Transcript Judicial Cooperation in civil matters

Judicial Cooperation in
civil matters
Jurisdiction of courts
Brussels I Regulation
The „new Lugano agreement“
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Late in 2007, a Convention was signed on
jurisdiction and the recognition and enforcement
of judgments, with the objective of achieving the
same level of circulation of judgments between
the EU Member States and Switzerland, Norway
and Iceland. On entering into force, it will
replace the Lugano Convention of 1988 on
jurisdiction and enforcement of judgments in
civil and commercial matters. Other Non-EU
Member Countries can accede to the new
Convention under certain conditions.
The importance of international
jurisdiction
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Different attitudes of Europe and USA.
USA (non – continental law) – „fairness“,
„reasonableness“, „forum non conveniens“.
Basic source – US Constitution – Due Process
Clause.
European – formal rules.
Hague convention (worldwide) – not successful.
Yahoo! case
Brussels I Regulation
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Council Regulation n.44/2001 of 22
December 2000
Substitutes the Brussels I Convention
(some changes have been accepted)
Deals with jurisdiction of courts and the
recognition and enforcement of judgments
in civil and commercial matters.
Brussels I Regulation – The
Denmark situation
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In 1997 when creating the Amsterdam Treaty
the member states agreed upon The Protocol on
the position of Denmark – Denmark is not
cooperating within this field.
However in 2005-mutual negotiations led to
coclusions of an international agreement
between the European Community and the
Kingdom of Denmark on jurisdiction and the
recognition and enforcement of judgments in
civil and commercial matters (OJ 16/11/2005
L299 p. 62)
The Brusssels I Regulation
The Denmark situation
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Upon this agreement the provisions of the
Brussels I regulation shall apply to the
relations between the Community and the
Denmark (with the exception given in the
agreement).
Entered into force – 1.7.2007.
The Brussels I Regulation
General Characteristics
76 articles, divided into eight chapters:
I – Scope of application
II – Jurisdiction
III – Recognition and enforcement
IV – Authentic instruments and court settlements
V – General Provisions
VI – Transitional Provisions
VII – Relations with other instruments
VIII- Final Provisions
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The Brussels I Regulation
Scope of application
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Material scope of application – article 1 of the
Regulation – civil and commercial matters
Territorial scope of application – Domicile of the
defendant in a Member state (all without
Denmark)
Temporal scope of application – proceedings
after 1 March 2002
International element (extensive interpretationOwusu case – ECJ Case C 281/02 of 1 March
2005)
The Brussels I Regulation
The material scope of application
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Article 1 of the Regulation : civil and
commercial matters, whatever the nature
of the court or tribunal.
Matters of private law? – Case Volker
Sonntag v. A. Waidman ECJ Case – C172/91 of 21 April 1993
Negative – exemptions in art. 1 para 2
The Brussels I Regulation
Jurisdiction
Tells us the member state whose courts
have jurisdiction in the case.
 Has to be distinguished from internal
jurisdiction – relations between courts of
one member state – regulated by national
law.
e.g. – the regulation -----> Czech courts
Which Czech court? -------> Czech civil
procedure code
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The Brussels I Regulation
Jurisdiction - system
Exlusive jurisdiction
Art. 22
Juridiction agreement
Art.23
Special Jurisdiction
Art. 5-7 – alternative
to the general
provision
Jurisdiction in matters:
Insurence, consumer
contracts, individual
contracts of employment
Art. 8-21
General provision
(Basic rule of
the jurisdiction
Art. 2
The Brussels I Regulation
Jurisdiction – Basic rule
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The Basic rule of the jurisdiction – art. 2
of the Regulation:
„Subject to this Regulation, persons
domiciled in a Member state shall,
whatever their nationality,be sued in that
Member state“.
Actor sequitur forum rei (The claimant
follows the defendant).
The Brussels I Regulation
Special jurisdiction
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Articles 5-7 – alternative jurisdiction to the
jurisdiction based upon the general (basic)
rule in article 2.
Brings the possibility to „opt out“ the most
suitable courts – the possibility to „keep“
the proceedings in „my“ state.
The Brussels I Regulation
Special Jurisdiction
Article 5 –
a)
Place of performance
b)
Maintenance claims
c)
Tort
d)
Civil claims for damages or restitution based
upon act giving rise to criminal proceedings
e)
Disputes arising out of the operation of a
branch, agency or other establishment
f)
Trust operations
g)
Payment of remuneration claimed in respect of
the salvage of a cargo or freight.
The Brussels I Regulation
Special Jurisdiction
Article 5 para 1 – Place of performance
The person domiciled in one Member state, may be sued in another member
state:
In matters relating to a contract – in the courts for the place of performance of
the obligation in question. Place of performance – interpreted directly in the
Regulation.
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Judgment of the Court (Fourth Chamber) of 3 May 2007.
Color Drack GmbH v Lexx International Vertriebs GmbH.
The first indent of Article 5(1)(b) of Council Regulation (EC) No
44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters must
be interpreted as applying where there are several places of delivery
within a single Member State. In such a case, the court having
jurisdiction to hear all the claims based on the contract for the sale
of goods is that for the principal place of delivery, which must be
determined on the basis of economic criteria. In the absence of
determining factors for establishing the principal place of delivery,
the plaintiff may sue the defendant in the court for the place of
delivery of its choice.
The Brussels I Regulation
Special jurisdiction
Art. 5 para 2 – maintenance claims
,,,,, the courts for the place, where the
maintenance creditor is domiciled or
habitually resident,,,,,,,
Example: ECJ Case C- 433/01 of 15 January
Freistaat Bayern v Jan Blijdenstein.
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The Brussels I Regulation
Special jurisdiction
Art. 5 para 3 – tort
……….in matters relating to tort, delict or
quasi delict, in the courts where the
harmful event occured or may occur……
Difficult interpretation of the notion „harmful
event“:
Decision Mines de Potasses d´Alsace –ECJ
Case 21/76 of 30 November 1976
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The Brussels I Regulation
Special Jurisdiction
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Harmful event – other decisions
Kronhofer – ECJ Case 168/2002
Shevil case –ECJ Case 68/93
Brussels I Regulation
Special Jurisdiction
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a)
b)
c)
d)
Art 6 – pending cases
More defendants – in the place, where
any of them is domiciled,
Third party – action on waranty or
guarantee
Counter - claim actions
Matters relating to a contract – may be
combined with action in matters relating
to rights in rem against the same
defendant
Brussels I Regulation
Exclusive Jurisdiction
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Art. 22 sets down rules for jurisdiction
regardless the domicile of the defendant:
E.g. In proceedings which have as their
object rights in rem in immovable property
–the courts of member state where
immovable property is situated,
In proceedings which have as their object
validity of entries in public register, the
courts of the member state, in which
register is kept.
The Brussels I Regulation
Prorogation of jurisdiction
Art.23
Is (in the general principle) not allowed in:
Insurance contracts, consumers contracts,
individual contracts of employment.
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The Brussels I Regulation
Jurisdiction by appearance
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a)
b)
Even if the jurisdiction rules in this
regulation establish jurisdiction of
different courts – courts of another
member state shall have jurisdiction if
the defendant „enters an appearance“.
Does not apply:
In cases of exclusive jurisdiction,
If the defendant appears only to contest
the jurisdiction.