Brussels Regime
Encyclopedia
The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union
and the European Free Trade Association
. It has detailed rules assigning jurisdiction for the dispute to be heard and governs the recognition and enforcement of foreign judgements.
.
All three legal instruments are broadly similar in content, but there are some differences. In general, it is the domicile of the defendant that determines which of these instruments applies in a given case. The Brussels I Regulation is applicable where the defendant is domiciled in a member state of the European Union. Until 1 July 2007 this did not include Denmark
— however an agreement was made between Denmark and the European Community extending the provisions of the regulation to Denmark. The Lugano Convention is applicable when the defendant is domiciled in Iceland
, Norway
, or Switzerland
. Where the recognition or enforcement of a foreign judgement is concerned, the applicable instrument is determined in analogous fashion by the country of origin of the judgement.
, bankruptcy
or insolvency
, social security
, or relates to arbitration
, the case is not subject to the rules.
Article 2 prescribes that a person (legal or natural) may only be sued in the member state in which he or she is domiciled. Domicile
is determined by the law of the national court hearing the case, so that a person can be domiciled in more than one state simultaneously.
Article 4 preserves the traditional rules for defendants who are not domiciled in a member state. That is, if a defendant is domiciled elsewhere, then the Regime does not apply and the national court hearing the case is left to determine jurisdiction based on the traditional rules otherwise governing such questions in their legal system. Article 4 also allows a person domiciled in any member state to take advantage of another member state's exorbitant bases of jurisdiction on the same basis as a national of that state. This is useful in cases where a member state, such as France
, allows its nationals to sue anyone in their courts, so that someone domiciled in a member state like Finland
may sue someone domiciled in a non-member state like Canada
, in the courts of a third party member state, like France, where the defendant may have asset
s.
The Brussels Convention and the Brussels I Regulation are both subject to the jurisdiction of the European Court of Justice
(ECJ) on questions of interpretation. The Lugano Convention lacks a protocol governing references to the ECJ. Although the interpretations of other national courts, and of the ECJ in the case of Lugano Convention contracting states, are influential, they are not binding, and so various divergences have arisen between member states in the interpretation of the instruments.
It is also to be noted that the Brussels Regime generally allows jurisdiction clauses, which preserves the right of parties to reach agreement at the time of contracting as to which court should govern any dispute.
The Regime applies only in the courts of signatory states, so there is nothing to prevent a non-party state from allowing parallel proceedings in their courts, although this may contribute to a finding of forum non conveniens
, which would in practice halt an action.
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
and the European Free Trade Association
European Free Trade Association
The European Free Trade Association or EFTA is a free trade organisation between four European countries that operates parallel to, and is linked to, the European Union . EFTA was established on 3 May 1960 as a trade bloc-alternative for European states who were either unable to, or chose not to,...
. It has detailed rules assigning jurisdiction for the dispute to be heard and governs the recognition and enforcement of foreign judgements.
Overview
The Brussels Regime consists of the Brussels Convention, the Lugano Convention, and the Brussels I RegulationBrussels I Regulation
The Brussels I Regulation No regulates the conflict of laws in the European Union.-Background:In the European Union, the two earlier conventions have largely been supplanted by this Regulation which is directly applicable to all EU member states. The Regulation makes some changes to the Brussels...
.
- The Brussels Convention, officially the "Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters", (also known as the EEX Convention, presumably standing for European Execution Treaty ), was agreed in 1968 by the member states of the EU, with the goal of increasing economic efficiency and promoting the single marketSingle marketA single market is a type of trade bloc which is composed of a free trade area with common policies on product regulation, and freedom of movement of the factors of production and of enterprise and services. The goal is that the movement of capital, labour, goods, and services between the members...
by harmonising the rules on jurisdiction and preventing parallel litigation.
- The Lugano Convention, officially the "Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters", (also known as the EVEX Convention), is almost identical, and was agreed in 1988 with the then six members of the European Free Trade AssociationEuropean Free Trade AssociationThe European Free Trade Association or EFTA is a free trade organisation between four European countries that operates parallel to, and is linked to, the European Union . EFTA was established on 3 May 1960 as a trade bloc-alternative for European states who were either unable to, or chose not to,...
except for LiechtensteinLiechtensteinThe Principality of Liechtenstein is a doubly landlocked alpine country in Central Europe, bordered by Switzerland to the west and south and by Austria to the east. Its area is just over , and it has an estimated population of 35,000. Its capital is Vaduz. The biggest town is Schaan...
. It is also open for accession by non-member states of EU and EFTA, but no states have done so so far (with the exception of PolandPolandPoland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
, which acceded to the Lugano Convention before joining the EU). Subsequently the Lugano Convention was ratified by the EC, Denmark, Iceland, Norway and Switzerland. A replacement Lugano Convention was signed into law on 30 October 2007 by the latter countries.
- The Brussels I RegulationBrussels I RegulationThe Brussels I Regulation No regulates the conflict of laws in the European Union.-Background:In the European Union, the two earlier conventions have largely been supplanted by this Regulation which is directly applicable to all EU member states. The Regulation makes some changes to the Brussels...
officially the "Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters" (or Council Reg (EC) 44/2001 for short). In the European Union, the two earlier conventions have largely been supplanted by this Regulation which is directly applicable to all EU member states. The Regulation makes some changes to the Brussels Convention, but is generally very similar. The Regulation entered into force on 1 March 2002.
All three legal instruments are broadly similar in content, but there are some differences. In general, it is the domicile of the defendant that determines which of these instruments applies in a given case. The Brussels I Regulation is applicable where the defendant is domiciled in a member state of the European Union. Until 1 July 2007 this did not include Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
— however an agreement was made between Denmark and the European Community extending the provisions of the regulation to Denmark. The Lugano Convention is applicable when the defendant is domiciled in Iceland
Iceland
Iceland , described as the Republic of Iceland, is a Nordic and European island country in the North Atlantic Ocean, on the Mid-Atlantic Ridge. Iceland also refers to the main island of the country, which contains almost all the population and almost all the land area. The country has a population...
, Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
, or Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
. Where the recognition or enforcement of a foreign judgement is concerned, the applicable instrument is determined in analogous fashion by the country of origin of the judgement.
Scope and content
The Brussels Regime covers legal disputes of a civil or commercial nature (article 1). There are some exceptions limiting the scope of this; where the principal matter of a dispute is one of family lawFamily law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
or insolvency
Insolvency
Insolvency means the inability to pay one's debts as they fall due. Usually used to refer to a business, insolvency refers to the inability of a company to pay off its debts.Business insolvency is defined in two different ways:...
, social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
, or relates to arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
, the case is not subject to the rules.
Article 2 prescribes that a person (legal or natural) may only be sued in the member state in which he or she is domiciled. Domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
is determined by the law of the national court hearing the case, so that a person can be domiciled in more than one state simultaneously.
Article 4 preserves the traditional rules for defendants who are not domiciled in a member state. That is, if a defendant is domiciled elsewhere, then the Regime does not apply and the national court hearing the case is left to determine jurisdiction based on the traditional rules otherwise governing such questions in their legal system. Article 4 also allows a person domiciled in any member state to take advantage of another member state's exorbitant bases of jurisdiction on the same basis as a national of that state. This is useful in cases where a member state, such as France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, allows its nationals to sue anyone in their courts, so that someone domiciled in a member state like Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
may sue someone domiciled in a non-member state like Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, in the courts of a third party member state, like France, where the defendant may have asset
Asset
In financial accounting, assets are economic resources. Anything tangible or intangible that is capable of being owned or controlled to produce value and that is held to have positive economic value is considered an asset...
s.
The Brussels Convention and the Brussels I Regulation are both subject to the jurisdiction of the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
(ECJ) on questions of interpretation. The Lugano Convention lacks a protocol governing references to the ECJ. Although the interpretations of other national courts, and of the ECJ in the case of Lugano Convention contracting states, are influential, they are not binding, and so various divergences have arisen between member states in the interpretation of the instruments.
It is also to be noted that the Brussels Regime generally allows jurisdiction clauses, which preserves the right of parties to reach agreement at the time of contracting as to which court should govern any dispute.
The Regime applies only in the courts of signatory states, so there is nothing to prevent a non-party state from allowing parallel proceedings in their courts, although this may contribute to a finding of forum non conveniens
Forum non conveniens
Forum non conveniens is a common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties...
, which would in practice halt an action.
Landmark cases
- European Court of JusticeEuropean Court of JusticeThe Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
Further reading and primary sources
- Emma Barraclough, Supreme Court sinks Italian torpedo, Managing Intellectual PropertyManaging Intellectual PropertyManaging Intellectual Property is a monthly magazine published in English and specializes in intellectual property. It was founded in 1990 and claims to have more than 10,000 readers. MIP is part of the Euromoney Legal Media Group. Jeremy Phillips launched the magazine and sold it to Euromoney...
, 3 May 2004 - Is there an After-Life for Pan European Injunctions?, IPEG blog, 27 March 2008
See also
- Spider in the web doctrineSpider in the web doctrineThe spider in the web doctrine is a legal doctrine in Dutch law governing cross-border injunctions in patent infringement cases. Under this doctrine, the Dutch courts would assume jurisdiction only in cases where the main defendant was located in the Netherlands and where the other defendants...
- Cross-border injunctionCross-border injunctionIn European law, and especially in European intellectual property law, a cross-border injunction is an injunction by a court in one European country, such as a court in the Netherlands forbidding infringement in several other European countries....
- Enforcement of European patentsEnforcement of European patentsEuropean patents are granted by the European Patent Office under the legal provisions of the European Patent Convention . However, European patents are enforced at a national level, i.e. on a per-country basis...
- Private international law
- JurisdictionJurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
- Implementation in UK law
- Civil Jurisdiction and Judgments Act 1982Civil Jurisdiction and Judgments Act 1982The Civil Jurisdiction and Judgments Act 1982 is an Act of the Parliament of the United Kingdom, which was passed to implement the Brussels Convention of 1968 into British law...
- Civil Jurisdiction and Judgments Act 1991Civil Jurisdiction and Judgments Act 1991The Civil Jurisdiction and Judgments Act 1991 is an Act of Parliament made by the Parliament of the United Kingdom in order to implement the Lugano Convention of 1988 into British law.-Contracting states in 1991:...
- Civil Jurisdiction and Judgments Act 1982
- Rome ConventionRome Convention (contract)The Convention on the Law Applicable to Contractual Obligations 1980 is a measure in private international law or conflict of laws which aims to create at least a harmonised, if not a unified, choice of law system in contracts within the European Union...
the choice of law to be made in contract disputes - Rome II RegulationRome II RegulationThe Rome II Regulation No is an European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations...
the choice of law to be made in tort and delict disputes
External links
- 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters – Brussels convention, repealed and replaced in 2007 by the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
- Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988 (Lugano Convention)
- Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation)
- Recent case-law relating to the Brussels and Lugano Conventions on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters