Brussels Regime

States applying Brussels regime instruments

  Brussels regulation, EU-Denmark agreement, Lugano convention

  EU-Denmark agreement, Lugano convention

  Lugano convention

European Union regulation:
Regulation (EC) No 44/2001
Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
Made by	Council
Made under	Article 61(c) and Article 67(1) TEC
Journal reference	L012, 16 January 2001, pp. 1-23
History
Made	22 December 2000
Came into force	1 March 2002
Preparative texts
Other legislation
Status: Current legislation

European Union regulation:
Regulation (EU) No 1215/2012
Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)
Made by	European Parliament and Council
Made under	Article 67(4) and points (a), (c) and (e) of Article 81(2) TFEU
Journal reference	L351, 20 December 2012, pp. 1-32
History
Made	12 December 2012
Came into force	1 January 2013
Implementation date	10 January 2015
Preparative texts
Other legislation
Replaces	Regulation (EC) No 44/2001
Status: Pending legislation

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 (EU) and the European Free Trade Association (EFTA). It has detailed rules assigning jurisdiction for the dispute to be heard and governs the recognition and enforcement of foreign judgements.

Background

Recognition and enforcement of judgements in civil and commercial cases was originally accomplished within the European Communities with an international convention: the 1968 Brussels convention. The Brussels I regulation is largely based on that convention, which after introduction of the regulation has only limited validity. For similar relations with Norway, Iceland and Switzerland, the Lugano convention is applied. The recognition system is termed the "Brussels regime".

The regulation aims at jurisdiction, i.e., determining which court or courts will have the ability to take the case. That does not mean that the applicable law will be the law of the court. It is possible and frequent to have a national court applying foreign law. In general, it is the domicile of the defendant that determines which of the courts have jurisdiction in a given case. The Brussels I Regulation is applicable where the defendant is domiciled in a member state of the European Union.

Instruments

The 2001 Brussels I Regulation is the primary piece of legislation in the Brussels framework. It substantially replaced the 1968 Brussels Convention, and applies to all EU member states excluding Denmark. It came into effect on 1 March 2002.

In 2005 Denmark signed an agreement with the European Community to apply the provisions of the 2001 Regulation between the EU and Denmark. Denmark has a full opt-out from the Area of freedom, security and justice, but may opt-in by concluding international agreements with the EU. The 2005 agreement applies a modified form of the 2001 Regulation between Denmark and the rest of the EU. It also provides a procedure by which amendments to the regulation are to be implemented by Denmark. It applies to 2001 regulation to Denmark and other EU members form 1 July 2007.

In 2007 the European Community signed an treaty with Iceland, Finland, Norway and Denmark—the new Lugano Convention—which replaced the 1988 convention signed in the same place. It is also substantially the same as the 2001 regulation: the main difference being that the word "Regulation" being replaced with the word "Convention" throughout the text. The convention applies when non-EU countries are involved. The convention entered into force in 2010 and is the successor of a similar 1988 convention between the member states of the then European Community and the member states of the then six members of the European Free Trade Association (EFTA) except Liechtenstein. The treaty is open for accession by EU member states on behalf of territories outside the EU as well as other EFTA states. Other states may join subject to approval of the present parties to the treaty. No accessions have take place so far.

The 1968 Brussels Convention is the original source for the legislation. Although it is still in force between the 15 making up the European Union before entry into force of the Brussels I Regulation, that regulation takes precedence and the convention is only relevant in its relationship between EU countries and certain territories of EU member states to which the convention applies but which are outside the European Union: these being Aruba, the French overseas territories and Mayotte. In it intended that the Brussels Convention will be replaced by the new Lugano Convention, the latter being open to ratification by EU member states acting on behalf of non-European territories which belong to that member state.

In 2012 the EU institutions adopted a recast Brussels I Regulation which will replace the 2001 regulation in 2015. The main change is that while the 2001 regulation applies only to individuals resident in the European Union, the recast regulation will harmonise the rules under which individuals resident outside the EU may be sued in the courts of EU member states. In December 2012 Denmark notified the Commission of its decision to implement the contents of 2012 regulation.

All four legal instruments are broadly similar in content and application, with differences in their territory of application. They establish a general rule that individuals are to be sued in their state of domicile and then proceed to provide a list of exceptions. The instruments further provide for the recognition of judgements made in other countries.

Scope and content

The Brussels Regime covers legal disputes of a civil or commercial nature. In 1978, the convention was amended to include the sentence: "It shall not extend, in particular, to revenue, customs or administrative matters." The 2012 Regulation further specifies that the regulation shall not extend to "the liability of the State for acts and omissions in the exercise of State authority (acta pure imperii)." There are some exceptions limiting the scope of this. Where the principal matter of a dispute is one of family law, bankruptcy or insolvency, social security, or relates to arbitration, the case is not subject to the rules.

The regime prescribes that, subject to specific rules set out in the various instruments, a person (legal or natural) may only be sued in the member state in which he or she has its habitual residence or domicile. This is determined by the law of the court hearing the case, so that a person can be domiciled in more than one state simultaneously. However, "domicile" does not have the same meaning as that given to it by common law.

Originally the regime only applied to individuals domiciled in the European Economic Area (EEA) or Switzerland. However, the 2012 Regulation also sets out rules applicable to suing individuals domiciled elsewhere. Until that regulation takes effect, if a defendant is domiciled outside the EEA, 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 assets.

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 does not require non-EU states to refer questions of interpretation to the ECJ, but has a protocol regarding "uniform interpretation" of the convention, requiring courts "pay due account to the principles laid down by any relevant decision" and allowing for the exchange of relevant judgements. Nevertheless, various divergences have arisen between member states in the interpretation of the Lugano convention.

The Brussels Regime generally allows jurisdiction clauses in contracts, which preserves the right of parties to reach agreement at the time of contracting as to which court should govern any dispute. After the 2012 regulation enters into force, such a decision should in principle be respected, even if a court outside the Brussels Regime states is selected and is already in compliance with the 2005 Hague Choice of Court convention (which has not entered into force).

The Regime applies only in the courts where the Lugano convention is applicable, 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.^{[citation needed]}

See also

• Spider in the web doctrine
• Cross-border injunction
• Enforcement of European patents
• Private international law
• Jurisdiction
• Inter-American convention on extraterritorial validity of foreign judgments and arbitral awards
• Implementation in UK law
  • Civil Jurisdiction and Judgments Act 1982
  • Civil Jurisdiction and Judgments Act 1991
• Rome Convention the choice of law to be made in contract disputes
• Rome II Regulation the choice of law to be made in tort and delict disputes

External links

Instruments

• Regulation (EU) 1215/2012 and Regulation (EC) 44/2001
• 2005 EU-Denmark agreement
• 1968 Brussels convention (parties)
• 1988 Lugano Convention (parties)
• 2007 Lugano convention (parties)

Case law

• case law reports on the Lugano conventions
• case-law relating to the Brussels and Lugano Conventions
• Landmark cases
  • Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others Case 189/87
  • Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG Case C-4/03
  • Roche Nederland BV and Others v Frederick Primus and Milton Goldenberg Case C-539/03