Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter B.11: Brussels I (Convention and Regulation)
I. The Brussels I system
In order to strengthen the legal protection of cross-border business transactions in the European Communities, the six founding EC (now EU) Member States signed the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ( OJ L 299/32, consolidated version,  OJ C 27/1). This instrument, adopted on the basis of art 220 EEC Treaty (Treaty of 25 March 1957 establishing the European Economic Community, 294–298 UNTS), aimed primarily at facilitating recognition and enforcement of judicial decisions in →civil and commercial matters. However, its regulatory approach was more ambitious as it created uniform rules on jurisdiction and pendency in order to comprehensively coordinate cross-border litigation in civil and commercial matters.
p. 220Moreover, the contracting states conferred jurisdiction on the CJEU (→Court of Justice of the European Union) to interpret the Convention so as to ensure its coherent and uniform application. The ensuing CJEU case-law also revealed some of the shortcomings of the Convention, thus constituting an adequate basis for academic debates and legislative reforms. After entry into force of the Treaty of Amsterdam (Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and certain related acts (consolidated version),  OJ C 340/01) in 1999 which gave competence to the EU in the field of private international law and international civil litigation, the Convention was replaced by the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters,  OJ L 12/1), which implemented some changes, mainly those resulting from the case-law of the CJEU. Because of its non-participation in Title IV EEC Treaty (now Title V of Part 3 TFEU (Treaty on the Functioning of the European Union (consolidated version),  OJ C 326/47)), Denmark did not apply the Brussels I Regulation until 2005, when a bilateral agreement was reached between this country and the EU (Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters of 19 October 2005,  OJ L 300/55; Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 19 October 2005,  OJ L 299/62). In 2012 and after several years of academic and political discussion, the Recast of the Brussels I Regulation (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast),  OJ L 351/1) was adopted and entered into force on 10 January 2015. These three successive instruments constitute the core of what is commonly called the Brussels I system. After having regard to its salient features and specificities, we will discuss its evolution since 1968 and its future prospects after the recent Recast of the Brussels I Regulation.
II. Salient features and specificities of the Brussels I system
Before 1968, there were several bilateral conventions on the recognition of judgments between European countries. However, such treaties did not involve all of these countries. For example, there was no convention between →France and →Germany. In order to avoid drafting several bilateral treaties with different wording and divergent national interpretations, the decision was taken to have only one general multilateral convention between the Member States of the EC and to hand over its interpretation to the CJEU.
1. A dual multilateral convention
The Brussels Convention was often described as a ‘dual’ or ‘double’ instrument, reflecting the fact that it contained not only rules regarding recognition and enforcement of judgments but also uniform heads of jurisdiction. The fact that these two sets of rules are dealt with together in the same multilateral convention was rather novel in 1968 in Europe. However, as the goal was to create an efficient common market where judgments could circulate nearly as freely as workers or services, a broad and fast acceptance of judgments emanating from other Member States was needed. With the exception of →public policy, the main question when recognizing a foreign judgment was whether it had been rendered by a competent tribunal. Hence, the solution was to create uniform rules of jurisdiction accepted and applied by every court. This led to the suppression, or at least to a substantial limitation, of the power to refuse exequatur of foreign judgments on jurisdictional grounds. Article 28 of the Convention (art 35 Brussels p. 221I Regulation, art 45(2) Brussels I Regulation (recast)) thus precluded the courts of the Member State in which enforcement is sought from reviewing the jurisdiction of the court of origin or using the public policy exception to that effect. By adopting this mechanism, the Brussels Convention implemented the guiding principle of mutual trust. Exceptions to this prohibition of review only exist if the judgment conflicts with some jurisdictional rules in matters of insurance, consumer and employment contracts or exclusive heads of jurisdiction, but even in this situation the court of the Member State in which enforcement is sought remains bound by the findings of fact on which the court of the Member State of origin based its jurisdiction (art 35(2) Brussels I Regulation, art 45(2) Brussels I Regulation (recast)). Driven by the principles of proximity and predictability of the competent tribunal, the rules on jurisdiction ensured that the forum is foreseeable for the defendant and, for the claimant, that the judgment rendered in one of the states will be accepted in all others. To that end, it was also necessary to prevent claimants from using national exorbitant heads of jurisdiction, such as arts 14 and 15 French Civil Code (Code Civil of 21 March 1804) or section 23 German Code of Civil Procedure (Zivilprozessordnung of 5 December 2005, BGBl. I 3202, as amended), against European-based defendants. However, these national grounds of jurisdiction still applied with regard to defendants domiciled outside the EU.
2. The role of the CJEU in interpreting the Brussels Convention and Regulations
a) Preliminary references
In order to ensure the uniform application of the Convention, the Luxembourg Protocol (Protocol on the interpretation of the 1968 Convention by the Court of Justice (consolidated version),  OJ C 27/01), signed on 3 June 1971, gave competence to the CJEU to interpret it. This system allowed national supreme courts, appellate courts and courts designated by art 37 of the Convention to refer questions to the CJEU through the procedure of preliminary ruling. With the adoption of the Brussels I Regulation, the legal basis changed to art 68 EEC Treaty, which restricted the possibility of making a preliminary reference to courts adjudicating at final instance. This unfortunate change was overturned by the Lisbon Treaty (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007,  OJ C 306/1, consolidated version,  OJ C 326/1) in 2009. Henceforth, according to art 267 TFEU, any national court can initiate the procedure of preliminary ruling. This competence of the CJEU to interpret first the Convention and later the Regulation guaranteed a uniform interpretation and ultimately the undeniable success of these instruments throughout the last 50 years. Between 1976 and 2014, more than 200 judgments on the Convention and the Regulation were delivered, among which some 60 per cent answered references for preliminary ruling made by supreme courts of the EU Member States. This case-law led to a fertile dialogue between national and European judges and created a real acceptance of the legitimacy of the CJEU among legal practitioners and academics within the EU.
b) Autonomous interpretation
When asked to interpret the Convention and later the Regulation, the CJEU was frequently faced with questions regarding the precise definition of concepts laid down by these instruments. Indeed, most of the notions used by these texts are known to national laws, but their meaning can differ between Member States. Hence, the CJEU has often used the method of ‘autonomous interpretation’ of the terms of the Convention (→Interpretation, autonomous). It did so for the first time in Eurocontrol (Case C-29/76 LTU Lufttransportunternehmen GmbH & Co KG v Eurocontrol  ECR 1541) when it had to define the meaning of ‘civil and commercial matters’. In this decision, the CJEU refused to define it by reference to the law of one of the Member States, preferring an autonomous definition of the concept, having regard to the objectives and principles of the Convention and to the general principles which stem from the corpus of the national legal systems. This method of autonomous interpretation progressively became the default rule, and references to national laws are now rare. Interestingly, in order to find the autonomous definition of a concept, the CJEU often returned to the core of the concept. For example, the Court applied factual criteria to determine the EU understanding of ‘the place of delivery’ (Case C-381/08 Car Trim GmbH v Key Safety Systems Srl  ECR I-1255) or what constitutes a ‘default judgment’ (Case C-78/95 Bernardus Hendrikman and Maria Feyen v Magenta Druck & Verlag GmbH  ECR I-4943) within the meaning of art 27(2) of the Convention. By doing so, the Court effectively began to define the terms and concepts of a genuine European civil procedure, which differ, at times substantially, from their national equivalents. This difference is clear when it comes to European rules on pendency, which were defined autonomously (see Case C-144/86 Gubisch Maschinenfabrik KG v Giulio Palumbo  ECR 4861) with a broader understanding of the notions of identity of parties, cause of action and particularly object of litigation than national interpretations (Case C-406/92 The owners of the cargo lately laden on board the ship ‘Tatry’ v the owners of the ship ‘Maciej Rataj’  ECR I-5439).
c) p. 222Principle-based reasoning of the CJEU
In order to guide its autonomous interpretation, the CJEU (→Court of Justice of the European Union) consistently referred to the ‘principles and objectives’ of the Convention (eg Case C-12/76 Industrie Tessili Italiana Como v Dunlop AG  ECR 1473). This principle-based reasoning consists in interpreting the gaps of the Convention by having regard to its underlying purpose or to more general principles of EU law. This led the CJEU to develop a non-exhaustive set of principles governing the application of the Convention.
The overarching principle in European procedural law is mutual trust, and its direct consequence – the free movement of judgments, which entails a full respect for judgments originating from other Member States. This free movement of judgments, which is the main goal of the Convention (and the Brussels I system), has entailed two direct consequences. First, the exequatur procedure constitutes a complete and autonomous system and thus excludes any means of challenging any declaration of enforceability apart from those provided for by the Convention (Case C-148/84 Deutsche Genossenschaftsbank v SA Brasserie du Pêcheur  ECR 1981). Second, any exception to the free movement of judgments has to be interpreted narrowly (Case C-7/98 Dieter Krombach v André Bamberski  ECR I-1935).
The second main principle underlying the Convention as a whole is the protection of the rights of the defence, which is a necessary condition for the free movement of judgments. As the Court stated, ‘it is because of the guarantee given to the defendant in the original proceedings that the Convention, in Title III, is very liberal in regard to recognition and enforcement’ (Case C-125/79 Bernard Denilauler v SNC Couchet Frères  ECR 1553). One exception to this liberalism is the proper →service of documents, which is of paramount importance and as such can be controlled in the Member State of origin (art 28(2) Brussels I Regulation (recast)) as well as in the Member State in which enforcement is sought (art 45(1)(b) Brussels I Regulation (recast)).
The third main principle is legal certainty, which has often been used by the CJEU in order to preserve a uniform application of the Regulation. This principle excludes any national provision that contradicts the Regulation, and guarantees that everyone has equal rights under the Regulation and thus an equal access to justice. In a narrower sense, legal certainty also means that the competent court must be both easily identifiable by the claimant and reasonably foreseeable by the defendant (Case C-269/95 Francesco Benincasa v Dentalkit Srl  ECR I-3767).
Finally, it must be said that giving the power to interpret the Convention to a European institution meant that it would not be interpreted hermetically, but rather with regard to Community legislation and principles. Because of this integration into the EU, the CJEU has never been a supreme court of private international law, and the Convention has never been a classic international treaty. In addition, the CJEU regularly made reference to other instruments, such as the Unfair Terms Directive (Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,  OJ L 95/29), when interpreting the Brussels Convention or Regulation (eg Case C-167/00 Verein für Konsumenteninformation v Karl Heinz Henkel  ECR I-8111). As a result, the Brussels I Regulation became a fully integrated part of European secondary law.
III. Evolution of the Brussels I system since 1968
The Brussels Convention formed part of the ‘acquis communautaire’, and the new EC Member States had to accede to it. It was amended for each accession of new Member States either to adapt it to the national specificities of the newcomers or to correct some flaws revealed by the practice, and these amended versions had to be ratified by each Member State. The first and main amendment was effected in 1978 for the accession of →Denmark, →Ireland and the →United Kingdom. On this occasion, the explanatory report of the amendments was written by Peter Schlosser (Peter Schlosser, ‘Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed at Luxembourg, 9 October 1978’  OJ C 59/71 (Schlosser Report)) and p. 223published together with the original report on the Convention, written by Paul Jenard (Paul Jenard, ‘Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters’  OJ C 59/1 (Jenard Report)), before its adoption. The Schlosser Report aimed at clarifying the wording of the Convention to adapt it to the specificities of common law, for example by better defining the meaning of →civil and commercial matters. Rules on special jurisdiction for →trusts were also included (arts 5 and 53), while several provisions were added in the field of maritime law (arts 5(7), 6a and 12a). In comparison, the amendments made for the accession of →Greece in 1981, of →Spain and →Portugal in 1989 and of →Austria, →Finland and →Sweden in 1996 were far more limited. Thus, between 1968 and 2012, modifications to the Convention are rather to be found in the interpretations given by the CJEU (→Court of Justice of the European Union).
Many amendments were made when the Brussels I Regulation was adopted, but again they can be better described as a smooth evolution rather than a complete overhaul. This is clearly expressed by Recital (19) of the Regulation, which stipulates that continuity between the Convention and the Regulation, including on the interpretation given by the CJEU, should be ensured. Indeed the ‘revolution’ is not to be found in the Brussels I Regulation itself but around it, in the multitude of different Regulations in the field of private international law and European procedure that now constitute the so-called Brussels I system.
1. From the 1968 Convention to the 2012 Regulation
As an international treaty, the 1968 Brussels Convention was negotiated by governments and had to be ratified by all Member States each time it was amended. Transforming it into the Brussels I Regulation enabled this problem to be avoided, but also entailed a change of the decisional process with the involvement of the Commission and the European Parliament, ensuring the prevalence of EU law. It was also the occasion to improve the existing system and to correct certain flaws revealed by three decades of practice.
a) Recognition of judgments
Improving the system first meant easing the exequatur procedure even more, and the procedure was changed to that end. Under the Convention, exequatur used to be an ex parte procedure, although the first instance judge still had to verify that the foreign judgment had not contravened arts 27 and 28 of the Convention. Under Brussels I, this first instance control was purely formal, and the judge could only check the existence of the foreign judgment and that of the certificate assessing its enforceability. It was only before the appellate court that grounds for refusal could be examined. Moreover, the Brussels I Regulation unified the appellate procedures and art 43 prescribed a sole procedure to appeal against a decision granting or refusing exequatur. The grounds for refusal were also modified in the Regulation. First, art 27(4) of the Convention was abolished, which had previously allowed the enforcement judge to refuse exequatur if the foreign judge applied different choice-of-law rules in matters concerning the status or legal capacity of natural persons (→Capacity and emancipation), rights in property (→Property and proprietary rights) arising out of a matrimonial relationship, wills or succession. Second, art 27(2) was amended in order to facilitate recognition of default judgments by deleting the requirement of a regular service (art 34(2) of the Regulation).
b) Heads of jurisdiction
Regarding direct jurisdictional rules, the Regulation largely retained the system of the Convention, relying on a general rule of actor sequitur forum rei contained in art 2 followed by additional possible forums, for, among others, contractual matters and torts, justified by proximity. Sections 3 and 4 deal with consumer and insurance contracts. The protection of these weak parties remained the same, although the scope of →consumer contracts was substantially modified. Indeed, contrary to art 13(3) of the Convention, art 15(1)(c) of the Brussels I Regulation covers every kind of contract concluded with a passive consumer, including those concluded on the internet (→Internet, jurisdiction), where the professional directs its activity towards the consumer’s state. Another important feature of the Regulation lies in the creation of specific jurisdictional rules for employment contracts, aimed at protecting employees as weaker parties. Exclusive competences in section 6 were left largely unchanged.
p. 224In contractual matters, art 5(1) of the Convention gave competence to the court of the →place of performance of the obligation in question. In 1976, the CJEU had held that the obligation in question was the obligation ‘which corresponds to the contractual right on which the plaintiff’s action is based’ (Case C-14/76 A De Bloos, SPRL v Société en commandite par actions Bouyer  ECR 1497). In Tessili (Case C-12/76 Industrie Tessili Italiana Como v Dunlop AG  ECR 1473), it was decided that the place of performance had to be determined by the law applicable under the private international law rules of the seized court. This rendered the application of art 5(1) complicated and unpredictable, which led to national resistance, with some authors even calling for its deletion (Georges Droz, ‘Delendum est forum contractus’ (1994) 41 Recueil Dalloz 351). Acknowledging these difficulties, the Regulation added two important clarifications to art 5(1) in paragraph (b), which factually define the place of performance in the case of sale of goods (→Sale contracts and sale of goods) or provision of services. The clarifications did not suppress the difficult conflict-of-law method, which was maintained in art 5(1)(a), but rather drastically reduced its scope of application.
Regarding jurisdiction for tort claims, art 5(3) was only slightly modified in the Regulation to include preventive actions by giving competence to the court where the harmful event ‘may occur’. In contrast, the CJEU ruling in Kalfelis (Case C-189/87 Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co and others  ECR 5565) was directly included in the wording of art 6(1), which stated that actions can be joined against several defendants domiciled in different Member States if ‘the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’.
c) Lis pendens and related actions
Finally, the issue of pendency and its evolution from the Convention to the Regulation illustrates the need for a minimum procedural harmonization. In the case of a lis pendens (→Lis alibi pendens) situation between two courts of EU Member States, the Convention and the Regulation prescribe that the court second seized has to stay its proceedings until the court first seized has ruled on its jurisdiction. If the court first seized considers itself competent, the second court has to decline jurisdiction. However, as this question was closely linked to judicial organization and domestic procedural law, there was no EU definition of how and when a court is seized. When the question was referred to the CJEU, it responded that this matter had to be determined by national laws (Case 129/83 Siegfried Zelger v Sebastiano Salinitri  ECR 2397). This result hindered the proper functioning of the lis pendens mechanism, because some courts considered themselves seized when a writ is presented to the court while others waited until the writ was served to the defendant. Hence, it was possible to use this timeframe to avoid the court chosen by the claimant, even when that court was factually first informed of the case. Eventually, art 30 Brussels I Regulation provides for an autonomous definition of when a court is deemed to be seized for the purpose of the lis pendens rule. This issue shows the practical difficulties that arise when harmonizing a single area of law between different States, as well as the need for coordinating national procedures. To this aim, several other regulations were adopted by the EU.
2. From one Convention to multiple regulations
Article 65 Treaty of Amsterdam gave competence to the EU to adopt all necessary measures in the field of judicial cooperation in civil matters with cross-border implications. In 1999, the Presidency Conclusions at the Tampere European Council manifested a political will to strengthen the area of freedom, security and justice, among others, by facilitating the free movement of judgments (Part VI of the Presidency Conclusions at the Tampere European Council of 15 and 16 October 1999).
Following this political mandate, several European regulations have been adopted in the field of procedural law. The Brussels Convention of 1968 was adapted into the Brussels I Regulation and the 1998 Brussels II Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters (Council Act of 28 May 1998 drawing up, on the basis of Article K.3 of the Treaty on European Union, the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters,  OJ C 221/1) was transformed into the Brussels II Regulation (Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses,  OJ L p. 225160/19). This Brussels II Regulation was quickly amended to include rights of access to children and became the →Brussels IIa Regulation (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, repealing Regulation (EC) No 1347/2000,  OJ L 338/1). These two instruments, Brussels I and Brussels IIa, together with the Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings,  OJ L 160/1), show the first regulatory approach of the EU towards cross-border litigation. They provide for rules on competence while facilitating cross-border enforcement through a simplified exequatur procedure. Nonetheless they remain classic cross-border litigation instruments, aimed at coordinating the jurisdictional systems of the EU Member States in specific areas. From the methodological perspective they still provide for safeguards at the national level. In particular, they still contain a public policy clause that can be used to deny recognition.
Since the Tampere Council, the exequatur procedure and the possibility of contesting and ultimately refusing enforcement of judgment in another Member State has been regarded as an obstacle to the desired free movement of judgments. After the millennium, it was a priority of European lawmaking to abolish these intermediary proceedings in specific sectors. Under the Brussels IIa Regulation, decisions on the right of access or rulings on the return of a child are no longer subject to an exequatur procedure, but rather direct enforcement operates on the basis of a certificate given by the court of origin. The same mechanism replacing exequatur in the state in which enforcement is sought by a certification in the state of origin was applied in subsequent regulations: the European Enforcement Order (Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims,  OJ L 143/15), the European Payment Order (Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure,  OJ L 399/1), the European Small Claims Procedure (Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure,  OJ L 199/1), the Recognition of Protective Measures Regulation (Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters,  OJ L 181/4), as well as the EAPO Regulation (Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters,  OJ L 189/59; → European Account Preservation Order Regulation). This second type of lawmaking approach attempts to concentrate all possible disputes in front of the court of origin with a procedural harmonization through the implementation of minimum standards. If applied by the court of origin, direct enforcement can be sought in all other Member States.
The last lawmaking approach to date intends to combine private international law and procedural law in the same instrument. In the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations,  OJ L 7/1), applicable law is regulated by the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations,  OJ L 331/19) and there is no exequatur procedure if the state of origin is bound by the protocol. In the opposing case (ie judgments from Denmark and the United Kingdom), judgments are still submitted to an exequatur procedure similar to Brussels I. The Succession Regulation (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,  OJ L 201/107; →Rome IV Regulation) also combines choice-of-law rules applicable to the succession with procedural rules, and notably includes a European certificate of succession as an evidentiary document clarifying certain facts (art 68). However, contrary to the Maintenance Regulation, the Succession Regulation strictly follows the Brussels I Regulation method of recognition and enforcement.
p. 226Finally, the European Service Regulation (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000,  OJ L 324/79) and the Evidence Regulation (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters,  OJ L 174/1) must be mentioned here as they formed part of this system, even though they do not regulate jurisdiction or cross-border enforcement. The Service Regulation is a mandatory instrument when serving legal documents in Europe (Case C-325/11 Krystyna Alder, Ewald Alder v Sabina Orłowska, Czesław Orłowski  OJ C 46/7) and as such constitutes an important procedural harmonization widely used in practice. Conversely, the Evidence Regulation offers merely optional ways to gather evidence in another Member State (Case C-332/11 ProRail NV v Xpedys NV, DB Schenker Rail Nederland NV, Nationale Maatschappij der Belgische Spoorwegen NV, FAG Kugelfischer GmbH  OJ C 114/11), but is nevertheless a significant step towards a more efficient cooperation between EU Member States’ courts.
This brief overview of the ‘Brussels I system’ demonstrates the impressive work of the EU in the field of procedural law, but also illustrates the underlying need for a strengthened procedural cooperation in order to facilitate the free movement of judgments. However, this cooperation has proven to be difficult in practice and faces some major challenges, largely because of the lack of direct communication between courts and the language barrier. The EU attempts to resolve these issues by implementing the Judicial Network and the European e-Justice portal, but with limited success, partially because of the lack of involvement of the Member States. The extensive use of standard forms and certificates in the various regulations, either as informative tools or as binding instruments, is also a welcome – although not entirely successful – attempt to overcome the language barrier.
In this system, the Brussels I Regulation represents a ‘backbone’ and a model for all subsequent legislation in Europe. Thus, it remains to examine what are the future prospects after the 2012 Recast.
IV. Prospect after the 2012 Brussels I Regulation (recast)
1. Simplifying cross-border enforcement
Before recasting the Brussels I Regulation, two extensive reports on its practical application were produced – a general one known as the Heidelberg Report by Burkhard Hess, Thomas Pfeiffer and Peter Schlosser (Burkhard Hess, Thomas Pfeiffer and Peter Schlosser, The Brussels I Regulation 44/2001 – Application and Enforcement in the EU (the ‘Heidelberg Report’; CH Beck 2008)), and a Report on Residual Jurisdiction by Arnaud Nuyts (Arnaud Nuyts and others, Study on Residual Jurisdiction – General Report (Brussels 2007)). They were followed by the Green Paper of the European Commission (Commission, ‘Green paper on the review of council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 21 April 2009’ COM(2009) 175 final) and another round of public consultation. The most important change put forward by the Commission was the complete abolition of exequatur, but this was met with criticism and the final Recast is less ambitious. Admittedly the exequatur procedure is formally abolished, in that civil judgments of EU Member States have to be directly enforced without any declaration of enforceability. The creditor has only to provide the enforcement authorities with a copy of the judgment and the certificate provided by the Regulation in Annex 1. This certificate must be notified to the defendant prior to the first enforcement measure (art 43(1)). This requirement deprives the creditor of the ‘surprise effect’ in the enforcement proceedings, and the defendant can contest the enforcement on the same grounds as he could contest the exequatur under the Brussels I Regulation and particularly by invoking →public policy. This mechanism creates a mélange between national →remedies against enforcement and grounds for refusal of recognition set up by the Regulation. Besides, national enforcement authorities currently are rarely confronted with foreign judgments, and it remains to be seen if they will be adequately equipped to enforce them, particularly if an adaptation of a foreign measure is necessary (art 54 Brussels I Regulation (recast)). Hence, it p. 227is uncertain whether enforcement will actually be faster under the Recast than it was under the Brussels I Regulation. This will depend on the efficiency and speediness of the notification by the enforcing authorities and whether courts suspend enforcement proceedings when the debtor applies for a refusal of enforcement (art 44).
2. Choice of court agreements and pendency
Choice of court agreements whereby parties designate the competent court were regulated under Brussels I (art 23), but were also subject to the normal lis pendens rule. This meant that if the court designated by the choice of court agreement was seized second, it still had to stay proceedings until the court first seized had declared that it lacked jurisdiction (Case C-116/02 Erich Gasser GmbH v MISAT Srl  ECR I-14693). This decision was widely criticized as weakening the functioning of choice of court agreements and encouraging delaying tactics. Hence, the Recast overruled it by giving priority to the designated court (art 31 Brussels I Regulation (recast)). This should be a clear improvement of the system towards efficiency and predictability.
3. Third states
The question of the relationship between the Convention and third-state defendants was widely discussed before the Recast of Brussels I. Under the Brussels I Regulation, and this is unchanged in the Recast: non-EU defendants are subject to all national exorbitant heads of jurisdiction and the subsequent judgments circulate in the whole EU territory. This unfairly prejudices foreign defendants, for example when art 14 French Civil Code is invoked. Moreover, the Owusu case (Case C-281/02 Andrew Owusu v NB Jackson, Trading as ‘Villa Holidays Bal-Inn Villas’ and Others  ECR I-1383) showed that third-state defendants could easily be affected by the functioning of the Brussels I Regulation. This led the Commission to propose including non-EU defendants in the Regulation by subjecting them to the special heads of jurisdiction of art 5. However, this proposal was met with scepticism and was abandoned by the European Parliament, which rightly decided that this issue could not be dealt with unilaterally by the EU, and preferred to remit the discussion back to The Hague for the negotiation of the Judgments Project. However, although there were no drastic changes towards third-state defendants, some improvements to the previous situation were adopted in the Recast. First (and most significantly), the territorial scope of jurisdiction over consumer and labour contracts was extended to cover third-state defendants. This means that European consumers can sue a non-EU professional at their domicile (art 18; →Domicile, habitual residence and establishment), and European employees can sue their foreign employer at the place where the employee habitually carries out his work (art 21(2)). Second, rules relating to pendency with third-state courts were created in art 33 Brussels I Regulation (recast). This provision allows a European court seized second to decline jurisdiction in favour of a third-state court first seized if the stay in proceedings is necessary for the proper administration of justice, and if the foreign judgment is likely to be recognized in the Member State. A similar rule applies in case of related actions (art 34). Third, the Brussels I Regulation (recast) extends the competence of the newly created European Patent Court. Accordingly, the court also has jurisdiction over third-state defendants in disputes relating to an infringement of a European patent. This competence not only covers damage sustained within the EU but also damage arising outside the EU (i) if property belonging to the defendant is located in any Member State which is party to the instrument establishing the European Patent Court, and (ii) if the dispute has a sufficient connection with any such Member State (art 71b(3)).
The final widely discussed and perhaps most controversial issue is the interaction between the Brussels I system and arbitration, which is the object of the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3). The main problem was highlighted by the West Tanker case (Case C-185/07 Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc  ECR I-663), where it was decided that the issue of validity and applicability of an arbitration clause fell under the Brussels I Regulation. The Court thus ruled that no anti-suit injunction (→Anti-suit injunctions) could be granted by the court at the seat p. 228of arbitration against a party who brought proceedings before another European court. This decision clearly weakened the proper functioning of arbitration clauses, and two solutions were proposed to remedy it. Following the Heidelberg Report, the Commission suggested including arbitration in the Regulation and giving priority to the court at the seat of arbitration to decide upon the validity of the agreement in a way comparable to choice of court agreements. However, this proposal was vigorously contested by arbitration practitioners, who opposed a regional regulation of arbitration and feared the free movement of judgments setting aside arbitration clauses. In their view, any European regulation on arbitration would ultimately reduce the attractiveness of Europe as an arbitration forum in favour of non-EU countries such as →Switzerland. This lobbyism led the European Parliament to propose entirely removing arbitration from the Brussels I Regulation, including regarding →provisional measures, which would have overruled the Van Uden case-law (Case C-391/95 Van Uden Maritime BV, Trading as Van Uden Africa Line v Kommanditgesellschaft in Firma Deco-Line and Another  ECR I-7091). This amendment was again criticized and eventually the status quo prevailed. In the Brussels I Regulation (recast), arbitration is excluded in the same way as in the Brussels I Regulation, with the addition of art 73(2), according to which the Regulation shall not affect the New York Convention. Additional guidelines are also given in Recital (12), but this provision is not binding and still leaves many open issues regarding the coordination of arbitration and European procedural law, issues which will have to be decided by the CJEU.
5. Final assessment
Having seen the main issues raised by the 2012 Recast, its impact on the Brussels I system as a whole remains to be evaluated. Indeed, the Brussels I Regulation shaped the entire system of procedural law in Europe, and it is legitimate to ask what direction this system will take after the Recast. Although the Brussels I Regulation (recast) fell short of the Commission’s proposal, it still formally abolishes exequatur proceedings and it is clear that the other regulations will continue down this path. Exequatur proceedings will be progressively removed from the European framework of recognition and enforcement of judgments, and replaced by the implementation of minimal procedural standards in the Member State of origin. This will also lead the EU to increasingly control enforcement proceedings in the Member States, so as to prevent them from unduly impeding the free movement of judgments.
Finally, the limited progress of the Brussels I Regulation (recast) may be an indication that European procedural law not only needs deepening but also consolidation. At the moment, the regulatory activity of the EU is only sectoral, whereas a more global approach is required for the creation of a comprehensive and coherent framework. However, this can only be achieved with a deeper understanding of the national procedural frameworks and specificities in order to be able to create genuine European equivalents.
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