOVERNMENT OF THE REPUBLIC OF ICELAND, THE GOVERNMENT OF THE ITALIAN REPUBLIC, THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG, THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, THE GOVERNMENT OF THE KINGDOM OF NORWAY, THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA, THE GOVERNMENT OF THE PORTUGUESE REPUBLIC, THE GOVERNMENT OF THE KINGDOM OF SWEDEN, THE GOVERNMENT OF THE SWISS CONFEDERATION, THE GOVERNMENT OF THE REPUBLIC OF FINLAND, THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
Assembled at Lugano on the sixteenth day of September in the year one thousand nine hundred and eighty-eight on the occasion of the Diplomatic Conference on jurisdiction in civil matters, have placed on record the fact that the following texts have been drawn up and adopted within the Conference:
I. the Convention on jurisdiction and the enforcement of judgments in civil and commer cial matters;
II. the following Protocols, which form an integral part of the Convention: — 1, on certain questions of jurisdiction, procedure and enforcement, — 2, on the uniform interpretation of the Convention, — 3, on the application of Article 57;
III. the following Declarations: — Declaration by the representatives of the Governments of the States signatories to the Lugano Convention which are members of the European Communities on Pro tocol 3 on the application of Article 57 of the Convention, — Declaration by the representatives of the Governments of the States signatories to the Lugano Convention which are members of the European Communities, — Declaration by the representatives of the Governments of the States signatories to the Lugano Convention which are members of the European Free Trade Associa tion. No. C 189/116 Official Journal of the European Communities 28. 7. 90
En fe de lo cual, los abajo firmantes suscriben la presente Acta final.
Til bekraeftelse heraf har undertegnede underskrevet denne slutakt.
Zu Urkund dessen haben die Unterzeichneten ihre Unterschrift unter diese SchluBakte ge- setzt.
le TTiaxoep© xcov avwxeptou, 16 i)7toyp&(Qovxe£ 7iA,r|p8|o6aioi eOeaav XT|V imoypaij/fi xou£ K&XCO ajio xnv jtapouaa xekiKi] np6,Z,r\.
In witness whereof, the undersigned have signed this Final Act.
En foi de quoi, les soussignes ont appose leurs signatures au bas du present acte final.
Da fhianu sin, chuir na daoine thios-sinithe a lamh leis an Ionstraim Chriochnaitheach seo.
Pessu til staofestu hafa undirritaoir undirritao lokagero pessa.
In fede di che, i sottoscritti hanno apposto le loro firme in calce al presente atto finale.
Ten blijke waarvan de ondergetekenden hun handtekening onder deze Slotakte hebben ge- steld.
Til bekreftelse har de undertegnete underskrevet denne Sluttakt.
Em fe do que os abaixo-assinados apuseram as suas assinaturas no final do presente Acto Final.
Taman vakuudeksi allekirjoittaneet ovat, allekirjoittaneet taman Paattopoytakirjan.
Till bekraftelse harav har undertecknade undertecknat denna Slutakt.
Hecho en Lugano, a dieciseis de septiembre de mil novecientos ochenta y ocho.
Udfaerdiget i Lugano, den sekstende September nitten hundrede og otteogfirs.
Geschehen zu Lugano am sechzehnten September neunzehnhundertachtundachtzig.
'EyivE axo AouyK&vo, axiC, 6EK Done at Lugano on the sixteenth day of September in the year one thousand nine hundred and eighty-eight. Fait a Lugano, le seize septembre mil neuf cent quatre-vingt-huit. Arna dheanamh i Lugano, an seu la deag de Mhean Fomhair sa bhliain mile naoi gcead ochto a hocht. Gjort i Lugano hinn sextanda dag septembermanaoar nitjan hundruo attatiu og atta. Fatto a Lugano, addi' sedici settembre millenovecentottantotto. Gedaan te Lugano, de zestiende September negentienhonderd achtentachtig. Utferdiget i Lugano, den sekstende September nitten hundre og attiatte. Feito em Lugano, em dezasseis de Setembro de mil novecentos e oitenta e oito. 28. 7. 90 Official Journal of the European Communities No. C 189/117 Tehty Luganossa kuudentenatoista paivana syyskuuta vuonna tuhat yhdeksansataa kahdek- sankymmentakahdeksan. Som skedde i Lugano den sextonde September nittonhundraattioatta. Pour le gouvernement du royaume de Belgique Voor de Regering van het Koninkrijke Belgie For regeringen for Kongeriget Danmark Fur die Regierung der Bundesrepublik Deutschland ^B^t ^e^^ P^Tn^Kn^pvnc^^E^n^n^^An^ r^NJ^i^U oO\ Por el Gobierno del Reino de Espana ~~tJ^~ Pour le gouvernement de la Republique francaise Thar ceann Rialtas na hEireann No. C 189/118 Official Journal of the European Communities 28. 7. 90 Fyrir rikisstjorn lyoveldisins Islands Per il governo della Repubblica italiana U."' .' ^*^-A- |V*vt- APour le gouvernemen t du grand-duche de Luxembourg Voor de Regering van het Koninkrijk der Nederlanden c For Kongeriket Norges Regjenng A I - Fiir die Regierung der Republik Oesterreich Pelo Governo da Republica Portuguesa f '\ J)A . y v Fiir die Regierung der Schweizerischen Eidgenossenschaft Pour le gouvernement de la Confederation suisse Per il Governo della Confederazione svizzera J&toLe/L faff/* C jortXA/C > faw% • A--\ 28. 7. 90 Official Journal of the European Communities No. C 189/119 Suomen tasavallan hallituksen puolesta For Konungariket Sveriges regering n 4ce=.Q_^% For the Government of the United Kingdom of Great Britain and Northern Ireland No. C 189/120 Official Journal of the European Communities 28. 7. 90 (') Belgium, Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands. (2) Convention of 9 October 1978 on the accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ No L 304, 30. 10. 1978) and Convention of 25 October 1982 on the accession of Greece (OJ No L 388, 31. 12. 1982). (3) The Jenard and Schlosser reports were published on OJ No C 59, 15. 3. 1979. The report by Mr Evrigenis and Mr Kerameus was published in OJ No C 298, 24. 11. 1986. (4) In order to align the United Kingdom concept of domicile on that of many continental countries the Civil Jurisdiction Act 1982, introducing the Convention into United Kingdom law, deals with the matter in Section 41. According to the Act, a person is deemed to have his domicile in the United Kingdom if he resides there and the nature and circumstances of his residence show there to be an effective link between his residence and the United Kingdom. For Ireland, see the Juris diction of Courts and Enforcement of Judgments (European Communities) Act 1988, Sections 13 and 5 in the Schedule. (5) Article 6 of the Rome Convention provides that: '1. Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice. 2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed: (a) by the law of the country in which the employee habitually carries out his work in perform ance of the contract, even if he is temporarily employed in another country; or (b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated; unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.' (6) These international agreements are numerous and relate to fields as varied as inland waterway transport, transport by sea, air, road and rail, and maintenance obligations. See, for instance, Jen ard report, pp. 59 and 60. (7) In the course of the negotiations no account was taken of the distinction between 'Contracting State' and 'party' made in the Vienna Convention on the Law of Treaties (Article 2 (f) and (g)). As in the Brussels Convention, the term 'Contracting State' refers both to a State which has consented to be bound by the Convention, either by ratifying it or by acceding to it, and to a State in respect of which the Convention has entered into force. (8) — Non-European dependent territories of the United Kingdom, which have expressed interest in participating in the EEC/EFTA Convention on jurisdiction and the enforcement of judg ments in civil and commercial matters: Anguilla, Bermuda, British Virgin Islands, Montserrat and Turks and Caicos Islands, Hong Kong. — Non-European dependent territories of the United Kingdom other than those mentioned above: — Caribbean and North Atlantic: Cayman Islands, — South Atlantic: British Antartic Territory, Falkland Islands, South Georgia and the South Sandwich Islands, St Helena and dependencies (Ascension Island) (Tristan da Cunha), — Indian Ocean: British Indian Ocean Territory, — South Pacific: Pitcairn Island, Henderson, Ducie and Oeno. (9) Article 59 of the Federal Constitution states that: '1. For the purposes of personal claims a solvent debtor domiciled in Switzerland must be sued before the court for his domicile; his property may not therefore be seized or sequestrated outside the canton in which he is domiciled, in pursuance of personal claims. 2. In the case of foreign nationals this is without prejudice to the provisions of international treaties.' 28. 7. 90 Official Journal of the European Communities No. C 189/121 (*) Article 1482 of the Spanish Civil Code: 'The purchaser against whom an action for eviction is brought shall request, within the period specified by the Code of Civil Procedure for replying to the action, that it be served on the ven dors) as soon as possible. Service shall be in the manner specified in the said Code for service on defendants. The time limit for reply by the purchaser shall be suspended until the expiry of the period notified to the vendor(s) for appearing and replying to the action, which shall correspond to the periods laid down for all defendants by the Code of Civil Procedure and shall run from the date of the service referred to in paragraph 1 of this Article. If the persons against whom eviction proceedings are brought fail to appear in the manner and time specified, the period allowed for replying to the action shall be extended in respect of the purchaser.1 (I0) It should be noted that to date one draft Regulation contains such provisions. (") Much of this section is taken from Weser-Jenard: Manuel de droit international prive Van der Elst, Volume II: Les conflits de juridictions, Bruylant, Brussels, 1985. No. C 189/122 Official Journal of the European Communities 28. 7. 90 The Spanish and Portuguese language editions of the Official Journal of the European Com munities also contain the Spanish and Portuguese versions of the reports by Mr P. Jenard and Professor Dr P. Schlosser (these reports are published in Danish, Dutch, English, French, German and Italian in Official Journal of the European Communities No C 59 of 5 March 1979 and in Greek in Official Journal of the European Communities No C 298 of 24 November 1986) and of the report by Professors D. Evrigenis and K. D. Kerameus (this report is published in Danish, Dutch, English, French, German, Greek and Italian in Official Journal of the European Communities No C 298 of 24 November 1986). The pillars of vocational training Who are they? What is their role? What do they do for vocational training? 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