Tag Archives: Jurisdiction

Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention

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Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention

Outline of the Community (European Union) legislation about Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention

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

Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention (2007)

Document or Iniciative

Council Decision 2007/712/EC of 15 October 2007 on the signing, on behalf of the Community, of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Summary

The “new Lugano Convention” will apply to jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It will not apply to tax, customs and administrative matters or to the status and legal capacity of natural persons, rights in property arising from matrimonial relationships, wills and succession, bankruptcy or composition, social security or arbitration.

With this decision, the Council of the European Union (EU) authorises the President of the Council to designate the persons empowered to sign the convention on behalf of the Community. The text of the convention is attached to the decision.

Achieving a high level of circulation of judgments

The convention, signed on 30 October 2007 by the European Community, along with Denmark, Iceland, Norway and Switzerland, will come into force as soon as it is ratified by the signatories. It will replace the Lugano Convention of 16 September 1988. The contracting parties must deposit their instruments of ratification with the Swiss Federal Council, which will serve as depositary of the convention. Once it has come into force, the convention will be open to:

  • future members of the European Free Trade Association (EFTA);
  • Member States of the European Community acting on behalf of certain non-European territories that are part of their territory or for whose external relations they are responsible;
  • any other state, subject to the unanimous agreement of all the contracting parties.

Based on the rules applicable between EU Member States

The convention follows the present legal framework of the Community, namely the “Brussels I” regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between Member States. The rules will therefore be similar in the EU and in Switzerland, Norway and Iceland. The convention will also facilitate the mutual recognition and enforcement of judgments handed down by the national courts of these countries.

The convention provides that, in general, persons domiciled in a state bound by the convention are sued in that state, whatever their nationality. However, it also provides for special rules of jurisdiction in certain matters, such as with regard to:

  • contracts: jurisdiction resides with the courts of the place of performance of the obligation;
  • maintenance: jurisdiction resides with the courts of the place where the maintenance creditor is domiciled or habitually resident;
  • tort, delict or quasi-delict: jurisdiction resides with the courts of the place where the harmful event occurred or may occur.

The convention also provides for specific jurisdictions in matters relating to insurance, consumer contracts and individual contracts of employment. Jurisdiction in matters relating to tenancies and real property rights resides exclusively with the courts of the contracting state in which the property is situated.

A number of protocols are annexed to the convention, among other things to ensure that it is interpreted as uniformly as possible.

Signing of the convention marks a major institutional development

The European Court of Justice confirms in its Opinion 1/03 that the European Community is exclusively competent to conclude the new Lugano Convention.

Signed on behalf of the Community on 30 October 2007, the convention is a key part of Community law. It runs for an unlimited period.

Council Decision 2009/430/EC of 27 November 2008 approved the conclusion of the convention on behalf of the Community. It also established the declarations to be made at the time of depositing the Community instrument of ratification (annexed to the decision).

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2007/712/EC

15.10.2007

–

OJ L 339 of 21.12.2007

Jurisdiction, recognition and enforcement of judgments in civil and commercial matters

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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
  • “Private international law” governs the international element in matters of private law, i.e. family law, law of contract, etc. It is the branch of the domestic law of states that indicates which law, domestic or foreign, is to be applied in a particular case.
  • “Choice of jurisdiction” is a general principle of private international law under which the parties to a contract are free to designate a court to rule on any dispute even though that court might not have jurisdiction on the basis of the factors objectively connecting the contract with a particular place.

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.

Jurisdiction, applicable law and a European Certificate in succession matters

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Jurisdiction, applicable law and a European Certificate in succession matters

Outline of the Community (European Union) legislation about Jurisdiction, applicable law and a European Certificate in succession 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, applicable law and a European Certificate in succession matters

Document or Iniciative

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

Summary

This regulation applies to the succession to the estates of deceased persons. It is not applicable to revenue, customs or administrative matters.

Jurisdiction

The courts of the EU country in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. Where the habitual residence of the deceased at the time of death is not located in an EU country, the courts of an EU country in which assets of the estate are located shall have jurisdiction to rule on the succession, provided that the deceased had:

  • the nationality of that EU country at the time of death; or
  • his previous habitual residence in that EU country, provided that, at the time the court is seised, no more than 5 years have elapsed since the habitual residence changed.

Where the deceased has made a choice of law in accordance with the Regulation and the law chosen by the deceased is of an EU country, the parties concerned may agree that the courts of that EU country are to have exclusive jurisdiction to rule on any succession matter.

The courts of the EU country in which the deceased had his habitual residence at the time of death can decline the jurisdiction to govern the succession if it considers that the courts of the EU country of the chosen law are better placed to rule on the succession, taking into account the practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets.

The courts of an EU country whose law had been chosen by the deceased shall have jurisdiction if:

  • under specific conditions laid down in the Regulation, a court previously seised has declined jurisdiction in the same case;
  • the parties to the proceedings have agreed to confer jurisdiction on the courts of that EU country;
  • the parties to the proceedings have expressly accepted the jurisdiction of the court seised.

Applicable law

Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the country in which the deceased had his habitual residence at the time of death.

A person may choose as the law to govern his succession the law of the country whose nationality he possesses at the time of making the choice or at the time of death. A person with multiple nationalities may choose the law of any of the countries whose nationality he possesses.

The law governs in particular:

  • the causes, time and place of the opening of the succession;
  • the determination of the beneficiaries, of their respective shares and of any obligations imposed on them by the beneficiary, and the determination of other succession rights;
  • the capacity to inherit;
  • disinheritance and disqualification by conduct;
  • the transfer to the heirs and, as the case may be, to the legatees of assets, rights and obligations forming part of the estate;
  • the powers of the heirs, the executors of the wills and other administrators of the estate, without prejudice to specific rules on the appointment and powers of an administrator of the estate in certain situations;
  • liability for the debts under the succession;
  • the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death, as well as claims which persons close to the deceased may have against the estate or the heirs;
  • any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries;
  • the sharing-out of the estate.

Recognition and enforceability of decisions

Decisions given in an EU country shall be recognised throughout the EU without any special procedure being required.

Decisions enforceable in the EU country where they have been given shall be enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court or competent authority.

Acceptance and enforcement of authentic instruments

Authentic instruments established in an EU country shall have the same evidentiary effects in another EU country as it has in the EU country where they have been established, or the most comparable effects, provided that this is not manifestly contrary to public policy in the EU country concerned.

Authentic instruments enforceable in the EU country where they have been established shall be enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court or competent authority.

European Certificate of Succession

This Regulation creates a European Certificate of Succession which is for use by heirs, legatees having direct rights in the succession, and executors of wills or administrators of the estate who, in another EU country, need to invoke their status or to exercise their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. Once issued, the Certificate is effective in all EU countries without any special procedure being required.

Final provisions

This Regulation shall apply to the succession of persons who die on or after the 17 August 2015. Choices of law and dispositions of property upon death made prior to that date are valid under specific conditions laid down in the Regulation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EU) No 650/2012

16.8.2012

–

OJ L 201 of 27.7.2012

Conflict of laws in matters concerning matrimonial property regimes

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Conflict of laws in matters concerning matrimonial property regimes

Outline of the Community (European Union) legislation about Conflict of laws in matters concerning matrimonial property regimes

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

Conflict of laws in matters concerning matrimonial property regimes (Green Paper)

What happens when, say, a Franco-Estonian couple living in Spain separate and questions arise regarding their immovable property located in Germany? The European Commission is launching this Green Paper with a view to resolving the conflict of laws in matters concerning matrimonial property regimes, including jurisdiction of courts and mutual recognition of decisions taken in different Member States. The Green Paper is concerned with “traditional” marriages and other forms of union involving no matrimonial link and takes due account of the new social circumstances in the Member States.

Document or Iniciative

Commission Green Paper of 17 July 2006 on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition [COM(2006) 400 – Not published in the Official Journal].

Summary

With this Green Paper, the Commission launched a consultation exercise on the difficulties facing married and unmarried couples at European level. The Green Paper addresses the questions that arise in connection with determination of the law applicable to property and the ways in which the recognition and enforcement of court decisions can be facilitated. The consultation exercise closed on 30 November 2006.

Resolving conflicts of law: the law applicable to matrimonial property regimes

Only scattered rules exist at Community level and these are either not applicable or incomplete and so do not resolve the practical or legal difficulties that arise when a couple’s property is to be distributed and/or managed. Where there is no Community rule, the national law of the Member States applies to matrimonial property regimes (in cases involving a national connection: a German couple married in Germany and living there) or private international law applies (in cases involving connections with abroad: the above couple possesses immovable property in France and in the United States).

The Commission would like to introduce rules of a universal nature enabling either the law of a Member State or the law of a third country to be applicable. This involves the identification of connecting factors, the issue of the choice by the spouses of their matrimonial regime and the rules on jurisdiction.

  • Identification of connecting factors. First, determination of the law applicable presupposes the identification of connecting factors. The Commission examines the nature of the connecting factors and their order of priority, as well as the use of different criteria for different aspects of the situation (“dépeçage”). It stresses that a solution is needed in cases where connecting factors designated by the conflict rule (such as residence) have changed or moved with the passage of time.
  • Choice of matrimonial property regime by the spouses. Most Member States allow spouses to choose the law applicable to the matrimonial property regime. The Commission would like to know whether this choice should be retained in a future Community instrument and, if so, which connecting factors must be taken into consideration in order to allow spouses to choose the matrimonial property regime.
  • Determining the jurisdiction of the judicial authorities. The Member States have adopted a wide variety of criteria to determine international jurisdiction as regards matrimonial property regimes. At Community level, Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility has to be complied with. The Commission wonders whether the court with jurisdiction under this Regulation has to be the same when it comes to ruling on the liquidation of the matrimonial property in the event of divorce, separation or succession. Failing that, what other solutions are possible? In addition, given the importance of the functions exercised by non-judicial authorities such as notaries and advocates, the Commission would like to settle the question of their powers and facilitate recognition of the acts established by them. Lastly, the Commission takes the view that uniform rules on the applicable law and jurisdiction will enhance mutual trust between Member States so that intermediate measures for the recognition and enforcement of judgments can be dispensed with.

According to the Commission, it would be worth improving the publicity of matrimonial property regimes in the European Union in order to guarantee legal certainty for all parties concerned, in particular creditors.

Taking account of social circumstances: other forms of union

The steady increase in the number of unmarried couples, whether in registered partnerships or in de facto unions, is reflected in the corresponding increase in the number of legal situations facing them.

Registered partnerships. The Commission looks at the need for specific rules of conflict for registered partnerships: Does the law applicable have to be the law of the place at which the partnership is registered or some other law? Will the designated law govern all the matters at issue or will other criteria such as the law of the place at which the property is located have to be taken into account? The Commission raises the question of the jurisdiction of the judicial authorities in the matter but also that of the recognition and enforcement of decisions relating to registered partnerships.

De facto unions. As with registered partnerships, the Commission examines the specific conflict rules for de facto unions, i.e. non-formalised cohabitation, and wonders whether there should at least be specific rules for the effects of separation of such unions in relation to third parties. Lastly, the Commission looks at the specific rules on jurisdiction and the recognition of property relationships resulting from de facto unions.

The consultation exercise closed on 30 November 2006. The replies received by national governments and parliaments from local and regional authorities and from other entities such as associations of legal professions and universities may be consulted on the website of the European Commission, Directorate-General (DG) for Justice, Freedom and Security, along with a summary of the replies (pdf ).

Background

The adoption of a European instrument relating to matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. This Green Paper forms part of the objectives of the Hague Programme, adopted by the European Council on 4 and 5 November 2004.

 

The law applicable to contractual obligations – The Rome I Regulation

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The law applicable to contractual obligations – The Rome I Regulation

Outline of the Community (European Union) legislation about The law applicable to contractual obligations – The Rome I Regulation

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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

The law applicable to contractual obligations – The Rome I Regulation

Document or Iniciative

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

Summary

This Regulation applies to contractual obligations in civil and commercial matters in the event of a conflict of laws. It does not apply to revenue, customs or administrative matters, or to evidence and procedure.

Nor does the Regulation apply to the obligations relating to the following:

  • a natural person’s status or legal capacity;
  • family relationships;
  • matrimonial property regimes;
  • negotiable instruments such as bills of exchange, cheques and promissory notes;
  • arbitration and choice of court;
  • law of companies and other corporate or unincorporated bodies;
  • the binding of a principal or a company to a third party;
  • trusts;
  • dealings that occur before a contract is concluded;
  • insurance contracts, except those defined in Article 2 of Directive 2002/83/EC concerning life assurance.

Any law indicated in this Regulation should be applied, even if it is not that of a Member State.

Freedom of choice

The parties to a contract are to choose the governing law. It may be applied to only a part or the whole of the contract. Provided that all the parties agree, the applicable law may be changed at any time. If the law chosen is that of a country other than that relating most closely to the contract, the provisions of the latter law need to be respected. If the contract relates to one or more Member States, the applicable law chosen, other than that of a Member State, must not contradict the provisions of Community law.

Applicable law in the absence of choice

Where the parties have not chosen the applicable law for contracts for the sale of goods, provision of services, franchises or distribution, it will be determined based on the country of residence of the principal actor carrying out the contract. For contracts concerning immovable property, the law of the country where the property is located is applied, except in the cases of temporary and private tenancy (maximum six consecutive months). In such cases the applicable law is that of the landlord’s country of residence. In the case of sale of goods by auction, the law of the country of the auction will apply. With regard to certain financial instruments governed by a single law, the applicable law will be that law.

If none, or more than one of the above rules apply to a contract, the applicable law will be determined based on the country of residence of the principal actor carrying out the contract. If, however, the contract is related more closely to another country than provided by these rules, the law of that country will be applied. The same applies when no applicable law can be determined.

Rules applicable to specific contracts

For the following types of contract, the Regulation lays down options for the selection of applicable law and determines the law to be applied in the absence of choice:

  • contracts for the carriage of goods – in the absence of choice, the applicable law will be that of the country of residence of the carrier, provided that this is also the place of receipt or delivery, or the residence of the consignor. Otherwise, the law of the country to which the delivery will be made will apply;
  • contracts for the carriage of passengers – the applicable law may be chosen from either the country of residence of the passenger or carrier, the country where the central administration of the carrier is located, or the country of departure or destination. In the absence of choice, the law of the country of residence of the passenger will apply, provided that it is also the place of departure or destination. Yet, if the contract is more closely related to another country, then the law of that country will apply;
  • consumer contracts between consumers and professionals – the applicable law is that of the country of residence of the consumer, provided that this is also the country where the professional carries out his/her activities or to which his/her activities are directed. The parties may also, based on freedom of choice, apply another law, as long as it provides the same level of protection to the consumer as that of his/her country of residence;
  • insurance contracts – in the absence of choice, the applicable law will be that of the country of residence of the insurer. However, if the contract is more closely related to another country, that country’s law will apply;
  • individual employment contracts – the applicable law may be determined on the basis of the freedom of choice principle, provided that the level of protection granted to the employee remains the same as with the applicable law in the absence of choice. In the latter case, the law governing the contract will be that of the country where, or from where, the employee carries out his/her tasks. If this cannot be determined, the applicable law will be that of the country where the place of business is located. However, if the contract is more closely related to another country, that country’s law will apply.

Scope of the law applicable

The law this Regulation determines as applicable to a contract will regulate interpretation, performance, penalties for breaching obligations, assessment of damages, termination of obligations, instructions for actions, and penalties for invalid contracts. The Community law that establishes conflict-of-law rules for contractual obligations relating to particular matters takes precedence over this Regulation, except in the case of insurance contracts.

The Commission will submit a report on the application of this Regulation to the European Parliament, the Council and the European Economic and Social Committee by 17 June 2013.

The Regulation will apply to contracts that are concluded as from 17 December 2009.

Background

The Vienna Action Plan of 1998 acknowledged the importance of harmonised conflict-of-law rules in the implementation of the mutual recognition principle for decisions in civil and commercial matters. The joint Commission and Council programme of 2000 provides measures for this harmonisation. The Hague Programme of 2004 reasserted the importance of pursuing work on conflict-of-law rules for contractual obligations, with its Action Plan providing for the adoption of the Rome I proposal. This ensuing Regulation replaces the Rome Convention of 1980 on the law applicable to contractual obligations, transforming it into a Community instrument and modernising it.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 593/2008

24.7.2008 – OJ L 177 of 4.7.2008

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

European and international courts

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European and international courts

Outline of the Community (European Union) legislation about European and international courts

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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 criminal matters

European and international courts

COURTS OF THE EUROPEAN UNION

The Court of Justice of the EU (CJEU) refers to the whole judicial system of the EU. It is composed of three courts:

  • the Court of Justice;
  • the General Court;
  • the Specialised Courts.

Court of Justice

The Court of Justice has jurisdiction in actions brought by Member States or European institutions. It may also have jurisdiction of last resort in judgments delivered by the General Court. In this case, it rules on the questions of law only and not on the facts of the case.

General Court

The General Court is attached to the Court of Justice and is designed to reduce that Court’s workload.

The General Court has jurisdiction to hear at first instance actions brought by Member States or individuals in the cases provided for by the European Treaties.

Specialised Courts

The Specialised Courts were created by the European Parliament and the Council in accordance with the ordinary legislative procedure. These courts have jurisdiction at first instance in certain categories of action on specific matters.

Different types of action

The CJEU is responsible for ensuring compliance with European law. It has jurisdiction in actions brought by Member States, other European institutions and European citizens. There are several types of procedure:

  • the action for annulment;
  • the proceedings for failure to fulfil an obligation;
  • the proceedings for failure to act;
  • the action for damages;
  • the reference for a preliminary ruling.

INTERNATIONAL COURTS

There is a wide range of courts and tribunals that hear disputes at international level and which have their headquarters on European territory. However, these courts do not come under the auspices of the European Union. They are:

  • the courts of other European organisations, in particular the European Court of Human Rights and the EFTA Court (European Free Trade Association);
  • the courts created under the auspices of the United Nations;
  • the independent dispute settlement bodies of the United Nations.

Courts of other European organisations

Neither the European Court of Human Rights nor the EFTA Court is a European Union institution.

The European Court of Human Rights is an international court set up under the Council of Europe, which currently has 47 Member States. The Court enforces the European Convention on Human Rights, signed on 4 November 1950.

The EFTA Court enforces the Agreement on the European Economic Area (EEA). The Agreement secures freedom of movement of persons, goods, services, etc.

Courts created under the auspices of the United Nations

The Member States of the United Nations have established three Permanent Courts of Justice – the International Court of Justice, the International Criminal Court and the International Tribunal for the Law of the Sea.

The
International Court of Justice

(ICJ). The ICJ was founded by the Charter of the United Nations, signed on 26 June 1945. It is the main judicial body in the United Nations family and has jurisdiction in, among other matters, questions relating to the Charter of the United Nations, the interpretation of international treaties, questions of international law, violations of international law and the nature and extent of compensation in the event of a violation of an obligation under international law. Only States can be parties in cases in the Court. The ICJ sits at The Hague, in the Netherlands.

The
International Criminal Court

(ICC) has the power to try persons who have committed serious crimes of international concern. These crimes include genocide, crimes against humanity, war crimes and the crime of aggression. The ICC sits at The Hague, in the Netherlands.

The International Tribunal for the Law of the Sea is an independent court set up by the United Nations Convention on the Law of the Sea (FR). It has jurisdiction in disputes concerning the interpretation and application of the Convention. The States party to the Convention and natural and legal persons have access to the Tribunal, which sits at Hamburg, in Germany.

Furthermore, the United Nations has created two other non-permanent courts in order to try war crimes and certain genocides:

  • the
    International Criminal Tribunal for the Former Yugoslavia (ICTY):     the ICTY was created to try persons presumed to be responsible for war crimes committed in the Balkans during the conflicts in the 1990s;
  • the
    International Criminal Tribunal for Rwanda (ICTR):     the ICTR was created to try persons presumed to be responsible for acts of genocide and other serious violations of international humanitarian law committed on Rwandan territory between 1 January and 31 December 1994.

United Nations independent dispute-settlement bodies

Apart from the international courts and tribunals, there are several other dispute-settlement bodies, in particular the Permanent Court of Arbitration and the World Trade Organisation (WTO) Dispute Settlement Body.

The
Permanent Court of Arbitration (PCA) is an independent intergovernmental organisation. It administers arbitration and conciliation procedures and committees of inquiry in disputes between Member States, private parties and intergovernmental organisations on the basis of international arbitration regulations. The PCA sits at The Hague, in the Netherlands.

The
World Trade Organization (WTO) Dispute Settlement Body settles disputes in world trade. WTO dispute settlement is governed by the memorandum of agreement signed at Marrakech in 1994 following the Uruguay Round negotiations. The memorandum puts the emphasis on consultation and sets strict deadlines for settling disputes. The WTO is based at Geneva, in Switzerland.

This summary is for information only. It is not intended to interpret or replace the reference document, which remains the only binding legal text.