Jurisdiction, Recognition and Jurisdiction, Recognition and Enforcement of Judgments Enforcement of Judgments

under EC Lawunder EC Law

Prof Dr Thomas RauscherProf Dr Thomas Rauscher

Brussels I-RegulationBrussels I-Regulationand and

Enforcement Order-Enforcement Order-RegulationRegulation

TR 2007

TR 2007

Study Materials (partly in German only)Study Materials (partly in German only)

EU-materialsEU-materials ECJ-decisionsECJ-decisions

Text and collected materials Text and collected materials

EC-reg about civil EC-reg about civil procedural lawprocedural law -Brussels I-reg-Brussels I-reg -EnforcementOrder-reg-EnforcementOrder-reg

Synopsis Brussels Conv // Synopsis Brussels Conv // RegReg

ECJ-decisions on Brussels ECJ-decisions on Brussels Conv/RegConv/Reg

Study bookStudy book

CommentaryCommentary

www.europe.euwww.europe.eu www.curia.euwww.curia.eu

www.euzpr.euwww.euzpr.eu

EU-documentsEU-documents(procedure, civil law, (procedure, civil law, commercial law)commercial law)

Brussels I-synopsisBrussels I-synopsis ECJ decisionsECJ decisions

Rauscher, IPRRauscher, IPR22, 2002, , 2002, C.F.Müller, HeidelbergC.F.Müller, Heidelberg

Rauscher, EuZPRRauscher, EuZPR22, 2006,, 2006,Sellier ELP, MünchenSellier ELP, München

Interpretation of EC-Reg on Civil Proc by Interpretation of EC-Reg on Civil Proc by ECJECJ

JurisdictionJurisdiction

Preliminary rulings Preliminary rulings under Art 234 lit b ECT under Art 234 lit b ECT as EC-Reg are EC lawas EC-Reg are EC law

with Art 68 restrictions with Art 68 restrictions as EC-Reg on CP as EC-Reg on CP based on Arts 61 lit c based on Arts 61 lit c & 67 V:& 67 V:

Request may only be Request may only be brought by a court brought by a court against whose against whose decision there is no decision there is no judicial remedy judicial remedy

Sources & methods of Sources & methods of interpretationinterpretation

ECJ‘s decision on ECJ‘s decision on Brussels I convention to Brussels I convention to be consideredbe considered

Autonomous Autonomous („european“) („european“) interpretation applies interpretation applies with few exceptionswith few exceptions by ECJ: Art 5 I lit a & cby ECJ: Art 5 I lit a & c(place of performance)(place of performance) by regulation: Art 59by regulation: Art 59(domicile)(domicile)

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Reg Nr 44/2001 of 12/22/2000: Reg Nr 44/2001 of 12/22/2000: „Brussels I-Reg“„Brussels I-Reg“

Aspects covered:Aspects covered:

Jurisdiction (intl)Jurisdiction (intl) Lis pendens between Lis pendens between

Member StatesMember States Recognition of Recognition of

Member State Member State JudgmentsJudgments

Enforcement of Enforcement of Member State Member State JudgmentsJudgments

Member State Member State defined:defined:

Art 1 III: all EU members Art 1 III: all EU members without Denmark (Art 69 without Denmark (Art 69 ECT)ECT)

Brussels I Brussels I Convention Convention applies until…applies until…

……Convention on the Convention on the application of Brussels I-application of Brussels I-Reg for Denmark in forceReg for Denmark in force

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Members: Brussels I C & R / LuganoMembers: Brussels I C & R / Lugano

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1968 Brussels Convention

1978 1st Access Convention

1982 2nd Access Convention

1988 Lugano Convention

1989 3rd Access Convention1996 4th Access Convention1990 Lugano Extension

Brussel I-reg 2002

20042007

Temporal scope of application (Art 66)Temporal scope of application (Art 66)

General Rule:General Rule:

Art 66 I:Art 66 I:

Proceeding Proceeding instituted after instituted after 03/01/2002 03/01/2002 (vv after joining (vv after joining the EU)the EU)

„„instituted“ = „court instituted“ = „court seised“ (Art 30)seised“ (Art 30)

Extended Recognition:Extended Recognition:

Art 66 II:Art 66 II:

Judgments given after Judgments given after 03/01/2002, if 03/01/2002, if

- action (before 03/01/2002) - action (before 03/01/2002) under Brussels or Lugano under Brussels or Lugano Conventions orConventions or

- rules of jurisdiction in - rules of jurisdiction in accordance with Brussels Iaccordance with Brussels I

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Case: Case: fictitiousfictitious(temporal scope of application) (temporal scope of application)

A German resident A German resident caused a traffic caused a traffic accident with a accident with a Hungarian resident in Hungarian resident in Budapest in June 2003Budapest in June 2003

The Hungarian brought The Hungarian brought an action for damages an action for damages to the Budapest court in to the Budapest court in November 2003November 2003

… … receiving a judgment receiving a judgment in 2006. He wants to in 2006. He wants to enforce it in Germanyenforce it in Germany

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P: temporal scope:P: temporal scope: Art 66 I:Art 66 I:

proceeding instituted proceeding instituted after 03/01/2002 (+)after 03/01/2002 (+)

But: Hungary joined EU But: Hungary joined EU 01/01/2004 01/01/2004 proceeding instituted proceeding instituted after 01/01/2004 (-)after 01/01/2004 (-)

Art 66 II: Art 66 II: Judgment after Judgment after

01/01/2004 (+)01/01/2004 (+) Rules of jurisdiction in Rules of jurisdiction in

accordance with accordance with Brussels I-Reg Brussels I-Reg (Art 5 sec 3) (+)(Art 5 sec 3) (+)

Brussels I Reg and ConventionsBrussels I Reg and Conventions

Regulation Regulation supersedes Brussels supersedes Brussels Convention (except Convention (except for territories for territories excluded under Art excluded under Art 299 ECT) – Art 68299 ECT) – Art 68

Regulation supersedes Regulation supersedes conventions between conventions between Member States as Member States as mentioned in Art 69mentioned in Art 69 Only within temporal, Only within temporal,

material, personal scope material, personal scope of application of application

Regulation does not Regulation does not supersede conventions supersede conventions with third partieswith third parties

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Material Scope of Application (Art 1)Material Scope of Application (Art 1)

Art 1 I:Art 1 I:Civil and Commercial Civil and Commercial Matters Matters

Art 1 II:Art 1 II:particular exceptionsparticular exceptions

Autonomous interpretationAutonomous interpretation Nature of court irrelevant Nature of court irrelevant

(civil action in penal court)(civil action in penal court) Not, if administrative body Not, if administrative body

acting by subordinationacting by subordination Not: Not: Revenue Revenue and and CustomsCustoms

Civil Status, Succession, Civil Status, Succession, Matrimonial PropertyMatrimonial Property

Bankruptcy proceedingsBankruptcy proceedings Social SecuritySocial Security ArbitrationArbitration

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Case: Sonntag v Waidmann Rs C-172/91Case: Sonntag v Waidmann Rs C-172/91(autonomous interpretation of civil (autonomous interpretation of civil

matters)matters) Action against a public Action against a public

school teacher who school teacher who during a school during a school excursion caused a excursion caused a fatality of a pupil by fatality of a pupil by negligent and unlawful negligent and unlawful breach of his duties of breach of his duties of supervisionsupervision

Coverage provided Coverage provided under a social under a social insurance scheme insurance scheme governed by public lawgoverned by public law

Action pending in a Action pending in a criminal courtcriminal court

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P: criminal court:P: criminal court: Art 1: „Art 1: „whatever the whatever the

nature of the court”nature of the court” P: civil matter:P: civil matter:

Action for compensation Action for compensation resulting from resulting from negligence is civil in negligence is civil in nature even if brought nature even if brought in a criminal court (Art 5 in a criminal court (Art 5 (4))(4))

Teacher in a public Teacher in a public school performs same school performs same functions as teacher in functions as teacher in a private schoola private school

No exercise of public No exercise of public powers by teacher in powers by teacher in charge of pupils during charge of pupils during a school excursiona school excursion

Case: de Cavel v de Cavel (2) Rs 120/79Case: de Cavel v de Cavel (2) Rs 120/79(civil matter – maintenance)(civil matter – maintenance)

Divorce proceeding Divorce proceeding between spouses between spouses deCaveldeCavel

In this proceeding the In this proceeding the French court awarded French court awarded maintenance to one maintenance to one party payable in party payable in monthly installmentsmonthly installments

Enforcement sought in Enforcement sought in GermanyGermany

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P: civil matter:P: civil matter: Art 1 IArt 1 I

maintenance is civil maintenance is civil matter matter special special jurisdiction Art 5 No 2jurisdiction Art 5 No 2

Art 1 IIArt 1 II personal status excluded personal status excluded

maint. Judgment given maint. Judgment given in divorce proceedingin divorce proceeding

However: maintenance However: maintenance not excluded Art 5 (2) not excluded Art 5 (2)

Similar situation as Similar situation as under Art 5 (4) (ancillary under Art 5 (4) (ancillary civil matter in criminal civil matter in criminal proceeding)proceeding)

ancillary maintenance ancillary maintenance proceeding not excludedproceeding not excluded

Personal Scope of Application Personal Scope of Application (Jurisdiction Rules)(Jurisdiction Rules)

Art 3Art 3

Art 4 IArt 4 IArt 4 IIArt 4 II

Art 5, 22, 23Art 5, 22, 23

Domicile Domicile defined:defined: Art 59Art 59

Art 60Art 60

Defendant: Defendant: domiciled domiciled in any in any Member State (Art 1 III)Member State (Art 1 III)Plaintiff‘s domicile irrelevantPlaintiff‘s domicile irrelevant

Otherwise: lex fori including equal Otherwise: lex fori including equal treatment of EU-domiciliaries (for treatment of EU-domiciliaries (for the purpose of annex 1 the purpose of annex 1 jurisdictions)jurisdictions)

Particular prerequisitesParticular prerequisites

Natural person: Natural person: Definition according to Definition according to the law of the state of domicilethe law of the state of domicile

Companies/legal personCompanies/legal person: Statutory : Statutory seat, administration, branchseat, administration, branch

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Case: Case: ficticiousficticious(determination of the domicile)(determination of the domicile)

Plaintiff has residence Plaintiff has residence in Hungaryin Hungary

He rents a holiday flat He rents a holiday flat situated in Switzerland situated in Switzerland to a resident of to a resident of Russia, who has a Russia, who has a secondary residence secondary residence in Germanyin Germany

He brings his payment He brings his payment action in a Hungarian action in a Hungarian courtcourt

The action is brought The action is brought in a Swiss courtin a Swiss court

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P: personal scope:P: personal scope: Art 3 I defendant domiciled in Art 3 I defendant domiciled in

a Member statea Member state Art 59 I Art 59 I Hungarian Law Hungarian Law

no connection to Hungary no connection to Hungary no domicile in Hno domicile in H

Art 59 II Art 59 II German Law German Law § 7 § 7 BGB BGB domicile in Ddomicile in D

Brussels I-Reg applicable, but Brussels I-Reg applicable, but no jurisdiction in H (Art 22 Nr no jurisdiction in H (Art 22 Nr 1 sent 1 alt 2)1 sent 1 alt 2)

P: territorial/personal scope:P: territorial/personal scope: Switzerland is not a Member Switzerland is not a Member

state state Brussels I-Reg (-) Brussels I-Reg (-) Lugano Conv (+)Lugano Conv (+)

Art 3 (+)Art 3 (+) Art 16 Nr 1 sent 1 alt 2 (+)Art 16 Nr 1 sent 1 alt 2 (+)

Jurisdictional System (J=Jurisdiction)Jurisdictional System (J=Jurisdiction)

General JGeneral J(Art 2)(Art 2)

Particular JParticular J(Art 5-7)(Art 5-7)

Exclusive JExclusive J(Art 22)(Art 22)

J AgreementJ Agreement(Art 23, 24)(Art 23, 24)

Protective JsProtective Js Art 8-14Art 8-14 Art 15-17Art 15-17 Art 18-21Art 18-21

Domicile of defendant for all Domicile of defendant for all purposes (except exclusive Js)purposes (except exclusive Js)no „forum non conveniens“-no „forum non conveniens“-exceptionexception

Certain Certain causes of action, choice of causes of action, choice of plaintiff (except exclusive Js)plaintiff (except exclusive Js)

Certain Certain causes of action, no choice; causes of action, no choice; takes preference over other Js takes preference over other Js

Agreement or Appearance (except Agreement or Appearance (except exclusive Js)exclusive Js)

Closed systems apply toClosed systems apply to Insurance casesInsurance cases Consumer contractsConsumer contracts Individual contracts of employmentIndividual contracts of employment

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Special Jurisdiction (Art 5)Special Jurisdiction (Art 5)

General General PrerequisitePrerequisiteArt 5 S 1Art 5 S 1

Why special Why special Jurisdictions?Jurisdictions?

Are special Are special Jurisdictions Jurisdictions mandatory?mandatory?

Defendant‘s domicile in Defendant‘s domicile in oneone, , proceeding in proceeding in otherother Member State Member State

Best administration of justice Best administration of justice requires closeliness to proof, local requires closeliness to proof, local rules etc rules etc

No, plaintiff may choose between No, plaintiff may choose between Art 5 and Art 2Art 5 and Art 2

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Contract: Place of Performance (Art 5 Contract: Place of Performance (Art 5 No 1)No 1) Contract casesContract cases

Art 5 No 1Art 5 No 1

Art 5 No 1 lit aArt 5 No 1 lit a

Art 5 No 1 lit bArt 5 No 1 lit b

ContractContract: Claim arising out of contractual : Claim arising out of contractual relationship (even if validity in dispute)relationship (even if validity in dispute)

No annex J for tort claimsNo annex J for tort claims Not applicable if indefinite places of perf.Not applicable if indefinite places of perf.

Relevant Obligation: Primary obligation in Relevant Obligation: Primary obligation in questionquestion

Place of PerformancePlace of Performance: According to the : According to the law as applicable under the conflict rules law as applicable under the conflict rules of the forumof the forum

Except: Agreement as to place of Except: Agreement as to place of performanceperformance

Except: Sale of goods: place of deliveryExcept: Sale of goods: place of delivery Except: Services: place of provision of Except: Services: place of provision of

serv. serv. One place of perf. as defined for the One place of perf. as defined for the

entire contractentire contract

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Case: De Bloos v Bouyer Rs 14/76Case: De Bloos v Bouyer Rs 14/76(place of performance)(place of performance)

PartiesParties Plaintiff:Plaintiff: Grantee of an Grantee of an

exclusive exclusive distributorship right distributorship right (registered office in B)(registered office in B)

Defendant:Defendant: Grantor Grantor (established in F)(established in F)

Subject:Subject: Unilateral breach of Unilateral breach of

contract without contract without preliminary notice done preliminary notice done by the grantorby the grantor

Grantee seeking Grantee seeking dissolution of the dissolution of the contract and damagescontract and damages

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P: Jurisdiction of B courts:P: Jurisdiction of B courts: Brussels I Conv:Art 5 (1) (a): Brussels I Conv:Art 5 (1) (a):

Obligation in question Obligation in question contractual obligation of the contractual obligation of the defendant which corresponds defendant which corresponds to the contractual right relied to the contractual right relied upon by the plaintiffupon by the plaintiff

Relevant place: where the Relevant place: where the obligation of the grantor must obligation of the grantor must be performed be performed (applicable law as decided (applicable law as decided under conflict rules of the under conflict rules of the court)court)

Brussels I Reg: Art 5 (1) (b):Brussels I Reg: Art 5 (1) (b): Exclusive distributorship Exclusive distributorship

contract = provision of contract = provision of servicesservices

Relevant place: where the Relevant place: where the services (obligation of the services (obligation of the plaintiff) have been provided plaintiff) have been provided (autonomous interpretation)(autonomous interpretation)

Tort (Art 5 No 3)Tort (Art 5 No 3)

Tort definedTort defined

Jurisdiction atJurisdiction at

Tort (delict, quasi-del): Responsibility for Tort (delict, quasi-del): Responsibility for damages without contractdamages without contract

No annex J for contract claimsNo annex J for contract claims Pre-contractual obligation under good Pre-contractual obligation under good

faith are Art 5 No 3 rather than Art 5 No 1!faith are Art 5 No 3 rather than Art 5 No 1! Place where the tort occurredPlace where the tort occurred Distance torts:Distance torts:

Creditor may choose between places of Creditor may choose between places of tortious action and tort. successtortious action and tort. success

Torts with multiple pl. of success Torts with multiple pl. of success (press, (press, environment!):environment!):Choice; damages restricted to country of Choice; damages restricted to country of the courtthe court

Preventive claims („may occur“) Where Preventive claims („may occur“) Where tort threatens to occur; including tort threatens to occur; including preventive action brought by consumer preventive action brought by consumer protection agency against general protection agency against general conditions conditions TR 2007

Case: Shevill v Presse Alliance Rs C-Case: Shevill v Presse Alliance Rs C-68/9368/93

(place, where the damage occurred)(place, where the damage occurred) Fiona Shevill, a UK national & Fiona Shevill, a UK national &

resident, brought an action resident, brought an action for damages for harm caused for damages for harm caused by the publication of a by the publication of a defamatory newspaper defamatory newspaper article against Presse Alliance article against Presse Alliance SA, a French company, SA, a French company, publisher of newspaper publisher of newspaper called France-Soircalled France-Soir

France-Soir had published an France-Soir had published an article on an operation article on an operation carried out by the French carried out by the French police’s drug squad officers police’s drug squad officers at a “bureaux de change”, at a “bureaux de change”, where plaintiff was employed where plaintiff was employed

France-Soir mainly France-Soir mainly distributed in France distributed in France (237.000 copies), few copies (237.000 copies), few copies sold in the UK (230), 15.500 sold in the UK (230), 15.500 in the rest of Europe) in the rest of Europe)

Plaintiff seeks compensationPlaintiff seeks compensation

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P: Jurisdiction in the UKP: Jurisdiction in the UK Art 5 No 3 Art 5 No 3 "place where the "place where the

harmful event occurred“harmful event occurred“ „„place, where the damage place, where the damage

occurred“occurred“ places where the places where the

publication is distributed, if publication is distributed, if the victim is known in those the victim is known in those placesplaces

jurisdiction to rule jurisdiction to rule solelysolely in in respect of the harm caused respect of the harm caused in the State of the court in the State of the court seisedseised

„„place where the harmful event place where the harmful event originated”originated”

from which the libel was from which the libel was issued and put into issued and put into circulationcirculation

place where the publisher of place where the publisher of the defamatory publication the defamatory publication is established; those courts is established; those courts having jurisdiction to award having jurisdiction to award damages damages for all for all damages damages caused by the defamationcaused by the defamation

Other Special Jurisdictions (Art 5 No 2, Other Special Jurisdictions (Art 5 No 2, 4-7)4-7)

MaintenanceMaintenance(Art 5 No 2)(Art 5 No 2)

AdhesionAdhesion(Art 5 No 4)(Art 5 No 4)

AgencyAgency(Art 5 No 5)(Art 5 No 5)

Trust Trust (Art 5 No 6)(Art 5 No 6)

Salvage of cargoSalvage of cargo(Art 5 No 7)(Art 5 No 7)

Maintenance Maintenance in family relation: Forum in family relation: Forum actoris at plaintiff‘s domicile/ habitual actoris at plaintiff‘s domicile/ habitual residenceresidenceNot applicable if public entity sues for Not applicable if public entity sues for compensation under cessio legiscompensation under cessio legis

Civil damages in Criminal Court if Civil damages in Criminal Court if competent;competent; Exception: Art 61: Rights of defense Exception: Art 61: Rights of defense

Permanent Branch, own management, Permanent Branch, own management, under supervision;under supervision;only for claims arising out of the only for claims arising out of the branch‘s operationbranch‘s operation

Action as settlor, trustee, beneficiary Action as settlor, trustee, beneficiary of a trust: Domicile of the trustof a trust: Domicile of the trust

J at the place where cargo has J at the place where cargo has been/could have been arrestedbeen/could have been arrested

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Case: Bayern v Blijdenstein Rs C-433/01Case: Bayern v Blijdenstein Rs C-433/01(maintanance)(maintanance)

The daughter of The daughter of Blijdenstein, a Blijdenstein, a resident of the resident of the Netherlands, received Netherlands, received an education grant an education grant from the Free State of from the Free State of Bavaria. Bavaria.

Bavaria was seeking Bavaria was seeking reimbursement of the reimbursement of the grant at a Munich grant at a Munich court.court.

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P: JurisdictionP: Jurisdiction Art 5 (2): matters relating Art 5 (2): matters relating

to maintananceto maintanance doesn’t contain any doesn’t contain any

indication as to which indication as to which party may be the applicantparty may be the applicant

Art 5 (2) offers the Art 5 (2) offers the maintenance applicant maintenance applicant (being the “weaker party”) (being the “weaker party”) an alternative jurisdictionan alternative jurisdiction

This specific objective This specific objective prevailed over the prevailed over the objective of Art 2 objective of Art 2 (defendant as generally (defendant as generally weaker party)weaker party)

However: public body is However: public body is not in an inferior positionnot in an inferior position

Public body can’t make Public body can’t make use of Art 5 (2) in an use of Art 5 (2) in an action for recoveryaction for recovery

Several Parties (Art 6)Several Parties (Art 6) Prerequisite:Prerequisite:

Several Several DefendantsDefendants(Art 6 No 1)(Art 6 No 1)

InterventionInterventionWarrantyWarranty(Art 6 No 2)(Art 6 No 2)

CounterclaimCounterclaim(Art 6 No 3)(Art 6 No 3)

Rights in remRights in rem(Art 6 No 4)(Art 6 No 4)

(additional) defendant domiciled in a (additional) defendant domiciled in a Member StateMember State

1st Defendant: domicile in court state;1st Defendant: domicile in court state;Close connection Close connection between claims between claims (as under Art 28 III)(as under Art 28 III)

Concerning warranty, guarantee, other Concerning warranty, guarantee, other third part proceeding;third part proceeding;Not if sole intention to remove from other Not if sole intention to remove from other jurisdiction;jurisdiction;Not applicable in Not applicable in A, D & H A, D & H (Art 65)(Art 65)

Same contract or cause of actionSame contract or cause of actionCompensation:Compensation: Means of defense, no J Means of defense, no J necessarynecessary

Personal action combined with real property Personal action combined with real property actionaction

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Case: Reisch AG v Kiesel GmbH Rs C-Case: Reisch AG v Kiesel GmbH Rs C-103/05103/05

(several defendants)(several defendants) R, a Liechtenstein R, a Liechtenstein

company, brought an company, brought an action for payment to action for payment to the District Court Bezau the District Court Bezau (A) against G, domiciled (A) against G, domiciled in Austria, and K, a in Austria, and K, a German companyGerman company

K served as security for K served as security for GG

action against G was action against G was dismissed, because dismissed, because bankruptcy bankruptcy proceedings had been proceedings had been instituted before R’s instituted before R’s actionaction

K objected jurisdictionK objected jurisdiction

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P: Jurisdiction:P: Jurisdiction: Art 6 I: Art 6 I: a defendant may a defendant may

be sued, if he is one of a be sued, if he is one of a number of defendants, in number of defendants, in the courts for the place the courts for the place where any one of them is where any one of them is domicileddomiciled

provisions of the provisions of the regulation must be regulation must be interpreted independently, interpreted independently, by reference to its scheme by reference to its scheme and purposeand purpose

cannot be interpreted with cannot be interpreted with regard to the effects of regard to the effects of domestic rulesdomestic rules

Art 6 I Art 6 I may be relied on may be relied on even if the action is even if the action is regarded inadmissible in regarded inadmissible in relation to the first relation to the first defendant from the very defendant from the very moment it is broughtmoment it is brought

Exclusive Jurisdiction (Art 22)Exclusive Jurisdiction (Art 22)

Scope of Scope of applicationapplication

Why exclusive Why exclusive Jurisdiction?Jurisdiction?

„„regardless of domicile“ – even regardless of domicile“ – even if defendant not domiciled in if defendant not domiciled in any Member Stateany Member State

Applies only to criteria situated Applies only to criteria situated in Member Statesin Member States

Usually public interest involvedUsually public interest involved No valid prorogation againstNo valid prorogation against No entering an appearance No entering an appearance

against exclusive Jurisdiction. against exclusive Jurisdiction.

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Real property (Art 22 No 1)Real property (Art 22 No 1)

Real rights, Real rights, rentrentdefineddefined

Holiday Flats Holiday Flats exceptionexception

Immovable property rightsImmovable property rights: : against everybody; no personal against everybody; no personal claimsclaims

TenanciesTenancies: right of use against : right of use against payment (autonomous def.)payment (autonomous def.)

ImmovablesImmovables defined by lex fori defined by lex fori

Private tenanciesPrivate tenancies, not to exceed 6 , not to exceed 6 monthsmonths

Both parties domiciled in same Both parties domiciled in same Member StateMember State

additionaladditional J of courts of domicile J of courts of domicile

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Case: Gaillar v Chekili Rs C-518/99Case: Gaillar v Chekili Rs C-518/99(exclusive Jurisdiction)(exclusive Jurisdiction)

Gaillard sold immovable Gaillard sold immovable properties in France to properties in France to Chekili Chekili

The contract was agreed The contract was agreed on to be officially attested on to be officially attested within four months, but it within four months, but it never happenednever happened

G brought proceedings G brought proceedings against C for rescission of against C for rescission of the contract and for the contract and for damages damages

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P: jurisdiction:P: jurisdiction: Art 22 (1): Art 22 (1): autonomous autonomous

definition of “proceedings definition of “proceedings which have as their object which have as their object rights in rem in immovable rights in rem in immovable property”property”

only actions to determine only actions to determine the extent, content, the extent, content, ownership or possession of ownership or possession of immovable propertyimmovable property

Even if action for rescission Even if action for rescission of a sales contract may of a sales contract may have immediate impact on have immediate impact on the title to the property, it the title to the property, it is based on a right in is based on a right in personam.personam.

as it may only be raised as it may only be raised inter partes, not erga inter partes, not erga omnesomnes

not within the scope of not within the scope of Art 22(1)Art 22(1)

J Agreements (Art 23) / Scope of J Agreements (Art 23) / Scope of ApplicationApplication

Material Material ScopeScope

Territorial Territorial ScopeScope

Applicability Applicability (temporal)(temporal)

Admissibility, parties, form, Admissibility, parties, form, gen.condgen.cond

Particular relationshipParticular relationship A court or courts of a Member State A court or courts of a Member State Material validity?Material validity?

Domicile of Domicile of oneone party in Member party in Member StateState

Courts of a Member StateCourts of a Member State No mere national case (unwritten)No mere national case (unwritten)

Art 66: Applies also to agreements Art 66: Applies also to agreements made before 03/01/2002made before 03/01/2002

Exception: Protection of trust, if Exception: Protection of trust, if agreement was valid!agreement was valid!

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J Agreements (Art 23) / formJ Agreements (Art 23) / form In WritingIn Writing

Art 23 I lit a/1Art 23 I lit a/1

Evidenced inEvidenced inWritingWritingArt 23 I lit a/2Art 23 I lit a/2

PracticesPracticesArt 23 I lit bArt 23 I lit b

Usage inUsage inintl Tradeintl TradeArt 23 I lit cArt 23 I lit c

Written consent of both parties givesWritten consent of both parties givesproof of agreementproof of agreement

Incl letters, e-mail (Art 23 II)Incl letters, e-mail (Art 23 II) Gen. Cond.: Prior knowledge necessaryGen. Cond.: Prior knowledge necessary

Agreement necessary Agreement necessary one-sided confirmation evidence of one-sided confirmation evidence of

prior agreementprior agreement

Arising out of earlier relationshipArising out of earlier relationship Example: Gen. Cond. in transport paperExample: Gen. Cond. in transport paper

InternationalInternational Trade Trade Widely known/regularly observed in Widely known/regularly observed in

this type of tradethis type of trade Both parties aware/ought to be awareBoth parties aware/ought to be aware

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Case: Castelletti v Trumpy Rs C-159/97Case: Castelletti v Trumpy Rs C-159/97(choice of Jurisdiction)(choice of Jurisdiction)

Trumpy delivered goods Trumpy delivered goods to Casteletti on board a to Casteletti on board a vessel; both are Italian vessel; both are Italian companiescompanies

problems during problems during unloading unloading Castelletti Castelletti sueing Trumpy in an sueing Trumpy in an Italian court for damagesItalian court for damages

Bill of lading, general Bill of lading, general cond. on reverse side: cond. on reverse side: disputes shall be disputes shall be determined by HCJ determined by HCJ LondonLondon

Front side: reference to Front side: reference to the clauses on the back the clauses on the back sideside

BelowBelow the reference the reference signature of the shippersignature of the shipper

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Art 22 I lit a (-)Art 22 I lit a (-) Signature below reference Signature below reference

consent, expressed by signature consent, expressed by signature does not include terms on back does not include terms on back sideside

Art 22 I lit cArt 22 I lit c the provision's aim is still to the provision's aim is still to

ensure that there was real consentensure that there was real consent consent can be presumed where consent can be presumed where

commercial usages exist and the commercial usages exist and the parties are or ought to have been parties are or ought to have been aware of themaware of them

The existence of a usage must be The existence of a usage must be determined in relation to the determined in relation to the branch in which the parties branch in which the parties operate.operate.

It is established where a particular It is established where a particular course of conduct is generally and course of conduct is generally and regularly followed by operators in regularly followed by operators in that branch when concluding that branch when concluding contracts of a particular type. contracts of a particular type.

It is not necessarily to be It is not necessarily to be established in specific countries or established in specific countries or (in all) Member States. (in all) Member States.

No specific form of publicityNo specific form of publicity

Consumer Contracts (Art 15-17) / Consumer Contracts (Art 15-17) / ScopeScope MeaningMeaning

Art 15 IArt 15 I

Material Material scope of scope of applicationapplicationArt 15 IArt 15 I lit alit a lit blit b lit clit c

Territorial Territorial scope of scope of applicationapplication

Preference over all other JsPreference over all other Js Exception: Art 5 V applies; only if other Exception: Art 5 V applies; only if other

party domiciled in a Member State with party domiciled in a Member State with branch in other M.S.branch in other M.S.

Consumer v. Entrepreneur? Consumer v. Entrepreneur? Type of contractType of contract

Sale of goods on installmentsSale of goods on installments Any contract to finance sale of goodsAny contract to finance sale of goods Pursuing commercial or professional Pursuing commercial or professional

activity in Member State of activity in Member State of consumer‘s domicile (Including fake consumer‘s domicile (Including fake sweepstake winning notifications)sweepstake winning notifications)

Art 4 applies, Art 15 ss only if other Art 4 applies, Art 15 ss only if other party domiciled in Member Stateparty domiciled in Member State

Exception: Art 15 (2): agency in Exception: Art 15 (2): agency in Member State sufficientMember State sufficient

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Consumer Contracts (Art 15-17) / Consumer Contracts (Art 15-17) / JurisdictionJurisdiction

Consumer as Consumer as plaintiff plaintiff Art 16 ÎArt 16 Î

Consumer as Consumer as DefendantDefendantArt 16 IIArt 16 II

Agreements Agreements on Jurisdictionon JurisdictionArt 17Art 17

Courts in the state of consumer‘s Courts in the state of consumer‘s or other party‘s domicileor other party‘s domicile

If agency: Art 5 No 5: Courts in the If agency: Art 5 No 5: Courts in the state of agency‘s domicilestate of agency‘s domicile

OnlyOnly courts of M.S. of consumer‘s courts of M.S. of consumer‘s domiciledomicile

CounterclaimCounterclaim remains possible remains possible

Art 17 takes preference over Art Art 17 takes preference over Art 2323 Agreement after dispute arises Agreement after dispute arises In favor of the customerIn favor of the customer Conferring J to the courts of the Conferring J to the courts of the

M.S. where both parties M.S. where both parties habitual resident when entering habitual resident when entering into the agreementinto the agreement

TR 2007

Case: Rudolf Gabriel Rs C-96/00Case: Rudolf Gabriel Rs C-96/00(price combined with order for goods)(price combined with order for goods)

Mr Gabriel (A Mr Gabriel (A domiciled) received domiciled) received personalized letter personalized letter from a German from a German companycompany at his private addressat his private address in a sealed envelopein a sealed envelope

made him believe, made him believe, that that he won ATS 49.700he won ATS 49.700 he would receive it he would receive it

simply on demandsimply on demand if he would order goods if he would order goods

for ATS 200for ATS 200 He wants to bring an He wants to bring an

action in Austriaaction in Austria

TR 2007

P: Art 15 I lit c:P: Art 15 I lit c: ContractContract

consumer entered into consumer entered into contract particularly contract particularly with regard to promise with regard to promise of financial benefitof financial benefit

his interest in such his interest in such benefit is significantly benefit is significantly greater than in the greater than in the goods orderedgoods ordered

Consumer met all Consumer met all conditions by entirely conditions by entirely accepting the proposalaccepting the proposal

price considered as price considered as part of the contractpart of the contract

All other conditions (+)All other conditions (+) Art 15 lex specialis Art 5Art 15 lex specialis Art 5

Matters related to Insurance (Art 8–14)Matters related to Insurance (Art 8–14) Insurance Insurance

matters matters defineddefined

JurisdictionJurisdiction Art 9, 10, 11Art 9, 10, 11

Art 12, 11 IIIArt 12, 11 III

Art 13Art 13

TR 2007

Action between insurer and insured Action between insurer and insured (policyholder) (policyholder)

Not applicable to re-insurer/re-Not applicable to re-insurer/re-insurer-casesinsurer-cases

Similar concept as in consumer Similar concept as in consumer cases:cases: Against insurer Against insurer

also at plaintiff‘s domicile; additional also at plaintiff‘s domicile; additional rules for liability and real property rules for liability and real property insuranceinsurance

Action against insured Action against insured only in Member State of domicile, only in Member State of domicile,

counterclaim or joint parties in counterclaim or joint parties in liability casesliability cases

Restriction of Jurisdiction AgreementRestriction of Jurisdiction Agreement

Individual Contracts of Employment (Art Individual Contracts of Employment (Art 18-21)18-21)

EmploymeEmployment contract nt contract defineddefined

JurisdictionJurisdiction Art 19Art 19

Art 20Art 20

Art 21Art 21

Dependent employment in a broad Dependent employment in a broad meaningmeaning

Not including self-employed Not including self-employed Not including collective labor law Not including collective labor law

Action against employer atAction against employer at His domicile (Art 19 No 1)His domicile (Art 19 No 1) Habitual place of work (Art 19 No 2 lit a), if Habitual place of work (Art 19 No 2 lit a), if

none place of business which engaged the none place of business which engaged the employee (Art 19 No 2 lit b)employee (Art 19 No 2 lit b)

Employer with branch in Member State Employer with branch in Member State presumed to be domiciled there (Art 18 II)presumed to be domiciled there (Art 18 II)

Action against employeeAction against employee Only in Member State of domicile or Only in Member State of domicile or

counterclaimcounterclaim

Jurisdiction agreements only ifJurisdiction agreements only if entered into after dispute started, orentered into after dispute started, or in favor of employeein favor of employee

TR 2007

Examination as to Jurisdiction (Art 25, Examination as to Jurisdiction (Art 25, 26)26)

Exclusive J of Exclusive J of other courtother court

Own Own JurisdictionJurisdiction

Court declares on its own motion that Court declares on its own motion that it has no J (Art 25)it has no J (Art 25)

Exception: Priority prevails if both Exception: Priority prevails if both courts have exclusive J (Art 29)courts have exclusive J (Art 29)

No examination if defendant enters an No examination if defendant enters an appearance (Art 26 I due to Art 24)appearance (Art 26 I due to Art 24)

If defendant does not enter an app:If defendant does not enter an app:Examination ex officio:Examination ex officio:

Stay of the proceeding until proof of Stay of the proceeding until proof of service (Art 26 II-IV)service (Art 26 II-IV) Art 19 EC Reg on service (Art 26 III)Art 19 EC Reg on service (Art 26 III) Art 15 Hague Conv on service (Art Art 15 Hague Conv on service (Art

26 IV)26 IV)

TR 2007

Provisional & protective measures (Art Provisional & protective measures (Art 31)31)

Provisional Provisional measuresmeasuresdefineddefined

JurisdictionJurisdiction Art 31Art 31

TR 2007

Only if within the reg‘s Only if within the reg‘s material scope of applicationmaterial scope of application

Including measures for Including measures for preliminary performance, if preliminary performance, if restitution securedrestitution secured

Not including measures for Not including measures for discovery as to the meritsdiscovery as to the merits

Either under the rules of Either under the rules of Brussels I-RegBrussels I-Reg

Or under the rules of the lex Or under the rules of the lex fori even if the courts of fori even if the courts of another Member State have another Member State have jurisdiction as to the jurisdiction as to the substancesubstance

Lis pendens (Art 27)Lis pendens (Art 27) Same cause of Same cause of

action action (Art 27)(Art 27)

ConsequencesConsequencesArt 27 IArt 27 IArt 27 IIArt 27 II

When court When court seised (Art 30)seised (Art 30)

Identity as to the central problem Identity as to the central problem of the action of the action Even if not same cause of action Even if not same cause of action

in lex foriin lex fori Only action, not the defenses Only action, not the defenses

relevantrelevant Same partiesSame parties

Stay of proc. in court 2nd seisedStay of proc. in court 2nd seised Declines J if J of court 1st seised Declines J if J of court 1st seised

has been establishedhas been established

Writ of action lodged with the courtWrit of action lodged with the courtif plaintiff takes all subsequent if plaintiff takes all subsequent stepssteps

TR 2007

Case: Gubisch v Palumbo Rs 144/86Case: Gubisch v Palumbo Rs 144/86(same cause of action)(same cause of action)

Gubisch Maschinenfabrik Gubisch Maschinenfabrik KG (registered office in D) KG (registered office in D) and Mr Palumbo (I and Mr Palumbo (I resident) are disputing the resident) are disputing the validity of a contractvalidity of a contract

Gubisch brought an action Gubisch brought an action for specific performance in for specific performance in the Landgericht Flensburgthe Landgericht Flensburg

Later Mr Palumbo brought Later Mr Palumbo brought an action to declare the an action to declare the contract void in the contract void in the Tribunale di RomaTribunale di Roma

Jurisdiction of TdRoma?Jurisdiction of TdRoma?

TR 2007

Art 27 IArt 27 I Same cause of actionSame cause of action

Autonomous interpret.Autonomous interpret. positive action positive action for for

performance of a performance of a contractual obligation contractual obligation = negative action = negative action for for rescission or discharge rescission or discharge of the same contractof the same contract

Moment the court is seisedMoment the court is seised ECJ referred to litispendency ECJ referred to litispendency

in national lex fori (under Br in national lex fori (under Br I Convention)I Convention)

Brussel I-reg:Brussel I-reg: Art 30 Art 30 Autonomous European Autonomous European definition of litispendencydefinition of litispendency

Related proceedings (Art 28)Related proceedings (Art 28) Related ActionsRelated Actions

(Art 28)(Art 28)

ConsequencesConsequences Art 28 IArt 28 I Art 28 IIArt 28 II

If decision in different court could If decision in different court could lead to a Art 34 III situationlead to a Art 34 III situation Same cause of action not Same cause of action not

necessarynecessary Same parties not necessarySame parties not necessary

Court 2nd seised Court 2nd seised maymay stay stay proceedgproceedg

MayMay also decline jurisdiction also decline jurisdiction

TR 2007

No other concept than lis pendens and related No other concept than lis pendens and related proceedings proceedings to solve concurring jurisdiction to solve concurring jurisdiction

no injunction under national law of civ.proc.no injunction under national law of civ.proc.

Recognition of JudgmentsRecognition of Judgments JudgmentJudgment

Art 32Art 32

RecognitionRecognitionArt 33 II, IIIArt 33 II, III

Recognition Recognition as Rule as Rule Art 33 IArt 33 I

Impediments Impediments to Recognitionto Recognition

Decision as to the meritsDecision as to the merits Not: procedural decisionsNot: procedural decisions

No particular proceeding No particular proceeding (incidenter)(incidenter)

Application for formal decision Application for formal decision admissibleadmissible

No révision au fond (Art 36)No révision au fond (Art 36) No examination of p.i.l. (Art 36)No examination of p.i.l. (Art 36) No examination of J (Art 35 III)No examination of J (Art 35 III)

Art 34 (next slide)Art 34 (next slide) Conflict with certain J rules (Art 35 I)Conflict with certain J rules (Art 35 I)

Consumer, Insurance, ExclusiveConsumer, Insurance, Exclusive NotNot contract for employment contract for employment

TR 2007

Impediments against recognition (Art Impediments against recognition (Art 34)34)

Public policyPublic policy No 1No 1

Service of Service of ActionAction No 2No 2

IrreconcilabilityIrreconcilability

No 3No 3 Nr 4Nr 4

Material or proceduralMaterial or procedural Only if manifestly contrary to p.p.Only if manifestly contrary to p.p.

Service not timely (for defense)Service not timely (for defense) Formal mistakes relevant only if Formal mistakes relevant only if

related to preparation of defenserelated to preparation of defense No appearanceNo appearance Exception: Challenge of judgment Exception: Challenge of judgment

in Member State of originin Member State of origin

Conflicting issues between same Conflicting issues between same partiesparties

J from M.S. of recognition prevailsJ from M.S. of recognition prevails J from other M.S. or third state J from other M.S. or third state

prevails only if earlierprevails only if earlier

TR 2007

Case: Lancray v Peters C-305/88Case: Lancray v Peters C-305/88(service duly effected)(service duly effected)

Lancray SA (French Lancray SA (French company) bringing an company) bringing an action against Peters action against Peters und Sickert KG und Sickert KG (German company) in (German company) in FranceFrance

Summons were served Summons were served timely but only in timely but only in French languageFrench language

Peters did not appear Peters did not appear at the hearingat the hearing

Court granted Lancray Court granted Lancray a default judgmenta default judgment

Lancray seeks Lancray seeks enforcement in enforcement in GermanyGermany

TR 2007

Art 27 No 2 BI-Conv:Art 27 No 2 BI-Conv: two prerequisitestwo prerequisites

Service duly in timeService duly in time Service duly effectedService duly effected

Both necessaryBoth necessary recognition to be recognition to be

refused if service has not refused if service has not been done in due form been done in due form

BI-Conv does not govern BI-Conv does not govern service service service is part service is part of the proceeding before of the proceeding before the court giving the the court giving the judgment judgment service must service must be according to that law, be according to that law, including International including International Convention (Hague)Convention (Hague)

Cure of defective service Cure of defective service only according to that only according to that lawlaw

Art 34 No 2 BI-reg:Art 34 No 2 BI-reg: two prerequisitestwo prerequisites

Service duly in timeService duly in time In a way, which enables to In a way, which enables to

arrange for defensearrange for defense not all formalities of service not all formalities of service

have to be methave to be met autonomous minimum autonomous minimum

standardstandard if service not duly effected, if service not duly effected,

it must be determined it must be determined whether defendant could whether defendant could arrange for his defensearrange for his defense

cure of defective service no cure of defective service no longer relevantlonger relevant

Defendant obliged to Defendant obliged to appeal against the appeal against the judgment judgment otherwise otherwise loosing objection against loosing objection against recognitionrecognition

Enforcement (System only)Enforcement (System only) SubjectSubject

„„Exequatur“Exequatur“

PrerequisitePrerequisitess

AppealAppeal

Judgment (Art 38)Judgment (Art 38) Authentic instruments (Art 57)Authentic instruments (Art 57) Only from Member StatesOnly from Member States

No „automatic“ enforcementNo „automatic“ enforcement Declaration of enforceability, Declaration of enforceability,

application necessary (Art 38 I)application necessary (Art 38 I)

Enforceability in State of originEnforceability in State of origin Only formal documentation in 1st Only formal documentation in 1st

instance (Art 53-56)instance (Art 53-56)

Recognition not to be examinedRecognition not to be examined May be brought: Art 43/Annex 3May be brought: Art 43/Annex 3 May be based on grounds for non-May be based on grounds for non-

recognition only (Art 45 I)recognition only (Art 45 I)TR 2007