Jurisdiction, recognition and enforcement of judgments in civil and commercial matters
Outline of the Community (European Union) legislation about Jurisdiction, recognition and enforcement of judgments in civil and commercial matters
Topics
These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.
Justice freedom and security > Judicial cooperation in civil matters
Jurisdiction, recognition and enforcement of judgments in civil and commercial matters (“Brussels I”)
Document or Iniciative
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [See amending act(s)].
Summary
The regulation lays down rules governing the jurisdiction of courts in civil and commercial matters. A judgment given in an European Union (EU) country is to be recognised without special proceedings, unless the recognition is contested. A declaration that a foreign judgment is enforceable is to be issued following purely formal checks of the documents supplied. The regulation lists grounds for non-enforcement; however, courts are not to raise these of their own motion. The regulation does not cover revenue, customs or administrative matters. Neither does it apply to:
- the status or legal capacity of natural persons, matrimonial matters, wills and succession;
- bankruptcy;
- social security;
- arbitration.
Rules of jurisdiction
The basic principle is that jurisdiction is to be exercised by the EU country in which the defendant is domiciled, regardless of his/her nationality. Domicile is determined in accordance with the domestic law of the EU country where the matter is brought before a court. If a party is not domiciled in the EU country of the court considering the matter, the court is to apply the law of another EU country to determine whether the party is domiciled in said state. In the case of legal persons or firms, domicile is determined by the country where they have their statutory seat, central administration or principal place of business. In the case of trusts, domicile is defined by the court that is considering the case by applying its own rules of private international law *.
Suing the defendant in another EU country
Apart from the basic principle on jurisdiction, in certain circumstances a defendant may be sued in the courts of another EU country. The regulation lists areas of jurisdiction where this is so: special or exclusive jurisdiction, as well as jurisdiction on matters relating to insurance, consumer contracts and individual contracts of employment.
The courts’ special jurisdiction includes the following:
- matters relating to a contract: as a general rule, these will be dealt with by the courts for the place of performance of the obligation in question;
- matters relating to maintenance: as a general rule, these are to be brought before the courts for the place where the maintenance creditor is resident;
- matters relating to liability for wrongful acts – tort, delict or quasi-delict: these will be decided by the courts for the place where the harmful event occurred or may occur.
In matters relating to insurance, an insurer may be sued in the courts of the EU country where s/he is domiciled or of the EU country where the plaintiff is domiciled if the actions are brought by the policy holder, the insured or a beneficiary. In respect of liability insurance or insurance of immovable property, the insurer may, in addition, be sued in the courts for the place where the harmful event occurred.
The regulation also lays down rules on jurisdiction in matters relating to contracts concluded by consumers. “Consumers” are defined as persons who conclude a contract with a professional for a purpose outside of their own trade or profession. All contracts concluded with a person who pursues commercial or professional activities in the EU are covered, with the exception of contracts of transport, other than those providing for a combination of travel and accommodation for an inclusive price. The consumer is protected in the way described here if the contract concluded on the sale of goods is financed on instalment credit terms or through a loan repayable by instalments or any other form of credit. In order for the consumer to enjoy this protection in other cases, the contract must have been concluded with a person who pursues commercial or professional activities in the EU country in which the consumer is domiciled or directs such activities to that country. A consumer may bring proceedings either in the courts of the EU country in which the defendant is domiciled or in the courts for the place where the consumer (the plaintiff) is domiciled. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the EU country in which the consumer is domiciled.
In matters relating to individual contracts of employment, employees may either sue their employer in the courts of the EU country where the employer is domiciled or in the courts of the EU country where the employee habitually works. An employee who does not habitually work in any one country may sue the employer in the courts for the place where the business that engaged the employee has its seat. An employer who is not domiciled in any EU country, but has a branch, agency or other establishment in one of the EU countries, is deemed to be domiciled in that country. An employer may bring proceedings against an employee only in the courts for the place where the employee is domiciled.
Regardless of domicile, the following courts have exclusive jurisdiction in proceedings concerning:
- rights in rem in immovable property or tenancies of immovable property: the courts of the EU country in which the property is situated;
- the validity of the constitution, the nullity or the dissolution of companies or other legal persons or of the validity of the decisions of their organs: the courts of the EU country in which the legal person has its seat;
- the validity of entries in public registers: the courts of the EU country in which the register is kept;
- the registration or validity of patents, trade marks, designs or other similar rights: the courts of the EU country in which the deposit or registration has been applied for, has taken place or is under the terms of an Union instrument or an international convention deemed to have taken place;
- the enforcement of judgments: the courts of the EU country in which the judgment has been or is to be enforced.
If the parties, one or more of whom is domiciled in the EU, have concluded a choice of jurisdiction * clause, the agreed court will have jurisdiction. The regulation lays down a number of formalities that must be observed in such choice of jurisdiction agreements: the agreement must be in writing or in a form that respects practices the parties have established between themselves or, in international trade or commerce, in a form that accords with a usage of which the parties are aware.
Similarly, there are provisions for rules regarding co-defendants, actions on a warranty, guarantee or other third-party proceedings, counterclaims and matters relating to a contract if the action may be combined with an action relating to rights in immovable property.
The regulation also provides a mechanism to handle cases pending elsewhere (lis pendens) and related actions.
Recognition and enforcement
A judgment given in an EU country is to be recognised in the other EU countries without any special procedure being required. “Judgment” means any judgment given by a court or tribunal of an EU country, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance.
A judgment will not be recognised if:
- such recognition is manifestly contrary to public policy in the EU country in which recognition is sought;
- the defendant was not served with the document that instituted the proceedings in sufficient time and in such a way as to enable the defendant to arrange for his/her defence;
- it is irreconcilable with a judgment given in a dispute between the same parties in the EU country in which recognition is sought;
- it is irreconcilable with an earlier judgment given in another EU or non-EU country involving the same cause of action and the same parties.
A court in which recognition is sought of a judgment given in another EU country may stay the proceedings, if an ordinary appeal against the judgment has been lodged.
A judgment is to be enforced in another EU country when, on the application of any interested party, it has been declared enforceable there. The parties may appeal against a decision on an application for a declaration of enforceability.
Superseding the Brussels Convention of 1968
The regulation supersedes the Brussels Convention of 1968, which was applicable between the EU countries before the regulation entered into force. The convention continues to apply with respect to those territories of EU countries that fall within its territorial scope and that are excluded from the regulation pursuant to Article 299 of the Treaty establishing the European Community (now Article 355 of the Treaty on the Funtioning of the European Union). The regulation also lists a number of other conventions, treaties and agreements between EU countries that it supersedes.
Even after the regulation entered into force, questions of jurisdiction between Denmark and the other EU countries continued to be governed by the Brussels Convention of 1968. This Danish opt-out was based on the 1997 Protocol No 5 on the position of Denmark annexed to the Treaties (now Protocol No 22). On 19 October 2005, the EU concluded an agreement with Denmark on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters that extended the provisions of the regulation to that country. On 27 April 2006, the agreement was approved on behalf of the EU by Council Decision 2006/325/EC. It entered into force on 1 July 2007.
As provided for in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaties, these two countries have indicated their wish to take part in the adoption and application of the regulation.
| Key terms used in the act |
|---|
|
References
| Act | Entry into force | Deadline for transposition in the Member States | Official Journal |
|---|---|---|---|
|
Regulation (EC) No 44/2001 |
1.3.2002 |
– |
OJ L 12, 16.1.2001 |
| Amending act(s) | Entry into force | Deadline for transposition in the Member States | Official Journal |
|---|---|---|---|
|
Regulation (EC) No 1791/2006 |
1.1.2007 |
– |
OJ L 363, 20.12.2006 |
|
Regulation (EC) No 1103/2008 |
4.12.2008 |
– |
OJ L 304, 14.11.2008 |
Successive amendments and corrections to Regulation (EC) No 44/2001 have been incorporated in the basic text. This consolidated versionis for reference purposes only.
Related Acts
Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 21 April 2009 on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters [COM(2009) 174 final – Not published in the Official Journal].
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [Official Journal L 338 of 23.12.2003].
This regulation applies in civil matters relating to divorce, legal separation and the annulment of marriage, as well as to all aspects of parental responsibility. It does not apply in civil matters relating to maintenance obligations, which are covered by Regulation (EC) No 4/2009.