Brussels I

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Cited authorities 6

Cited in

Author	Fausto Pocar
Profession	Professor of International Law and Private International Law at the University of Milan since 1976
Pages	10-49

Fausto Pocar has been Professor of International Law and Private International Law at the University of Milan since 1976, where he also taught European Community law for many years. He lectured at the Hague Academy of International Law in 1983 and delivered the general course on private international law there in 1993.

Regulation (EC) No 44/2001

Fausto Pocar is the author of over 100 publications on private international law and European law, including one of the first university textbooks published in Italy on European Community law (now in its ninth edition), a commentary on the Treaty establishing the European Community and the Treaty on European Union, and various articles on Community employment law, private international commercial and family law and international law on civil procedure, with particular reference to the Brussels and Lugano Conventions.

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I Background

In the process of 'communitarisation' of private international law resulting from the Treaty of Amsterdam, the rules on jurisdiction and the enforcement of judgments in civil and commercial matters - the title of Regulation (EC) No 44/2001 - most certainly play a central role. The predecessor instrument, the Brussels Convention of 27 September 1968 (Brussels I Convention), adopted by the then six EC Member States under Article 220 of the Treaty, covered the same subject matter and entered into force on 1 February 1973 ¹. The Brussels I Convention was the first general multilateral instrument on the recognition of judgments which directly regulated the jurisdiction of the contracting States and then relied on that direct jurisdiction for the enforceability of judgments in other contracting States, thereby ensuring that the exercise of direct and indirect jurisdiction coincide. The Brussels I Convention thus falls into the category of double conventions ². It was amended several times, with the successive waves of enlargement of the European Community ³.
It should be remembered that the substance of the Brussels I Convention went to form the Lugano or 'Parallel' Convention, concluded in Lugano on 16 September 1988 between the EC Member States and other European States (the then EFTA countries) ⁴, albeit with some textual differences, only partly ironed out during subsequent amendments of the Brussels I Convention. In 1997, in order both to fully align the two conventions and to resolve by legislative means certain problems that the Court of Justice of the European Communities had highlighted when interpreting the convention's provisions (see below), the Council decided that the two conventions should be revised simultaneously and instructed a group of experts from the convention contracting States to carry out that task. The revised version was submitted in 1999 ⁵. Because of the entry into force of the Treaty of Amsterdam and the subsequent communitarisation of judicial cooperation in civil matters, the working party's proposed draft was never enacted as a new version of the Brussels I Convention. It was, however, very largely incorporated into the new Commission proposal for a regulation presented to the Council on the basis of Article 61 of the EC Treaty, with the necessary adjustments to the new form of the instrument (regulation) and with the addition of new provisions on consumer contracts ⁶; the text was examined afresh by the Council's Committee on Civil Law Matters. Against this background, the Brussels I RegulationPage 11 was approved on 22 December 2000 and entered into force on 1 March 2002, becoming directly applicable in all Member States by virtue of its publication in the Official Journal of the European Communities ⁷.
The 1968 Brussels Convention was followed by a protocol, which was signed in Luxembourg on 3 June 1971 and entered into force on 1 September 1975 ⁸, giving the Court of Justice jurisdiction to interpret the convention if so requested by national courts of appeal or last resort. The protocol has given rise to a wealth of case-law over the last 30 years, which, by adopting independent legal concepts and limiting reliance on national law by the contracting States' courts, has made for uniform interpretation of the provisions of the convention. Over the years, the Court's rulings have ensured that the provisions of the convention carry a high degree of legal certainty, making it a very reliable instrument for legal practitioners. It was not possible, however, to attach to the Lugano Convention a procedure for ensuring uniform interpretation; nevertheless, national courts in non-EC countries have frequently been guided by Court of Justice case-law, which has made for harmonious solutions among the States concerned. The 1971 protocol does not apply to the Brussels I Regulation. The task of ensuring uniform interpretation of the regulation falls to the Court of Justice under the ordinary procedures for interpreting Community law laid down in Article 234 of the EC Treaty. However, Article 68 of the EC Treaty introduces a questionable provision whereby only those courts and tribunals in a Member State against whose decisions there is no judicial remedy under national law may, in fact, submit questions of interpretation to the Court of Justice ⁹. In any event, it should be remembered that the Court of Justice has already provided interpretations on the basis of the 1971 protocol for those provisions of the regulation which simply reproduce the provisions of the Brussels I Convention, interpretations which remain valid and must continue to be taken into consideration.
The value of a Community instrument like the Brussels I Regulation for bringing about full and harmonious freedom of movement of persons, goods, services and capital in the European Union is inestimable. The need for it was already clearly apparent when the Treaty establishing the European Community was concluded: Article 220 of the Treaty lists the free movement of judgments as an area in which Member States should negotiate agreements. But it is the experience of the Brussels Convention - its success from the moment it entered into force and the impressive body of case-law accompanying its interpretation and application which made it a familiar legal landmark in the life of the European Community - that confirms the significance of the regulation. With the convention, the Community acquired an instrument based on uniform rules of direct jurisdiction, compliance with which did not need review by the court ofPage 12 the State in which enforcement was sought, and on automatic recognition of decisions, which together accelerated the movement of judgments between the EU Member States. The regulation, however, which further simplifies the procedure for declaring a judgment given in one Member State enforceable in another, has the potential to gradually dismantle almost all the obstacles still in the way of the automatic enforceability of judgments throughout the Community. The Brussels I Regulation stands as a milestone on the road to a genuine European judicial area which has dismantled the barriers between Member States. The convention not by chance has been described as a federating instrument, a description which holds even truer of the regulation ¹⁰.

II Scope

1. Territorial Scope

The regulation is applicable in all Member States except Denmark, which under Article 69 of the EC Treaty does not take part in acts adopted pursuant to Title IV of the EC Treaty, whereas it does apply in the United Kingdom and Ireland, which notified their wish to be bound by the regulation. Thus, the Brussels I Convention (in the version preceding the revision process leading to the adoption of the regulation) continues to apply in relations between Denmark and its fellow EC Member States.

2. Material Scope

Despite the broad sweep of its title, covering civil and commercial matters in general, and Article 1(1), according to which it is applicable 'whatever the nature of the court or tribunal', the regulation does provide for various exceptions. These are listed in Article 1(2) as follows: the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; and social security and arbitration. Moreover, the regulation does not apply to revenue, customs or administrative matters.
The Court of Justice has tended to interpret these exceptions widely to cover disputes, which, while not explicitly included among the subjects listed, are nevertheless indirectly related to them. The Court has clearlyPage 13 stated that there is no provision that necessarily links the treatment of an ancillary claim to that of a principal claim; ancillary claims accordingly come within the scope of the convention (and, now, of the regulation) 'according to the subject matter with which they are concerned and not according to the subject matter involved in the principal claim' ¹¹. It should also be remembered that some of the areas outside the regulation's scope are governed by other Community instruments, for example Regulation (EC) No 1346/2000 on insolvency proceedings and Regulation (EC) No 1347/2000 on matrimonial matters and matters of parental responsibility for children of both spouses. Under Article 67 of the regulation, the provisions of such Community instruments take precedence over the regulation itself and may therefore be taken into consideration for the purpose of interpreting matters outside its scope.
The material scope of the regulation is limited not only by the exceptions under Article 1 but also, under Article 71, by provisions on jurisdiction and the enforcement of judgments contained in other conventions 'in relation to particular matters', which remain unaffected. However, even where a national court has applied the rules on jurisdiction of a convention on a particular matter, its decisions are recognised and enforced in the other Member States pursuant to the regulation, unless both the Member State of origin and the Member State addressed are parties to the particular convention. In that case, the conditions for the recognition or enforcement are governed by that convention, but it is still possible to apply the provisions of the regulation which concern the procedure for recognition and enforcement.

3. Temporal Scope

Under Article 66, the Brussels I Regulation applies to legal proceedings instituted and to documents formally drawn up after the regulation's entry into force on 1 March 2002. Article 66(2), however, goes on to specify two situations in which, in proceedings instituted in a Member State before that date, judgments given thereafter will be recognised and enforced in accordance with the regulation. These are (i) if, when the proceedings were instituted in the Member State of origin, that Member State was a party to the Brussels I Convention or the Lugano Convention or (ii) if, in the Member State of origin, jurisdiction was founded on rules which accorded with those provided for in the regulation or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted. This is a transitional provision designed to ensure the maximum continuity between the regulation and conventions applying among Member States and to promote uniformity in the rules applied to the enforcement of judgments throughout the European Union.

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III Direct Jurisdiction

1. General Ground of Jurisdiction

The system of direct jurisdiction embodied in the regulation is based - like that of its predecessor the Brussels I Convention - on a general ground, on a number of special grounds as alternatives to the general ground, on 'protective' jurisdiction, which introduces special rules safeguarding the weaker party, on the prorogation of jurisdiction by the parties, and lastly on exclusive jurisdiction.
The general rule set out in Article 2 is that jurisdiction lies with the courts of the Member State of the defendant's domicile. Persons domiciled in a Member State are sued in the courts of that State whatever their nationality, which has been outlawed as a ground of jurisdiction in accordance with the principle that nationality-based distinctions have no place in the internal market. Persons domiciled in a Member State may be sued in the courts of another Member State on the strict condition that the regulation so provides. In particular, the rules of national jurisdiction listed - albeit partially - in Annex I to the regulation may not be applied against them. It should be noted that while the defendant's domicile in a Member State may determine that jurisdiction lies with that State's courts, it does not at the same time regulate those courts' territorial or material jurisdiction. Both these matters are governed by the Member State's own rules.
The choice of the defendant's domicile as the general ground for jurisdiction came in for criticism in connection with the Brussels I Convention, which provided no uniform definition of domicile but left the matter to the national law of the court seised. Although no problems actually arose when applying the convention, a uniform definition of the domicile of companies or other legal persons is given in the regulation. Thus, if the defendant is a natural person, the court of the Member State seised of the matter determines whether or not he is domiciled there by applying its domestic law; if the court establishes that he is not domiciled in that State, then in order to determine whether the defendant is domiciled in another Member State, the court applies the law of that Member State (Article 59). If the defendant is a company or other legal person, Article 60 lays down that, for the purposes of the regulation, it is domiciled at the place where it has its statutory seat, or central administration or its principal place of business. The grounds of jurisdiction specified in Article 60, which is modelled on Article 48 of the EC Treaty, are alternatives, with two consequences: firstly, that the plaintiff has several alternative forums available as regards the territorial application of the regulation, and, secondly, that, if any one of those grounds is present in a Member State, the regulation isPage 15 applicable, even though the other grounds would determine that the company was domiciled in a third State. This rule is useful less as a tool for settling issues of concurrent jurisdiction than as a means of ensuring that companies with at least one link with the territory of the European Union are brought within the scope of the regulation's uniform rules.
As well as being the general ground for determining jurisdiction (which may be concurrent with other grounds only where the regulation so allows) , the defendant's domicile is also the criterion delimiting the scope of the regulation's direct rules on jurisdiction. Under Article 4, if the defendant is not domiciled in a Member State, jurisdiction is only indirectly regulated by the regulation, by referring to the law of each Member State; the exceptions are the rules on exclusive jurisdiction and the prorogation of jurisdiction (Articles 22 and 23), which apply regardless of domicile. Against defendants domiciled in third countries it is then possible to rely on the national rules of jurisdiction listed in Annex I to the regulation, even when these assert exorbitant jurisdiction. Judgments given in actions based on such national rules are - as will be seen later - recognised in the other Member States on the same conditions as judgments in accordance with the regulation's own rules on jurisdiction. This provision, already found in the Brussels I Convention, has been attacked as discriminating against persons domiciled in third countries ¹²; to remedy this, albeit partially, Article 72 leaves unaffected any existing bilateral agreements with third countries that provide for non-recognition of judgments ¹³.

2. Special Jurisdiction

As an alternative to the general rule that jurisdiction lies with the courts of the Member State of the defendant's domicile, plaintiffs may avail themselves of the special jurisdiction specified in Articles 5 to 7 of the regulation and bring an action in another Member State. This form of jurisdiction covers matters relating to contract, maintenance, tort, civil claims for damages or restitution based on an act giving rise to criminal proceedings, disputes arising out of the operations of a branch or agency, trusts, and certain shipping disputes. Unlike general jurisdiction, the grounds of special jurisdiction in principle ¹⁴ establish both the jurisdiction of the Member State concerned and the local jurisdiction of that State's courts, which may depart from national rules on territorial jurisdiction ¹⁵.
Without entering into the detail of all the above grounds of jurisdiction, it should be mentioned that in matters relating to contract the regulation, like the Brussels I Convention, lays down that a person may be sued 'in the courts for the place of performance of the obligation in question' (ArticlePage 16 5(1)(a)). This provision has raised various problems of interpretation regarding (a) the definition of 'matters relating to contract', (b) the identification of the contractual obligation to be taken into consideration for the purposes of jurisdiction, and (c) the determination of the place of performance.

(a) What are 'matters relating to contract'? Given the differences in Member States' national law on the precise scope of matters relating to contract (for example, culpa in contrahendo - pre-contractual liability - is regarded as contractual in some Member States but non-contractual in others), the Court of Justice has identified the need for an independent concept but has not developed a hard and fast definition. The Court has tended to address the problem pragmatically, ruling out as a matter of course any reference to the national law of the States concerned and providing guidance for determining where a case involves a contractual obligation and where no contract is involved ¹⁶. A dispute as to the existence or the validity of a contract is also considered to be a matter relating to contract ¹⁷. Moreover, when an action is based on both a claim of breach of a contractual duty and a claim of tort, no ancillary jurisdiction may be assumed. Jurisdiction for the first claim has to be determined by reference to Article 5(1) and for the second by reference to Article 5(3) regarding tort, even if this involves the plaintiff in bringing two actions before courts in different States ¹⁸, a situation which can always be avoided by applying the general rule that jurisdiction is vested in the courts of the defendant's domicile ¹⁹.

(b) Which is the obligation in question? The Court of Justice has developed an independent concept regarding the contractual obligation to be taken into account for determining jurisdiction, ruling that it is the obligation which corresponds to the contractual right on which the plaintiff's action is based and the non-performance of which is relied upon to support the plaintiff's claims ²⁰. This solution, which is fully in accordance with Article 5(1), has been criticised for allowing multiple jurisdiction for a single contract. That disadvantage is mitigated by the fact that, where a plaintiff's action is based on more than one obligation under the same contract, the court seised may refer to the principal obligation in order to determine whether it has jurisdiction ²¹. The decision as to whether or not the obligations are to be ranked as equivalent falls to the court seised and should normally be taken on the basis of the law applicable to the contract ²².

(c) Where is the place of performance of the obligation in question? The Court of Justice, which had various available options (including the adoption of an independent concept for the place of performance and reference to the lex fori), chose to refer to the lex causae of the disputedPage 17 obligation, as determined according to the private international law of the court before which the matter is brought ²³. This solution, initially criticised as lacking uniformity and encouraging forum shopping, became more acceptable after the entry into force of the Convention on the Law applicable to Contractual Obligations of 19 October 1980, although the latter did not iron out all the problems involved in recourse to private international law. In order to ensure more uniform application of the place-of-performance rule, the regulation introduces a new provision designed to avoid litigants invoking conflict-of-laws rules. This ties the place of performance of the most common contracts to the underlying facts, specifying that, unless otherwise agreed between the parties, it is 'in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered' and 'in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided' (Article 5(1)(b)). However independent, pragmatic and factually-based it may be in intention ²⁴, this provision can hardly replace conflict-of-laws rules in cases where the parties have not clearly stipulated the place of performance of the obligation in the contract, or where the obligation has already been performed and the place of performance is in dispute. In practice, such cases will involve reverting to the general rule under Article 5(1)(a). The latter applies in any event, in accordance with Article 5(1)(c), to all cases not covered by paragraph (b) (i.e. contracts other than contracts for the sale of goods or the provision of services) and to those contracts as well if the place of performance is in a third State.
In matters of maintenance, the need to protect the maintenance creditor when suing the maintenance debtor resulted in the creditor's domicile or habitual residence being added to the general rule of the defendant's domicile, so providing the maintenance creditor with a choice of alternative forums. Moreover, if the matter is ancillary to proceedings concerning the status of a person, the maintenance creditor may also sue in the court which, according to its own law, has jurisdiction to entertain the proceeding on status, unless that jurisdiction is based solely on the nationality of one of the parties (Article 5(2)).
In matters of tort, delict or quasi-delict, Article 5(3) of the regulation provides that the plaintiff may sue in the courts for the place where the harmful event occurred or may occur. Given the Member States' differing legal approaches to determining where a tort involving more than one State was committed (some being based on the principle of the place of the act or omission giving rise to the damage and some on the place where the damage occurred), the Court of Justice's interpretation of the correspond-Page 18ing provision of the Brussels I Convention was to accept both theories and to allow the plaintiff the option of suing either in the place of the act or in the place of the damage ²⁵. Although this interpretation increases the scope for forum shopping, it should be pointed out that reference to the place of the act theory alone would have overly favoured the wrongdoer, since that place frequently coincides with his domicile, and would have deprived the plaintiff of the option which special jurisdiction is intended to provide. In order to avoid the multiplication of courts with competent jurisdiction, the place where the harmful event occurred is to be understood as being the place where the initial damage manifested itself directly and not that where any subsequent damage to assets may indirectly occur ²⁶. The special problem of damage inflicted via the press, radio or television (defamation), in which an act in one country may cause harmful events in several others, has been solved by the ruling that the victim may bring an action before the courts of the defendant's domicile, which have general jurisdiction in respect of all the harm caused by the defamation, or before the courts of each State in which the plaintiff claims to have suffered injury, which have jurisdiction to rule solely in respect of the harm ascertained in that State ²⁷.
The regulation also provides for special jurisdiction in certain cases on the basis of related actions. As will also be clear from the case-law reviewed so far, the relatedness of actions is not a general ground of jurisdiction; it may only determine jurisdiction in the four cases specified in Article 6 of the regulation, i.e. where there are a number of defendants and the claims are closely connected, in the case of a third party in an action on a warranty or guarantee, where there is a counterclaim arising from a contract on which the original claim was based, and where an action relating to a contract may be combined with an action relating to immovable property.

3. Protective Jurisdiction

For some matters, where contracts usually involve a socioeconomic imbalance between the two sides, the jurisdiction grounds considered so far would often entail a further advantage for the stronger party. That is certainly true of the general forum when the application is made by the relatively weak party, but it also holds true for special jurisdiction, in view of the scope for the stronger party to stipulate the place of performance in the contract. In order to afford the weaker party due judicial protection, the regulation contains jurisdiction rules designed to ensure that proceedings are preferably conducted in courts readily accessible to that party. The matters concerned are insurance contracts, consumer contracts and individual employment contracts.

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In the case of insurance, conferral of jurisdiction on courts more accessible to the insured is achieved by enabling the plaintiff (policyholder, insured or beneficiary) to bring proceedings in the courts for his own domicile as an alternative to the defendant-related general forum. An insurer who is not domiciled in a Member State but has a branch or other place of business in a Member State is deemed, for disputes arising out of its operations, to be domiciled in that Member State (Article 9). In the case of liability insurance or insurance of immovable property, the insurer may also be sued in the courts of the place where the harmful event occurred. The insurer, on the other hand, may only have recourse to the general forum and must bring proceedings in the courts of the domicile of the policyholder, insured or beneficiary.
The same option of submitting a dispute to the courts of their own domicile as an alternative to the defendant-related forum is available to consumers, who may themselves, however, as a rule be sued by the other party only in the courts of the State in which they are domiciled. It should be pointed out that such protection applies only where the party contracting with a consumer pursues commercial or professional activities in the Member State of the consumer's domicile or directs such activities to that State 'by any means'; this provision is designed to include electronic commerce, provided activities are specifically directed at the State in which the consumer is domiciled.
In the case of employment contracts, too, while the employer may only avail himself of the general forum of the defendant's domicile, the employee has a choice between that forum and one closer to him, although this is not that of his domicile but that of the place where he habitually carries out or carried out his work or, for work carried out in more than one country, that of the place where the business which engaged him is or was situated.
The weaker parties in question are also protected from the danger of having a deviating jurisdiction agreement foisted upon them by the other party when concluding the contract. Such an agreement is valid only if it is entered into after the dispute has arisen, if it allows the weaker parties access to further forums besides those specified by the regulation or, for insurance policyholders and consumers, if it confers jurisdiction on the courts of the State in which both parties are domiciled or habitually resident.

4. Prorogation of Jurisdiction

Subject to the limits referred to above, the Brussels I Regulation allows the parties extensive scope to decide for themselves on international jurisdic-Page 20tion. That scope, laid down in Article 23 of the regulation, enabling the parties, one or more of them domiciled in a Member State, to designate a Member State's courts to which to submit any future disputes between them, stems from a gradual process of legislative development. While the Brussels I Convention originally recognised a jurisdiction agreement as valid in form only if in writing or evidenced in writing, the 1978 Accession Convention added the possibility of the agreement being in a form according with an international trade usage of which the parties were or ought to have been aware and which is widely known to and regularly observed by parties to such contracts in the particular trade concerned. To those cases of valid jurisdiction agreements, the 1989 Accession Convention then added the possibility of the agreement being in a form according with practices which the parties have established between themselves, thereby further departing from the original restrictive wording ²⁸. Taking on board the latest convention wording and thus confirming the tendency to favour validity of such an agreement, the regulation also, firstly, made it clear that any communication by electronic means which provides a durable record of the jurisdiction agreement is deemed equivalent to writing and, secondly, relaxed the provision conferring exclusive jurisdiction on the courts designated, by stipulating that jurisdiction is exclusive unless the parties have agreed otherwise. This brings greater flexibility to jurisdiction agreements, making them a working tool more responsive to the needs of international trade, in which parties' self-determination has a key part to play.
Apart from agreement between the parties, prorogation of jurisdiction may also arise from tacit acceptance of a court, if the defendant enters an appearance, without contesting the jurisdiction of the court seised, in his first defence ²⁹. Since this is prorogation after a dispute has arisen, it also, unlike that under ajurisdiction agreement, applies as an exception to protective jurisdiction, being barred only by exclusive jurisdiction.

5. Exclusive Jurisdiction

As mentioned earlier, the set of rules by which the regulation directly governs jurisdiction also includes some bases for exclusive jurisdiction, to apply in all cases, even where the defendant is domiciled in a non-EU State. Those jurisdiction bases are laid down in addition to jurisdiction under a prorogation agreement between the parties, in so far as such jurisdiction is exclusive. In particular, they involve proceedings principally ³⁰ concerned with rights in rem in immovable property or long-term tenancies of immovable property, for which jurisdiction lies with the courts of the Member State in which the property is situated, with valid constitution or dissolution of companies or other legal persons, for which their seat ³¹ is the point of reference, with entries inPage 21 public registers and registration or validity of patents, for which jurisdiction lies with the courts in the State of registration, and with enforcement of judgments, which comes within the jurisdiction of the courts in the State of enforcement. The exclusive nature of those jurisdiction rules is warranted on account of the dispute's particularly close link with a Member State, while leaving open the question of whether such exclusive jurisdiction also has the effect of establishing that the court seised does not have jurisdiction when the link specified is with a third State ³².

6. Jurisdiction to Grant Interim Relief

The jurisdiction criteria laid down in the regulation come into play as regards interim relief, too, in that the courts with jurisdiction as to the substance of the matter also have jurisdiction to order provisional, including protective, measures. Under Article 31, however, in addition to the courts with jurisdiction as to the substance, jurisdiction may also be available under the law of any Member State to whose courts a measure is applied for, even if another Member State's courts have jurisdiction as to the substance. The reference to Member States' national law is general in scope, but presupposes an actual link between measures applied for and territorial jurisdiction of the State applied to ³³, so that jurisdiction in essence lies with the courts in the State of location of the property on which a protective measure is to be imposed.

7. Coordination of Jurisdiction

The availability of alternative forums for many disputes covered by the regulation means that proceedings on the same claim may be brought and conducted concurrently in courts in different Member States, with the risk that those courts arrive at mutually incompatible judgments. Proper administration of justice requires that that risk be kept to a minimum, with the avoidance, as far as possible, of concurrent proceedings conducted in parallel in different Member States. In trying to find a clear, effective way of resolving cases of lis pendens or related actions, the draftsmen of the regulation, as of the convention before it, were faced with considerable differences between national legal systems, beginning with some Member States' arrangement whereby proceedings already pending take precedence and others' application of the forum non conveniens approach. Even with the latter approach generally ruled out and with it stipulated that in lis pendens cases any court other than the court first seised must decline jurisdiction in favour of the court first seised, where that court's jurisdiction is established, there remained fundamental differences as to the time at which proceedings become pending, since some systems make referencePage 22 to the lodging of the document instituting proceedings with the court and others to its service on the defendant. The inadequacy of referring to the national law of each of the States concerned, as suggested by the Court of Justice ³⁴, as a satisfactory way of resolving the problem prompted attempts to arrive at separate definitions, albeit based on a compromise between Member States' systems. Under Article 30 of the regulation, therefore, if proceedings become pending upon lodging of the document instituting them with a court, the court is deemed to be seised at that time, provided the plaintiff has not subsequently failed to take all necessary steps for service on the defendant; if proceedings become pending upon service on the defendant, on the other hand, the court is deemed to be seised when the document instituting them is received by the authority responsible for service, provided the plaintiff has not subsequently failed to take all necessary steps to have the document lodged with the court. For all its apparent complexity, this arrangement is designed to reduce the potential advantage to either party of referring to national systems, while still conferring jurisdiction on the court first seised.
Some flexibility is advisable, however, in the case of related actions. Here, any court other than the court first seised is merely given the option of staying proceedings, but not required to do so. That other court may also decline jurisdiction, upon application by either party, if the court first seised has jurisdiction over the actions in question and its law allows their consolidation. Without bringing the greater flexibility that reference to the forum non conveniens principle would, the coordination provided for is nevertheless based on careful consideration by courts other than the court first seised ³⁵.

IV Recognition and Enforcement of Judgments

While the rules governing jurisdiction made the Brussels I Convention, as they now make the regulation, the first general instrument to deal with this, Chapter III of the regulation, concerning recognition and enforcement of judgments, is no less of a new departure in comparison with previous instruments. It, too, stems from developments in the convention provisions, which it further builds upon with the aim of increasingly easy, automatic giving of effect to judgments handed down in other Member States.
Like the convention before it, the regulation first of all allows for recognition in Member States of all judgments given by courts in other MemberPage 23 States within its scope as to subject matter, regardless of what judgments are called and of the final or provisional nature of their content. Article 32 leaves no room for doubt on that score, nor as to the applicability of the regulation's provisions, which do not require any consideration of the original court's jurisdiction. Even judgments given on the basis of jurisdiction criteria under national law, as only indirectly referred to in Article 4 of the regulation, in the case of defendants domiciled in a third State, will therefore qualify for free movement in other Member States.
The regulation continues to distinguish between recognition and enforcement of foreign judgments. Recognition is automatic, without any special procedure unless in dispute, under the principle of mutual trust between Member States' judicial systems; only for enforcement is any procedure required, albeit a simplified one. The distinction is, of course, limited in effect, since it presupposes an undisputed foreign judgment, but does have its significance in coordinating Member States' jurisdiction. As pointed out by the Court of Justice in one of its earliest judgments, the automatic res judicata effect entailed by recognition, under Article 33, means that any further proceedings involving the same cause of action are barred in other Member States ³⁶. Nor is the significance of the invocability of recognition as an incidental issue in a court in any Member State, even one other than that having jurisdiction for enforcement, to be underestimated.
The grounds for non-recognition are also fairly limited and have been further reduced by the regulation. They concern a manifest clash with public policy in the Member State in which recognition is sought, defective service of the document instituting proceedings on the defendant, such that he was unable to arrange for his defence, and irreconcilability of the judgment with another judgment given in the State in which recognition is sought, or even in another Member State or a third State, provided that judgment is recognised in the State in which recognition is sought. These circumstances should arise increasingly rarely, both as legislative harmonisation makes for growing uniformity of public policy within Europe, including in procedural matters, and as conflicting judgments ought normally to be prevented by operation of the rules on lis pendens and related actions.
The only real obstacle which the regulation still places in the way of recognition seems rather to be that, while review of the original court's jurisdiction has generally been done away with, it still stands in cases involving protective jurisdiction in respect of insurance and consumer contracts or exclusive jurisdiction. Retention of review is of questionable value and somewhat at variance with the reasons for eliminating review of the foreign court's jurisdiction generally, i.e. mutual trust in the administration of justice, as asserted in the regulation and reflected in the procedural safeguards for de-Page 24fendants and the exclusion of any review as to the substance of judgments ³⁷. It should also be pointed out that the regulation does not allow for review of jurisdiction in the case of individual employment contracts, so as not to jeopardise an employee's right to secure recognition of a judgment in his favour, obtained in another Member State ³⁸.
The regulation appears even more of a new departure as regards enforcement of foreign judgments. Without going so far as to remove the need for any procedure, the declaration of enforceability involves a procedure further simplified from that under the Brussels I Convention, so as to become virtually automatic, with purely formal scrutiny of the documents produced by the party applying for it. These are confined to a copy of the judgment which satisfies the conditions necessary to establish its authenticity and a certificate issued, using a form annexed to the regulation ³⁹, by the court or competent authority in the State in which the judgment was given. Having ascertained that the documents are in order, the court declares the judgment enforceable, upon application by any interested party, without considering recognition requirements under the regulation, in the absence of the party against whom enforcement is sought, who is not allowed to make any submissions at this stage of proceedings.
Only once the declaration of enforceability has been served on the other party may he, within one month ⁴⁰, appeal against it on the grounds for non-recognition under the regulation ⁴¹. The court ⁴² must give its decision without delay on that appeal, which is dealt with under the rules governing adversarial procedure. The regulation thus follows the pattern of the summary procedure previously laid down in the Brussels I Convention, with the further simplification that scrutiny as to recognition requirements, performable by the court twice under the convention, first for a declaration of enforceability and then for an appeal against it, is confined to the second stage, if the party against whom enforcement is sought so requests by appealing. Where he does not, the foreign judgment is thus enforced without any scrutiny as to recognition requirements ⁴³. The elimination of scrutiny at the first stage therefore has significant implications and makes for automatic giving of effect to foreign judgments.

V Concluding Remarks

As pointed out at the beginning of this account of it, the Brussels I Regulation represents a key instrument for the establishment of a European judicial area. Not only does it cover a wide range of civil and commercial matters, following on from the Brussels I Convention, but it has been able to draw on the experi-Page 25ence built up over decades of applying the convention, as witnessed by thousands of national judgments and well over 100 interpretative rulings by the Court of Justice, to come up with more advanced ways of simplifying formalities and procedures for judgments given in one Member State to travel and to take effect in other Member States. Availability of direct jurisdiction rules and of arrangements for coordinating jurisdiction of Member States' courts pursuant to them, increasingly based on common definitions rather than on Member States' national law, brings progressive harmonisation of the exercise of civil jurisdiction in Member States in the case of defendants domiciled in other Member States, to which might be added more harmonised rules on the exercise of jurisdiction for defendants domiciled in non-member countries. Even though not yet complete, gradual elimination of review of the source Member State's jurisdiction in other Member States in which judgments are to be enforced, as well as more generally of any requirements for recognition of judgments and of any procedural formalities, follows the approach of making the source State responsible for establishing compliance with principles laid down by law in issuing judgments and of having those judgments automatically recognised in other States ⁴⁴. Incorporation of the regulation's provisions into a forthcoming revised version of the Lugano Convention with certain third States, which might be joined by others, including non-European ones ⁴⁵, is in addition a prerequisite if, besides helping to establish a European judicial area, those provisions are also to serve as a point of reference in regulating relations between persons domiciled in the EU and in third States.

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

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The Council of the European Union

Having regard to the Treaty establishing the European Community, and in particular Article 61(c) and Article 67(1) thereof,

Having regard to the proposal from the Commission ⁴⁶,

Having regard to the opinion of the European Parliament ⁴⁷,

Having regard to the opinion of the Economic and Social Committee ⁴⁸,

Whereas:

(1) The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. In order to establish progressively such an area, the Community should adopt, amongst other things, the measures relating to judicial cooperation in civil matters which are necessary for the sound operation of the internal market.

(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.

(3) This area is within the field of judicial cooperation in civil matters within the meaning of Article 65 of the Treaty.

(4) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. This Regulation confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.

(5) On 27 September 1968 the Member States, acting under Article 293, fourth indent, of the Treaty, concluded the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by Conventions on the Accession of the New Member States to that Convention (hereinafter referred to as the 'Brussels Convention') ⁴⁹. On 16 September 1988 Member States and EFTA States concluded the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which is a parallel Convention to the 1968 Brussels Convention. Work has been undertaken for the revision of those Conventions, and the Council has approved the content of the revised texts. Continuity in the results achieved in that revision should be ensured.

(6) In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable.

(7) The scope of this Regulation must cover all the main civil and commercial matters apart from certain well-defined matters.

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(8) There must be a link between proceedings to which this Regulation applies and the territory of the Member States bound by this Regulation. Accordingly common rules on jurisdiction should, in principle, apply when the defendant is domiciled in one of those Member States.

(9) A defendant not domiciled in a Member State is in general subject to national rules of jurisdiction applicable in the territory of the Member State of the court seised, and a defendant domiciled in a Member State not bound by this Regulation must remain subject to the Brussels Convention.

(10) For the purposes of the free movement of judgments, judgments given in a Member State bound by this Regulation should be recognised and enforced in another Member State bound by this Regulation, even if the judgment debtor is domiciled in a third State.

(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

(12) In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.

(13) In relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for.

(14) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.

(15) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation that time should be defined autonomously.

(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.

(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.

(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.

(19) Continuity between the Brussels Convention and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation of the Brussels Convention by the Court of Justice of the European Communities and the 1971 Protocol⁵⁰ should remain applicable also to cases already pending when this Regulation enters into force.

(20) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, have given notice of their wish to take part in the adoption and application of this Regulation.

(21) Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the TreatyPage 28 establishing the European Community, is not participating in the adoption of this Regulation, and is therefore not bound by it nor subject to its application.

(22) Since the Brussels Convention remains in force in relations between Denmark and the Member States that are bound by this Regulation, both the Convention and the 1971 Protocol continue to apply between Denmark and the Member States bound by this Regulation.

(23) The Brussels Convention also continues to apply to the territories of the Member States which fall within the territorial scope of that Convention and which are excluded from this Regulation pursuant to Article 299 of the Treaty.

(24) Likewise for the sake of consistency, this Regulation should not affect rules governing jurisdiction and the recognition of judgments contained in specific Community instruments.

(25) Respect for international commitments entered into by the Member States means that this Regulation should not affect conventions relating to specific matters to which the Member States are parties.

(26) The necessary flexibility should be provided for in the basic rules of this Regulation in order to take account of the specific procedural rules of certain Member States. Certain provisions of the Protocol annexed to the Brussels Convention should accordingly be incorporated in this Regulation.

(27) In order to allow a harmonious transition in certain areas which were the subject of special provisions in the Protocol annexed to the Brussels Convention, this Regulation lays down, for a transitional period, provisions taking into consideration the specific situation in certain Member States.

(28) No later than five years after entry into force of this Regulation the Commission will present a report on its application and, if need be, submit proposals for adaptations.

(29) The Commission will have to adjust Annexes I to IV on the rules of national jurisdiction, the courts or competent authorities and redress procedures available on the basis of the amendments forwarded by the Member State concerned; amendments made to Annexes V and VI should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ⁵¹,

Has Adopted this Regulation

Chapter I Scope

Article 1

This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.
The Regulation shall not apply to:

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;

(d) arbitration.
In this Regulation, the term 'Member State' shall mean Member States with the exception of Denmark.

Chapter II Jurisdiction

Section 1 General Provisions

Article 2

Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.

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Article 3

Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.
In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them.

Article 4

If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State.
As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.

Section 2 Special Jurisdiction

Article 5

A person domiciled in a Member State may, in another Member State, be sued:

(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

- in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,

(c) if subparagraph (b) does not apply then subparagraph (a) applies;
in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;
in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;
as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;
as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled;
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 which the cargo or freight in question:

(a) has been arrested to secure such payment, or

(b) could have been so arrested, but bail or other security has been given;

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

Article 6

A person domiciled in a Member State may also be sued:

where he is one of a number of defendants, in the courts for the place where any one of them is domiciled,Page 30 provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;
as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;
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;
in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Member State in which the property is situated.

Article 7

Where by virtue of this Regulation a court of a Member State has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that Member State, shall also have jurisdiction over claims for limitation of such liability.

Section 3 Jurisdiction in Matters Relating to Insurance

Article 8

In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5.

Article 9

An insurer domiciled in a Member State may be sued:

(a) in the courts of the Member State where he is domiciled, or

(b) 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,

(c) if he is a co-insurer, in the courts of a Member State in which proceedings are brought against the leading insurer.
An insurer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.

Article 10

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 same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 11

In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.
Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.
If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

Article 12

Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the Member State in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.
The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 13

The provisions of this Section may be departed from only by an agreement:

which is entered into after the dispute has arisen, orPage 31
which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section, or
which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which has the effect of conferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State, or
which is concluded with a policyholder who is not domiciled in a Member State, except in so far as the insurance is compulsory or relates to immovable property in a Member State, or
which relates to a contract of insurance in so far as it covers one or more of the risks set out in Article 14.

Article 14

The following are the risks referred to in Article 13(5):

any loss of or damage to:

(a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;

(b) goods in transit other than passengers' baggage where the transit consists of or includes carriage by such ships or aircraft;
any liability, other than for bodily injury to passengers or loss of or damage to their baggage:

(a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1 (a) in so far as, in respect of the latter, the law of the Member State in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;

(b) for loss or damage caused by goods in transit as described in point 1(b);
any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire;
any risk or interest connected with any of those referred to in points 1 to 3; notwithstanding points 1 to 4, all large risks' as defined in Council Directive 73/239/EEC⁵², as amended by Council Directives 88/357/EEC⁵³ and 90/618/EEC⁵⁴, as they may be amended.

Section 4 Jurisdiction Over Consumer Contracts

Article 15

In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:

(a) it is a contract for the sale of goods on instalment credit terms; or

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has 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 or to several States including that Member State, and the contract falls within the scope of such activities.
Where a consumer enters into a contract with a party who is not domiciled in the Member State but has a branch, agency or other establishment in one of the Member States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.
This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

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Article 16

A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.
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.
This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 17

The provisions of this Section may be departed from only by an agreement:

which is entered into after the dispute has arisen; or
which allows the consumer to bring proceedings in courts other than those indicated in this Section; or
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 habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State.

Section 5 Jurisdiction Over Individual Contracts of Employment

Article 18

In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5.
Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.

Article 19

An employer domiciled in a Member State may be sued:

in the courts of the Member State where he is domiciled; or
in another Member State:

(a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so, or

(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

Article 20

An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.
The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 21

The provisions of this Section may be departed from only by an agreement on jurisdiction:

which is entered into after the dispute has arisen; or
which allows the employee to bring proceedings in courts other than those indicated in this Section.

Section 6 Exclusive Jurisdiction

Article 22

The following courts shall have exclusive jurisdiction, regardless of domicile:

in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.

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However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State;
in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;
in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept;
in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, 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.

Without prejudice to the jurisdiction of the European Patent Office under the Convention on the Grant of European Patents, signed at Munich on 5 October 1973, the courts of each Member State shall have exclusive jurisdiction, regardless of domicile, in proceedings concerned with the registration or validity of any European patent granted for that State;
in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced.

Section 7 Prorogation of Jurisdiction

Article 23

If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing; or

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'.
Where such an agreement is concluded by parties, none of whom is domiciled in a Member State, the courts of other Member States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.
The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.
Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.

Article 24

Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

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Section 8 Examination as to Jurisdiction and Admissibility

Article 25

Where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction.

Article 26

Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.
The court shall stay the proceedings so long as it is not 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 for his defence, or that all necessary steps have been taken to this end.
Article 19 of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters ⁵⁵ shall apply instead of the provisions of paragraph 2 if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to this Regulation.
Where the provisions of Regulation (EC) No 1348/2000 are not applicable, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Convention.

Section 9 Lis Pendens - Related Actions

Article 27

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.

Article 28

Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.
Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.
For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Article 29

Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.

Article 30

For the purposes of this Section, a court shall be deemed to be seised:

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or
if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

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Section 10 Provisional, Including Protective, Measures

Article 31

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.

Chapter III Recognition and Enforcement

Article 32

For the purposes of this Regulation, '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, as well as the determination of costs or expenses by an officer of the court.

Section 1 Recognition

Article 33

A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.
If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 34

A judgment shall not be recognised:

if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
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, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.

Article 35

Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.
In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.
Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.

Article 36

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37

A court of a Member State 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 court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal.

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Section 2 Enforcement

Article 38

A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
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 interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 39

The application shall be submitted to the court or competent authority indicated in the list in Annex II.
The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.

Article 40

The procedure for making the application shall be governed by the law of the Member State in which enforcement is sought.
The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the Member State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.
The documents referred to in Article 53 shall be attached to the application.

Article 41

The judgment shall be declared enforceable immediately on completion of the formalities in Article 5 3 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 42

The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State in which enforcement is sought.
The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.

Article 43

The decision on the application for a declaration of enforceability may be appealed against by either party.
The appeal is to be lodged with the court indicated in the list in Annex III.
The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.
If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not domiciled in any of the Member States.
An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

Article 44

The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.

Article 45

The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.
Under no circumstances may the foreign judgment be reviewed as to its substance.

Article 46

The court with which an appeal is lodged under Article 4 3 or Article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.
Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

Page 37
The court may also make enforcement conditional on the provision of such security as it shall determine.

Article 47

When a judgment must be recognised in accordance with this Regulation, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State requested without a declaration of enforceability under Article 41 being required.
The declaration of enforceability shall carry with it the power to proceed to any protective measures.
During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

Article 48

Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.
An applicant may request a declaration of enforceability limited to parts of a judgment.

Article 49

A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin.

Article 50

An applicant who, in the Member State of origin has benefited from complete or partial legal aid or exemption from costs or expenses, shall be entitled, in the procedure provided for in this Section, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State addressed.

Article 51

No security, bond or deposit, however described, shall be required of a party who in one Member State applies for enforcement of a judgment given in another Member State on the ground that he is a foreign national or that he is not domiciled or resident in the State in which enforcement is sought.

Article 52

In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the Member State in which enforcement is sought.

Section 3 Common Provisions

Article 53

A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity.
A party applying for a declaration of enforceability shall also produce the certificate referred to in Article 54, without prejudice to Article 55.

Article 54

The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation.

Article 55

If the certificate referred to in Article 54 is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production.
If the court or competent authority 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 Member States.

Article 56

No legalisation or other similar formality shall be required in respect of the documents referred to in Article 53 or Article 55(2), or in respect of a document appointing a representative ad litem.

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Chapter IV Authentic Instruments and Court Settlements

Article 57

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed.
Arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall also be regarded as authentic instruments within the meaning of paragraph 1.
The instrument produced must satisfy the conditions necessary to establish its authenticity in the Member State of origin.
Section 3 of Chapter III shall apply as appropriate. The competent authority of a Member State where an authentic instrument was drawn up or registered shall issue, at the request of any interested party, a certificate using the standard form in Annex VI to this Regulation.

Article 58

A settlement which has been approved by a court in the course of proceedings and is enforceable in the Member State in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments. The court or competent authority of a Member State where a court settlement was approved shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation.

Chapter V General Provisions

Article 59

In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law.
If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State.

Article 60

For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:

(a) statutory seat, or

(b) central administration, or

(c) principal place of business.
For the purposes of the United Kingdom and Ireland 'statutory seat' means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.
In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law.

Article 61

Without prejudice to any more favourable provisions of national laws, persons domiciled in a Member State who are being prosecuted in the criminal courts of another Member State of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person. However, the court seised of the matter may order appearance in person; in the case of failure to appear, a judgment given in the civil action without the person concerned having had the opportunity to arrange for his defence need not be recognised or enforced in the other Member States.

Article 62

In Sweden, in summary proceedings concerning orders to pay (betalningsfrelggande) and assistance (handrckning), the expression 'court' includes the 'Swedish enforcement service' (kronofogdemyndighet).

Article 63

A person domiciled in the territory of the Grand Duchy of Luxembourg and sued in the court of another Member State pursuant to Article 5(1) may refuse to submit to the jurisdiction of that court if the final place of delivery of the goods or provision of the services is in Luxembourg.

Page 39
Where, under paragraph 1, the final place of delivery of the goods or provision of the services is in Luxembourg, any agreement conferring jurisdiction must, in order to be valid, be accepted in writing or evidenced in writing within the meaning of Article 23(l)(a).
The provisions of this Article shall not apply to contracts for the provision of financial services.
The provisions of this Article shall apply for a period of six years from entry into force of this Regulation.

Article 64

In proceedings involving a dispute between the master and a member of the crew of a seagoing ship registered in Greece or in Portugal, concerning remuneration or other conditions of service, a court in a Member State shall establish whether the diplomatic or consular officer responsible for the ship has been notified of the dispute. It may act as soon as that officer has been notified.
The provisions of this Article shall apply for a period of six years from entry into force of this Regulation.

Article 65

The jurisdiction specified in Article 6(2), and Article 11 in actions on a warranty of guarantee or in any other third party proceedings may not be resorted to in Germany and Austria. Any person domiciled in another Member State may be sued in the courts:

(a) of Germany, pursuant to Articles 68 and 72 to 74 of the Code of Civil Procedure (Zivilprozessordnung) concerning third-party notices,

(b) of Austria, pursuant to Article 21 of the Code of Civil Procedure (Zivilprozessordnung) concerning third-party notices.
Judgments given in other Member States by virtue of Article 6(2), or Article 11 shall be recognised and enforced in Germany and Austria in accordance with Chapter III. Any effects which judgments given in these States may have on third parties by application of the provisions in paragraph 1 shall also be recognised in the other Member States.

Chapter VI Transitional Provisions

Article 66

This Regulation shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after the entry into force thereof.
However, if the proceedings in the Member State of origin were instituted before the entry into force of this Regulation, judgments given after that date shall be recognised and enforced in accordance with Chapter III,

(a) if the proceedings in the Member State of origin were instituted after the entry into force of the Brussels or the Lugano Convention both in the Member State or origin and in the Member State addressed;

(b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Chapter II or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.

Chapter VII Relations With Other Instruments

Article 67

This Regulation shall not prejudice the application of provisions governing jurisdiction and the recognition and enforcement of judgments in specific matters which are contained in Community instruments or in national legislation harmonised pursuant to such instruments.

Article 68

This Regulation shall, as between the Member States, supersede the Brussels Convention, except as regards the territories of the Member States which fall within the territorial scope of that Convention and which are excluded from this Regulation pursuant to Article 299 of the Treaty.
In so far as this Regulation replaces the provisions of the Brussels Convention between Member States, any reference to the Convention shall be understood as a reference to this Regulation.

Article 69

Subject to Article 66(2) and Article 70, this Regulation shall, as between Member States, supersede the following conventions and treaty concluded between two or more of them:

- the Convention between Belgium and France on Jurisdiction and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments, signed at Paris on 8 July 1899,

Page 40

- the Convention between Belgium and the Netherlands on Jurisdiction, Bankruptcy, and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments, signed at Brussels on 28 March 1925,

- the Convention between France and Italy on the Enforcement of Judgments in Civil and Commercial Matters, signed at Rome on 3 June 1930,

- the Convention between Germany and Italy on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed at Rome on 9 March 1936,

- the Convention between Belgium and Austria on the Reciprocal Recognition and Enforcement of Judgments and Authentic Instruments relating to Maintenance Obligations, signed at Vienna on 25 October 1957,

- the Convention between Germany and Belgium on the Mutual Recognition and Enforcement of Judgments, Arbitration Awards and Authentic Instruments in Civil and Commercial Matters, signed at Bonn on 30 June 1958,

- the Convention between the Netherlands and Italy on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed at Rome on 17 April 1959,

- the Convention between Germany and Austria on the Reciprocal Recognition and Enforcement of Judgments, Settlements and Authentic Instruments in Civil and Commercial Matters, signed at Vienna on 6 June 1959,

- the Convention between Belgium and Austria on the Reciprocal Recognition and Enforcement of Judgments, Arbitral Awards and Authentic Instruments in Civil and Commercial Matters, signed at Vienna on 16 June 1959,

- the Convention between Greece and Germany for the Reciprocal Recognition and Enforcement of Judgments, Settlements and Authentic Instruments in Civil and Commercial Matters, signed in Athens on 4 November 1961,

- the Convention between Belgium and Italy on the Recognition and Enforcement of Judgments and other Enforceable Instruments in Civil and Commercial Matters, signed at Rome on 6 April 1962,

- the Convention between the Netherlands and Germany on the Mutual Recognition and Enforcement of Judgments and Other Enforceable Instruments in Civil and Commercial Matters, signed at The Hague on 30 August 1962,

- the Convention between the Netherlands and Austria on the Reciprocal Recognition and Enforcement of Judgments and Authentic Instruments in Civil and Commercial Matters, signed at The Hague on 6 February 1963,

- the Convention between France and Austria on the Recognition and Enforcement of Judgments and Authentic Instruments in Civil and Commercial Matters, signed at Vienna on 15 July 1966,

- the Convention between Spain and France on the Recognition and Enforcement of Judgment Arbitration Awards in Civil and Commercial Matters, signed at Paris on 28 May 1969,

- the Convention between Luxembourg and Austria on the Recognition and Enforcement of Judgments and Authentic Instruments in Civil and Commercial Matters, signed at Luxembourg on 29 July 1971,

- the Convention between Italy and Austria on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, of Judicial Settlements and of Authentic Instruments, signed at Rome on 16 November 1971,

- the Convention between Spain and Italy regarding Legal Aid and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed at Madrid on 22 May 1973,

- the Convention between Finland, Iceland, Norway, Sweden and Denmark on the Recognition and Enforcement of Judgments in Civil Matters, signed at Copenhagen on 11 October 1977,

- the Convention between Austria and Sweden on the Recognition and Enforcement of Judgments in Civil Matters, signed at Stockholm on 16 September 1982,

- the Convention between Spain and the Federal Republic of Germany on the Recognition and Enforcement of Judgments, Settlements and Enforceable Authentic Instruments in Civil and Commercial Matters, signed at Bonn on 14 November 1983,

- the Convention between Austria and Spain on the Recognition and Enforcement of Judgments, Settlements and Enforceable Authentic Instruments in Civil and Commercial Matters, signed at Vienna on 17 February 1984,

- the Convention between Finland and Austria on the Recognition and Enforcement of Judgments in Civil Matters, signed at Vienna on 17 November 1986, and

Page 41

- the Treaty between Belgium, the Netherlands and Luxembourg in Jurisdiction, Bankruptcy, and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments, signed at Brussels on 24 November 1961, in so far as it is in force.

Article 70

The Treaty and the Conventions referred to in Article 69 shall continue to have effect in relation to matters to which this Regulation does not apply.
They shall continue to have effect in respect of judgments given and documents formally drawn up or registered as authentic instruments before the entry into force of this Regulation.

Article 71

This Regulation shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.
With a view to its uniform interpretation, paragraph 1 shall be applied in the following manner:

(a) this Regulation shall not prevent a court of a Member State, which is a party to a convention on a particular matter, from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another Member State which is not a party to that convention. The court hearing the action shall, in any event, apply Article 26 of this Regulation;

(b) judgments given in a Member State by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other Member States in accordance with this Regulation.

Where a convention on a particular matter to which both the Member State of origin and the Member State addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. In any event, the provisions of this Regulation which concern the procedure for recognition and enforcement of judgments may be applied.

Article 72

This Regulation shall not affect agreements by which Member States undertook, prior to the entry into force of this Regulation pursuant to Article 59 of the Brussels Convention, not to recognise judgments given, in particular in other Contracting States to that Convention, against defendants domiciled or habitually resident in a third country where, in cases provided for in Article 4 of that Convention, the judgment could only be founded on a ground of jurisdiction specified in the second paragraph of Article 3 of that Convention.

Chapter VIII Final Provisions

Article 73

No later than five years after the entry into force of this Regulation, the Commission shall present to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, if need be, by proposals for adaptations to this Regulation.

Article 74

The Member States shall notify the Commission of the texts amending the lists set out in Annexes I to IV. The Commission shall adapt the Annexes concerned accordingly.
The updating or technical adjustment of the forms, specimens of which appear in Annexes V and VI, shall be adopted in accordance with the advisory procedure referred to in Article 75(2).

Article 75

The Commission shall be assisted by a committee.
Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.
The Committee shall adopt its rules of procedure.

Article 76

This Regulation shall enter into force on 1 March 2002.

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This Regulation is binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, 22 December 2000.

For the Council

The President

Pierret

Annex I

Page 43

Rules of jurisdiction referred to in Article 3(2) and Article 4(2)

The rules of jurisdiction referred to in Article 3(2) and Article 4(2) are the following:

- in Belgium: Article 15 of the Civil Code (Code civil Burgerlijk Wetboek) and Article 638 of the Judicial Code (Code judidaire/Gerechtelijk Wetboek);

- in Germany: Article 23 of the Code of Civil Procedure (Zivilprozessordnung),

- in Greece, Article 40 of the Code of Civil Procedure (Kdikas Politiks Dikonomas);

- in France: Articles 14 and 15 of the Civil Code (Code civil),

- in Ireland: the rules which enable jurisdiction to be founded on the document instituting the proceedings having been served on the defendant during his temporary presence in Ireland,

- in Italy: Articles 3 and 4 of Act 218 of 31 May 1995,

- in Luxembourg: Articles 14 and 15 of the Civil Code (Code civil),

- in the Netherlands: Articles 126(3) and 127 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering),

- in Austria: Article 99 of the Court Jurisdiction Act (Jurisdiktionsnorm),

- in Portugal: Articles 65 and 65A of the Code of Civil Procedure (Codigo de Processo Civil) and Article 11 of the Code of Labour Procedure (Codigo de Processo de Trabalho),

- in Finland: the second, third and fourth sentences of the first paragraph of Section 1 of Chapter 10 of the Code of Judicial Procedure (oikeudenkaymiskaari/rattegdngsbalken),

- in Sweden: the first sentence of the first paragraph of Section 3 of Chapter 10 of the Code of Judicial Procedure (rttergangsbalken),

- in the United Kingdom: rules which enable jurisdiction to be founded on:

(a) the document instituting the proceedings having been served on the defendant during his temporary presence in the United Kingdom; or

(b) the presence within the United Kingdom of property belonging to the defendant; or

Page 44

Annex II

The courts or competent authorities to which the application referred to in Article 39 may be submitted are the following:

- in Belgium, the 'tribunal de premiere instance' or 'rechtbank van eerste aanleg' or 'erstinstanzliches Gericht',

- in Germany, the presiding judge of a chamber of the 'Landgericht',

- in Greece, the 'Monomels Protodikeo',

- in Spain, the 'Juzgado de Primera Instanda',

- in France, the presiding judge of the 'tribunal de grande instance',

- in Ireland, the High Court,

- in Italy, the 'Corte d'appello',

- in Luxembourg, the presiding judge of the 'tribunal d'arrondissement',

- in the Netherlands, the presiding judge of the 'arrondissementsrechtbank';

- in Austria, the 'Bezirksgericht',

- in Portugal, the 'Tribunal de Comarca',

- in Finland, the 'krjoikeus/tingsrtt',

- in Sweden, the 'Svea hovrtt',

- in the United Kingdom:

(a) in England and Wales, the High Court of Justice, or in the case of a maintenance judgment, the Magistrate's Court on transmission by the Secretary of State;

(b) in Scotland, the Court of Session, or in the case of a maintenance judgment, the Sheriff Court on transmission by the Secretary of State;

(c) in Northern Ireland, the High Court of Justice, or in the case of a maintenance judgment, the Magistrate's Court on transmission by the Secretary of State;

(d) in Gibraltar, the Supreme Court of Gibraltar, or in the case of a maintenance judgment, the Magistrates' Court on transmission by the Attorney General of Gibraltar.

Page 45

Annex III

The courts with which appeals referred to in Article 43(2) may be lodged are the following:

- in Belgium,

(a) as regards appeal by the defendant: the 'tribunal de premiere instance' or 'rechtbank van eerste aanleg' or 'erstinstanz-liches Gericht,

(b) as regards appeal by the applicant: the 'Cour d'appel' or 'hof van beroep',

- in the Federal Republic of Germany, the 'Oberlandesgericht',

- in Greece, the 'Epheteo,

- in Spain, the 'Audiencia Provincial',

- in France, the 'cour d'appel',

- in Ireland, the High Court,

- in Italy, the 'corte d'appello',

- in Luxembourg, the 'Cour superieure de justice' sitting as a court of civil appeal,

- in the Netherlands:

(a) for the defendant: the 'arrondissementsrechtbank,

(b) for the applicant: the 'gerechtshof,

- in Austria, the 'Bezirksgericht',

- in Portugal, the Tribunal de Relao',

- in Finland, the 'hovioikeus/hovratt',

- in Sweden, the 'Svea hovratt',

- in the United Kingdom:

(a) in England and Wales, the High Court of Justice, or in the case of a maintenance judgment, the Magistrate's Court;

(b) in Scotland, the Court of Session, or in the case of a maintenance judgment, the Sheriff Court;

(d) in Gibraltar, the Supreme Court of Gibraltar, or in the case of a maintenance judgment, the Magistrates' Court.

Page 46

Annex IV

The appeals which may be lodged pursuant to Article 44 are the following

- in Belgium, Greece, Spain, France, Italy, Luxembourg and the Netherlands, an appeal in cassation,

- in Germany, a 'Rechtsbeschwerde',

- in Ireland, an appeal on a point of law to the Supreme Court,

- in Austria, a 'Revisionsrekurs',

- in Portugal, an appeal on a point of law,

- in Finland, an appeal to the 'korkein oikeus/hogsta domstolen',

- in Sweden, an appeal to the 'Hgsta domstolen',

- in the United Kingdom, a single further appeal on a point of law.

Page 47

Annex V

Certificate referred to in Articles 54 and 58 of the Regulation on judgments and court settlements

(English, ingles, anglais, inglese, ...)

Member State of origin
Court or competent authority issuing the certificate

2.1. Name

2.2. Address

2.3. Tel./fax/e-mail
Court which delivered the judgment/approved the court settlement ^*

3.1. Type of court

3.2. Place of court
Judgment/court settlement ^*

4.1. Date

4.2. Reference number

4.3. The parties to the judgment/court settlement ^*

4.3.1. Name(s) of plaintiff(s)

4.3.2. Name(s) of defendant(s)

4.3.3. Name(s) of other party(ies), if any

4.4. Date of service of the document instituting the proceedings where judgment was given in default of appearance

4.5. Text of the judgment/court settlement ^* as annexed to this certificate
Names of parties to whom legal aid has been granted

The judgment/court settlement ^* is enforceable in the Member State of origin (Articles 38 and 58 of the Regulation) against:

Name:

Done at .........................., date ..........................

Signature and/or stamp

Page 48

Annex VI

Certificate referred to in Article 57(4) of the Regulation on authentic instruments

(English, ingles, anglais, inglese ............)

Member State of origin
Competent authority issuing the certificate

2.1. Name

2.2. Address

2.3.Tel./fax/e-mail
Authority which has given authenticity to the instrument

3.1. Authority involved in the drawing up of the authentic instrument (if applicable)

3.1.1. Name and designation of authority

3.1.2. Place of authority

3.2. Authority which has registered the authentic instrument (if applicable)

3.2.1. Type of authority

3.2.2. Place of authority
Authentic instrument

4.1. Description of the instrument

4.2. Date

4.2.1. on which the instrument was drawn up

4.2.2. if different: on which the instrument was registered

4.3. Reference number

4.4. Parties to the instrument

4.4.1. Name of the creditor

4.4.2. Name of the debtor
Text of the enforceable obligation as annexed to this certificate

The authentic instrument is enforceable against the debtor in the Member State of origin (Article 57(1) of the Regulation)

Done at ........................., date .........................

Signature and/or stamp

Page 49

Corrigenda

Corrigendum to 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 of the European Communities L 12 of 16 January 2001)

On page 15, Article 69:

between the indent relating to the Convention between France and Italy of 3 June 1930 and the indent relating to the Convention between Germany and Italy of 9 March 1936, insert the following two indents:

'- the Convention between the United Kingdom and the French Republic providing for the reciprocal enforcement of judgments in civil and commercial matters, with Protocol, signed at Paris on 18 January 1934,

- the Convention between the United Kingdom and the Kingdom of Belgium providing for the reciprocal enforcement of judgments in civil and commercial matters, with Protocol, signed at Brussels on 2 May 1934,';
between the indent relating to the Convention between Belgium and Austria of 16 June 1959 and the indent relating to the Convention between Greece and Germany of 4 November 1961, insert the following two indents:

'- the Convention between the United Kingdom and the Federal Republic of Germany for the reciprocal recognition and enforcement of judgments in civil and commercial matters, signed at Bonn on 14 July 1960,

- the Convention between the United Kingdom and Austria providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters, signed at Vienna on 14 July 1961, with amending Protocol signed at London on 6 March 1970,';
between the indent relating to the Convention between the Netherlands and Austria of 6 February 1963 and the indent relating to the Convention between France and Austria of 1 5 July 1966, insert the following indent:

'- the Convention between the United Kingdom and the Republic of Italy for the reciprocal recognition and enforcement of judgments in civil and commercial matters, signed at Rome on 7 February 1964, with amending Protocol signed at Rome on 14 July 1970,';
between the indent relating to the Convention between France and Austria of 1 5 July 1966 and the indent relating to the Convention between Spain and France of 28 May 1969, insert the following indent:

'- the Convention between the United Kingdom and the Kingdom of the Netherlands providing for the reciprocal recognition and enforcement of judgments in civil matters, signed at The Hague on 17 November 1967,'.

---------------------------------------

[1] OJ L 299, 31.12.1972.The Brussels Convention was accompanied by an explanatory report drawn up by P. Jenard (OJ C 59, 5.3.1979) (Jenard report).

[2] G. A. L. Droz, Competence judiciaire et execution des jugements dans le marche' commun, Paris, 1972, pp. 2 et seq.

[3] Convention of 9 October 1978 on the accession of Denmark, Ireland and the United Kingdom (OJ L 304, 30.10.1978), with explanatory report by P. Schlosser (OJ C 59, 5.3.1979); Convention of 25 October 1982 on the accession of Greece (OJ L 388, 31.12.1982), with explanatory report by D. I. Evrigenis and K. D. Kerameus (OJ C 298, 24.11.1986); Convention of 26 May 1989 on the accession of Spain and Portugal (OJ L 285, 3.10.1989), with explanatory report by M. de Almeida Cruz, M. Desantes Real and P. Jenard (OJ C 189, 28.7.1990); Convention of 29 November 1996 on the accession of Austria, Finland and Sweden (OJ C 15, 17.1.1997).

[4] OJ L 319, 25.11.1988,with explanatory report by P. Jenard and G. Moller (OJ C 189, 28.7.1990). See also G. A. L. Droz and H. Gaudemet-Tallon, 'La transformation de la Convention de Bruxelles du 27 septembre 1968 en reglement du Conseil concernant la competence judiciaire, la reconnaissance et l'execution des decisions en matire civile et commerciales', Revue critique de droit international priv, 2001, pp. 601 et seq.; H. Tagaras, 'La revision et communautarisation de la Convention de Bruxelles par le reglement 44/2001', Cahiers de droit europen, 2003, pp. 399 et seq.; B. von Hoffmann, Internationales Privatrecht, Seventh edition, pp. 118 et seq.; L. Collins (ed.), Dicey and Morns on the conflict of laws, 13th edition, Third supplement, London, 2003, pp. 25 et seq.

[5] For a description of the procedure followed, see the Commission document referred to in the next footnote. The author of this article was the working party's rapporteur. As with the previous versions, the explanatory report should have accompanied the new version of the Brussels I Convention. The events which led to the adoption of a regulation rather than a convention prevented the publication of the explanatory report which may yet be published as the report on the new version of the Lugano (Parallel) Convention when this has been concluded.

[6] COM (1999) 348 final, 14.7.1999.

[7] OJ L 12, 16.1.2001.

[8] OJ C 27, 26.1.1998 (latest version of the protocol). Re the original version, see F. Pocar, La convenzione di Bruxelles sulla giunsdizione e l'esecuzione delle sentenze, Third edition, Milan, 1995, pp. 32 et seq.

[9] H. Gaudemet-Tallon, Competence et execution des jugements en Europe, Third edition, Paris, 2002, p. 22; S. Bariatti, 'La cooperazione giudiziaria in materia civile dal terzo pilastro dell'Unione europea al titolo IV del Trattato CE', Diritto dell'Unione europea, 2001, p. 277; F. Pocar, 'Remarques sur la cooperation judiciaire en matire civile dans la CE', Melanges en l'honneur de B. Dutoit, Geneva, 2002, p. 229.

[10] V. B. Goldman, 'Un traite federateur: la convention entre les tats membres de la CEE sur la reconnaissance et l'execution des decisions en matire civile et commerciale', Revue trimestrielle de droit europen, 1971, pp. 1 et seq.

[11] Judgment of the Court of Justice of 6 March 1980 in Case 120/79 De Cavel II [1980] ECR 731.

[12] See, for example, K. H. Nadelmann, 'Jurisdictionally improper fora in treaties on recognition of judgments: the Common Market draft', Columbia Law Review, 1967, pp. 995 et seq.; P. Hay, 'The Common Market Preliminary Draft Convention on the Recognition and Enforcement of Judgments - Some considerations of policy and interpretation', American Journal of Comparative Law, 1968, pp. 149 et seq.;T. C. Hartley, Civil jurisdiction and judgments, London, 1984, p. 8.

[13] Under Article 72, the regulation does not affect agreements by which a Member State and a third State undertook, prior to the entry into force of the regulation, not to recognise judgments given in another Member State against defendants domiciled or habitually resident in a third country where, in cases provided for in Article 4 of the Brussels Convention, the judgment could only be founded on a ground of jurisdiction considered exorbitant under the second paragraph of Article 3 of the convention. But, unlike the counterpart Article 59 of the Brussels Convention, this provision does not apply to agreements entered into subsequently.

[14] Except for jurisdiction with regard to trusts under Article 5(6), which refers to the courts of the Member State in which the trust is domiciled.

[15] On the gradual development of Community rules on the jurisdiction of the courts both of and within the Member States, see S. M. Carbone, Ilnuovo spazio giudiziario europeo dalla convenzione di Bruxelles al Regolamento CE 44/2001, Fourth edition, Turin, 2002, pp. 54 et seq.

[16] See the judgments of the Court of Justice of 22 March 1983 in Case 34/82 Martin Peters [1983] ECR 987 and of 17 June 1992 in Case C-26/91 Jacob Handte [1992] ECR I-3967.

[17] See, in so far as such a dispute constituted a plea by way of preliminary objection in a case for the performance of a contract, the judgment of the Court of Justice of 4 March 1982 in Case 38/81 Effer v Kantner [1982] ECR 825.

[18] See the judgment of the Court of Justice of 27 September 1988 in Case 189/87 Kalfelis [1988] ECR 5565.

[19] Reference must also be made to Article 2 when the obligation in question cannot be geographically located: see the judgment of the Court of Justice of 19 February 2002 in Case C-256/00 Besix [2002] ECR I-1699.

[20] See, in particular, the judgment of the Court of Justice of 6 October 1976 in Case 14/76 Be Bloos v Bouyer [1976] ECR 1497; in this case, which concerned claims for damages for non-performance of a contract, the Court ruled that the obligation to which reference must be made is not the obligation to pay damages but the obligation non-performance of which is relied upon, by the plaintiff in support of his application for damages.

[21] See the judgment of the Court of Justice of 15 January 1987 in Case 266/85 Shenavai v Kriescher [1987] ECR 239.

[22] See the judgment of the Court of Justice of 28 September 1999 in Case C-440/97 Groupe Concorde [1999] ECR I-6307.

[23] See the judgments of the Court of Justice of 6 October 1976 in Case 12/76 Tessili v Dunlop [1976] ECR 1473 and in Groupe Concorde (cited above).

[24] See section on Article 5 in COM (1999) 348 final.

[25] See the judgment of the Court of Justice of 30 November 1976 in Case 21/76 Mines des potasse d'Alsace v Bier[1976] ECR 1735.

[26] See the judgments of the Court of Justice of 11 January 1990 in Case C-220/88 Dumez [1990] ECR I-49 and of 19 September 1995 in Case C-3 64/93 Marinari [1995] ECR I-2739.

[27] See the judgment of the Court of Justice of 7 March 1995 in Case C-68/93 Shevill [1995] ECR I-415.

[28] The provision was taken from the 1988 Lugano Convention.

[29] The Court of Justice has made it clear that lodging an objection to jurisdiction along with a defence on the substance of the case, as required under some countries' national law, does not entail acceptance of jurisdiction; see the judgment of 24 June 1981 in Case 150/80 Elefanten Schuh [1981] ECR 1671.

[30] Under Article 25 of the regulation, requiring a court to decline jurisdiction, of its own motion, only if seised of a claim principally concerned with a matter for which exclusive jurisdiction lies elsewhere.

[31] It should be noted that the regulation stipulates that, in determining the seat, the court is to apply its rules of private international law, an arrangement deviating from that applicable generally under Article 60 in determining domicile for the purposes of Article 2.

[32] The issue raised, of whether exclusive jurisdiction rules have what has been termed a 'reflex effect', has not been finally settled in legal scholarship or in case-law, although it has previously been resolved in the negative for the Brussels I and Lugano Conventions; see H. Gaudemet-Tallon, Competence et execution des jugements en Europe (cited above), pp. 72 et seq.

[33] On this point, see the judgment of the Court of Justice of 17 November 1998 in Case C-391/9S Van Uden [1998] ECR I-7091.

[34] Judgment of the Court of Justice of 7 June 1984 in Case 129/83 Zelgerv Salinitri [1984] ECR 2397; see, however, the subsequent judgment of 8 December 1987 in Case 144/86 Gubisch v Colombo [1987] ECR 4861, in which the Court made it clear that the reference to national law relates only to the time at which proceedings become pending and that, as regards its essential components, lis pendens is to be regarded as separately defined.

[35] With this in mind, it might be asked whether it would not be worth bringing about closer coordination by also attaching significance to consideration by the court first seised, with a view to a possible transfer of proceedings to another court seised.

[36] Judgment of the Court of Justice of 30 November 1976 in Case 42/76 De Wolf v Cox [1976] ECR 1759.

[37] See the regulation's 16th recital. The same reasons for eliminating review of jurisdiction had previously been adduced in the Jenard report (cited above), p. 46.

[38] There can, of course, be no question of any review as to the substance of a foreign judgment, even as to the law applied by the original court, as allowed by Article 27(4) of the Brussels I Convention, under which a judgment will not be recognised if, in order to arrive at its judgment, the court in the State in which the judgment was given has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with the rules of private international law of the State in which recognition is sought, unless the same result would have been reached by application of those rules. The omission of that provision has to be seen as a welcome development, on account of its substantive review implications. Its retention in the regulation would, moreover, in part at least, run counter to the course followed in the Brussels II Regulation, which makes no provision for such review. On this point, see H. Gaudemet-Tallon, Competence et execution des jugements en Europe (cited above), p. 320.

[39] Annex V. The form is designed to show at a glance the main details of the judgment and of service of the document instituting proceedings at the court in the source Member State.

[40] Within two months if the party against whom enforcement is sought is domiciled in a State other than that in which the declaration of enforceability was issued.

[41] The party applying for a declaration of enforceability of a foreign judgment is also entitled to appeal if it is not granted.

[42] The court with jurisdiction to hear the appeal, like that with jurisdiction to issue the declaration of enforceability, for each Member State is not now specified in the body of the regulation, as it was in the Brussels I Convention. In order to obviate the need to amend the regulation for future European Union enlargements, or possibly in response to different information supplied by Member States, the courts having jurisdiction are listed in annexes to the regulation; these can be amended by the Commission on the basis of information supplied by the Member State concerned. See Annexes II, III and IV.

[43] On this point, including the procedure's similarities with the system of registration of judgments in the United Kingdom, see W. A. Kennet, The enforcement of judgments in Europe, Oxford, 2000, pp. 217 et seq.

[44] On this, including the prospect of introducing a European enforcement order, see R. Wagner, 'Vom Brusseler Ubereinkommen uber die Brussel I-Verordnung zum Europischen Vollstreckungstiter, IPRax, 2002, pp. 75 et seq., and A. Marmisse, La libre circulation des decisions de justice en Europe, Limoges, 2000, pp. 196 et seq.

[45] Especially if the proceedings of the Hague Conference on Private International Law for the drafting of a worldwide convention on jurisdiction and enforcement of judgments should not prove successful. A draft general convention drawn up in 1999, with an explanatory report by P. Nygh and F. Pocar (available on the conference website), has been put aside for the time being and a draft convention confined to choice-of-court agreements is now being discussed.

[46] OJ C 376, 28.12.1999, p. 1.

[47] Opinion delivered on 21 September 2000 (not yet published in the Official Journal).

[48] OJ C 117, 26.4.2000, p. 6.

[49] OJ L 299, 31.12.1972, p. 32.

OJ L 304, 30.10.1978, p. 1.

OJ L 388, 31.12.1982, p. 1.

OJ L 285, 3.10.1989, p. 1.

OJ C 15, 15.1.1997, p. 1.

For a consolidated text, see OJ C 27, 26.1.1998, p. 1.

[50] OJ L 204, 2.8.1975, p. 28.

OJ L 304, 30.10.1978, p. 1.

OJ L 388, 31.12.1982, p. 1.

OJ L 285, 3.10.1989, p. 1.

OJ C 15, 15.1.1997, p. 1.

For a consolidated text see OJ C 27, 26.1.1998, p. 28.

[51] OJ L 184, 17.7.1999, p. 23.

[52] OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive 2000/26/EC of the European Parliament and of the Council (OJ L 181, 20.7.2000, p. 65).

[53] OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 2000/26/EC.

[54] OJ L 330, 29.11.1990, p. 44.

[55] OJ L 160, 30.6.2000, p. 37.

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