The First Member State Rebellion? The European Court of Justice and the Negotiations of the ‘Luxembourg Protocol’ of 1971

• Author: Vera Fritz
• DOI: http://doi.org/10.1111/eulj.12129
• Published date: 01 September 2015
• Date: 01 September 2015

The First Member State Rebellion? The

European Court of Justice and the

Negotiations of the ‘Luxembourg

Protocol’ of 1971

Vera Fritz*

Abstract: This article delves into the history of the negotiations of the ‘Luxembourg

protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice

(ECJ) for the interpretation of the 1968 Brussels convention. The protocol provided a

preliminary ruling procedure that had undergone restrictive modifications in comparison

with the European Economic Community (EEC) treaty’s original (Article 177). Some

have, therefore, interpreted the outcome of the negotiations as a sign that the mechanism

was being criticised in national administrations. This article will, for the first time, bring

to the surface archival evidence to explain why the protocol contained an altered version

of Article 177 EEC. Furthermore, it will reveal that the governments’ experts’ intention

to limit the procedure in the protocol caused serious concern inside the ECJ, of which

some members consequently repeatedly urged national decision-makers to opt for for-

mulas identical with Article 177 EEC.

I Introduction

Signed on 3 June 1971 in the capital of the Grand-Duchy, the ‘Luxembourg

protocol’ conferred upon the European Court of Justice (ECJ) the competence to

give preliminary rulings concerning the interpretation of the 1968 convention on

jurisdiction and the enforcement of judgements in civil and commercial matters.

Known as the ‘Brussels convention’, it replaced the existing national rules and

bilateral agreements regarding the international enforcement of judgements in civil

and commercial matters, and established an autonomous system of international

* Ph.D., Associated researcher, TELEMME, University of Aix-Marseille, Email: vera.fritz@ymail.com.

The present research is supported by the National Research Fund of Luxembourg. The author would

like to thank the editor Agustín José Menéndez, Alexandre Bernier, Francesca Bignami, Anne

Boerger-De Smedt, Claus-Dieter Ehlermann, Jan Komárek, Mark A. Pollack and Michel Waelbroeck

for comments that greatly helped improve this article. Particular acknowledgements are addressed to

Morten Rasmussen and Bill Davies for the in-depth discussions on the subject and their helpful com-

ments on many drafts of this article.

© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

European Law Journal, Vol. 21, No. 5, September 2015, pp. 680–699.

jurisdiction within the European Communities (EC).1The protocol that was

annexed to it three years later provided a preliminary ruling procedure similar to

Article 177 of the European Economic Community (EEC) treaty, allowing national

courts to send questions regarding the interpretation of the convention to the ECJ.

However, the mechanism had undergone a serious revision. Contrary to Article 177

EEC, the possibility to make references for a preliminary ruling was limited to

courts judging in appeal. Instead of the relatively open formulation which

designated in Article 177 EEC the six Member States’ highest jurisdictions, ie ‘a

court or tribunal [. . .] against whose decisions there is no judicial remedy under

national law’, the protocol put forth a precise list of supreme courts which were

bound to make references on the interpretation of the convention to Luxembourg.

Moreover, it foresaw a margin of appreciation in this obligation clause, as a

supreme court only had to refer to the ECJ if it considered that a decision on the

question was necessary to enable it to give judgement.2This set of words was

inspired by the EEC treaty, which provided such a clause for the national courts’

discretionary referral.

If one takes into consideration that the negotiations of the Luxembourg protocol

had constituted the six Member States’ first discussions on the subject of the ECJ

since it had adopted a resolutely pro-integration course with its famous judgements of

1963 and 1964, and since the unexpected progressive development of questions for the

interpretation of the EEC treaty that the Court of Justice had known in the 1960s,3

then this restrictive way in which the preliminary reference procedure was drafted

is striking. Were the national courts’ confined possibilities to send questions to

1Not all civil and commercial matters were covered by the convention. Art. 1 provided: This Convention

shall not apply to: 1. the status or legal capacity of natural persons, rights in property arising out of a

matrimonial relationship, wills and succession; 2. bankruptcy, proceedings relating to the winding-up of

insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceed-

ings; 3. social security; 4. arbitration.

2Art. 2: The following courts may request the Court of Justice to give preliminary rulings on questions of

interpretation:

1. In Belgium: la Cour de Cassation and le Conseil d’Etat, in the Federal Republic of Germany: die

obersten Gerichtshöfe des Bundes, in France: la Cour de Cassation and le Conseil d’Etat, in Italy: la

Corte Suprema di Cassazione, in Luxembourg: la Cour supérieure de Justice, when sitting as Cour de

Cassation, in the Netherlands: de Hoge Raad

2. The courts of the Contracting States when they are sitting in an appellate capacity [. . .]

Art. 3:

1. Where a question of interpretation of the Convention [. . .] is raised in a case pending before

one of the courts listed in point 1 of Article 2, that court shall, if it considers that a decision on the

question is necessary to enable it to give judgment, request the Court of Justice to give a ruling

thereon.

2. Where such a question is raised before any court referred to in point 2 or 3 of Article 2, that court

may, under the conditions laid down in paragraph 1, request the Court of Justice to give a ruling

thereon.

3In 1967, 23 out of 37 cases introduced at the ECJ had been preliminary references. Between 1958

and 1966, however, the Court of Justice had in total only known 26 questions for a preliminary

ruling. See statistics in B. Davies and M. Rasmussen, ‘From International Law to a European

Rechtsgemeinschaft: Towards a New History of European Law, 1950–1979’, in J. Laursen (ed),

Institutions and Dynamics of the European Community, 1973–83 (Nomos, 2014), at 97.

The ECJ and the Luxembourg Protocol of 1971

September 2015

681

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