JUDICIAL COOPERATION IN CIVIL MATTERS >
Jurisdiction, recognition and enforcement of judgments in civil and commercial matters ("Brussels I")
| The Regulation lays down rules governing the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters in the Member States of the EU. |
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ACT
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [ see amending acts ].
SUMMARY
The Regulation lays down rules governing the jurisdiction of the courts in civil and commercial matters. A judgment given in a Member State is to be recognised automatically, no special proceedings being necessary unless recognition is actually contested. A declaration that a foreign judgment is enforceable is to be issued after purely formal checks of the documents supplied. The Regulation lists grounds for non-enforcement, but the courts are not to raise these of their own motion. The Regulation does not cover revenue, customs or administrative matters. It does not apply to:
- the status or legal capacity of natural persons, matrimonial matters, wills and succession;
- bankruptcy;
- social security;
- arbitration.
Rules of jurisdiction
The basic principle is that jurisdiction is to be exercised by the Member State in which the defendant is domiciled, regardless of his or her nationality. Domicile is determined in accordance with the domestic law of the Member State where the matter is brought before a court. If a party is not domiciled in the Member State of the court considering the matter, then, in order to determine whether the party is domiciled in another Member State, the court is to apply the law of that other Member State. In the case of legal persons or firms, domicile is determined by the country where they have their statutory seat, central administration or principal place of business. In the case of trusts, domicile is defined by the judge of the Member State whose court is considering the case; the court applies its own rules of private international law (Article 60(3).
Suing the defendant in another Member State
Although the basic principle is that the courts with jurisdiction are those of the Member State in which the defendant is domiciled, a defendant may in certain circumstances be sued in the courts of another Member State. The Regulation lists areas of jurisdiction where this is so: special jurisdiction, jurisdiction in matters relating to insurance, jurisdiction over consumer contracts, jurisdiction over individual contracts of employment, and exclusive jurisdiction.
The courts' special jurisdiction includes the following (Article 5):
- matters relating to a contract: as a general rule, these will be dealt with by the courts for the place of performance of the obligation in question;
- matters relating to maintenance: as a general rule, these are to be brought before the courts for the place where the maintenance creditor is resident;
- matters relating to liability for wrongful acts - tort, delict or quasi-delict: these will be decided by the courts for the place where the harmful event occurred or may occur.
In matters relating to insurance, an insurer may be sued in the courts of the Member State where the insurer is domiciled or in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled. In respect of liability insurance or insurance of immovable property, the insurer may, in addition, be sued in the courts for the place where the harmful event occurred.
The Regulation also lays down rules on jurisdiction in matters relating to contracts concluded by consumers. "Consumers" are defined as persons who conclude a contract with a professional for a purpose which can be regarded as being outside their own trade or profession. All contracts concluded with a person who pursues commercial or professional activities in the Community are covered, with the exception of contracts of transport, other than those providing for a combination of travel and accommodation for an inclusive price. The consumer is protected in the way described below if the contract is a contract for the sale of goods on instalment credit terms or a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; but, for the consumer to enjoy this protection in other cases, the contract must have been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State. A consumer may bring proceedings either in the courts of the Member State in which the defendant is domiciled or in the courts for the place where the consumer (the plaintiff) is domiciled. But proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled
In matters relating to individual contracts of employment, employees may sue their employer either in the courts of the Member State where the employer is domiciled or in another Member State in the courts for the place where the employee habitually works. An employee who does not habitually work in any one country may sue the employer in the courts for the place where the business which engaged the employee is situated. An employer who is not domiciled in any Member State but has a branch, agency or other establishment in one of the Member States is deemed to be domiciled in that Member State. An employer may bring proceedings against an employee only in the courts for the place where the employee is domiciled.
A court has exclusive jurisdiction, regardless of domicile, in the following cases:
- rights in rem in immovable property or tenancies of immovable property: the courts of the Member State in which the property is situated;
- the validity of the constitution, the nullity or the dissolution of companies or other legal persons, or of the validity of the decisions of their organs: the courts of the Member State in which the legal person has its seat;
- the validity of entries in public registers: the courts of the Member State in which the register is kept;
- the registration or validity of patents, trade marks, designs or other similar rights: the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of a Community instrument or an international convention deemed to have taken place;
- the enforcement of judgments: the courts of the Member State in which the judgment has been or is to be enforced.
If the parties, one or more of whom is domiciled in the Community, have concluded a choice of jurisdiction clause * , the agreed court will have jurisdiction. The Regulation lays down a number of formalities that must be observed in such choice of jurisdiction agreements: the agreement must be in writing, or in a form which accords with practices which the parties have established between themselves or, in international trade or commerce, in a form which accords with a usage of which the parties are aware.
Similarly, there are provisions for rules regarding co-defendants, actions on a warranty or guarantee or other third-party proceedings, counterclaims and matters relating to a contract if the action may be combined with an action relating to rights in immovable property.
The Regulation also provides a mechanism to handle cases pending elsewhere (lis pendens) and related actions.
Recognition and enforcement
A judgment given in a Member State is to be recognised in the other Member States without any special procedure being required. "Judgment" means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance.
A judgment will not be recognised:
- if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
- if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable the defendant to arrange for his or her defence;
- if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;
- if it is irreconcilable with an earlier judgment given in another Member State or in a third state involving the same cause of action and between the same parties.
A court in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.
A judgment is to be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. The parties may appeal against a decision on an application for a declaration of enforceability.
Superseding the Brussels Convention of 1968
The Regulation applies in the Member States of the European Union. It supersedes the Brussels Convention of 1968, which was applicable between the Member States before the Regulation entered into force; but the Convention continues to apply with respect to those territories of Member States which fall within the territorial scope of the Convention and which are excluded from the Regulation pursuant to Article 299 of the Treaty. The Regulation lists in Article 69 a number of conventions and treaties between Member States which it supersedes such as the 1930 Convention between France and Italy on the Enforcement of Judgments in Civil and Commercial Matters and the 1959 Convention between Poland and Hungary on Legal Assistance.
Even after the Regulation entered into force, questions of jurisdiction between Denmark and the other Member States continued to be governed by the Brussels Convention of 1968. This Danish opt-out was based on the 1997 Protocol No 5 on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community [Official Journal C 340 of 10.11.1997]. On 19 October 2005 the Community concluded an agreement ( PDF ) with Denmark on jurisdiction and the recognition and enforcement of judgements that extended the provisions of the Regulation to that country. The agreement was approved on behalf of the Community by a Council Decision of 27 April 2006 [Official Journal L 120 of 5.5.2006]. The Agreement has not yet entered into force, and the Brussels Convention continues to apply to Denmark. The agreement will enter into force on 1 July 2007 [Official Journal L 94 of 4.4.207].
As provided for in Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, these two countries have indicated their wish to take part in the adoption and application of the Regulation.
| Key terms used in the act |
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REFERENCES
| Act | Entry into force | Final date for implementation in the Member States | Official Journal |
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| Regulation (EC) No 44/2001 | 1.3.2002 | - | OJ L 12, 16.1.2001 |
| Amending act(s) | Entry into force | Final date for implementation in the Member States | Official Journal |
|---|---|---|---|
| Regulation (EC) No 1496/2002 | 29.8.2002 | - | OJ L 225, 22.8.2002 |
| Regulation (EC) No 1937/2004 | 17.11.2004 | - | OJ L 334, 10.11.2004 |
| Regulation (EC) No 2245/2004 | 4.1.2005 | - | OJ L 381, 28.12.2004 |
| Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the treaties on which the European Union is founded | 1.5.2004 | - | OJ L 236, 23.9.2003 |
RELATED ACTS
Council Regulation (EC) No 2201/2003 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [Official Journal L 338 of 23.12.2003].
This Regulation applies in civil matters relating to divorce, legal separation and the annulment of marriage, and all aspects of parental responsibility. It does not apply in civil matters relating to maintenance obligations, which are covered by the Regulation discussed here, Regulation (EC) No 44/2001.
Statement by the United Kingdom (Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) [Official Journal C 13 of 16.1.2001].
Council document 7998/2000 of 19 April 2000 states that decisions taken by an authority in Gibraltar must be directly enforced by a court or other enforcement authority in another Member State in accordance with the relevant provisions of the Regulation. In accordance with the Council text cited above, documents containing such decisions will be certified as authentic by the United Kingdom Government/Gibraltar Liaison Unit for EU Affairs of the Foreign and Commonwealth Office, based in London. To this effect, the authority in Gibraltar will make the necessary request to the Unit. Certification will take the form of a note.
For further information please visit the following websites:
- European Commission, Directorate-General (DG) for Justice, Freedom and Security: judicial cooperation in civil matters ;
- European Judicial Network in civil and commercial matters ;
- European Judicial Atlas in civil matters .
Last updated: 4.4.2007