Judicial Cooperation in Judicial Cooperation in civil matterscivil matters

Jurisdiction of courtsJurisdiction of courts

Brussels I RegulationBrussels I Regulation

The „new Lugano agreement“The „new Lugano agreement“

Late in 2007, a Convention was signed on Late in 2007, a Convention was signed on jurisdiction and the recognition and jurisdiction and the recognition and enforcement of judgments, with the enforcement of judgments, with the objective of achieving the same level of objective of achieving the same level of circulation of judgments between the EU circulation of judgments between the EU Member States and Switzerland, Norway Member States and Switzerland, Norway and Iceland. On entering into force, it will and Iceland. On entering into force, it will replace the Lugano Convention of 1988 on replace the Lugano Convention of 1988 on jurisdiction and enforcement of judgments jurisdiction and enforcement of judgments in civil and commercial matters. Other Non-in civil and commercial matters. Other Non-EU Member Countries can accede to the EU Member Countries can accede to the new Convention under certain conditions. new Convention under certain conditions.

The importance of international The importance of international jurisdictionjurisdiction

Different attitudes of Europe and USA.Different attitudes of Europe and USA. USA (non – continental law) – „fairness“, USA (non – continental law) – „fairness“,

„reasonableness“, „forum non conveniens“.„reasonableness“, „forum non conveniens“. Basic source – US Constitution – Due Basic source – US Constitution – Due

Process Clause.Process Clause. European – formal rules.European – formal rules. Hague convention (worldwide) – not Hague convention (worldwide) – not

successful.successful. Yahoo! caseYahoo! case

Brussels I RegulationBrussels I Regulation

Council Regulation n.44/2001 of 22 Council Regulation n.44/2001 of 22 December 2000December 2000

Substitutes the Brussels I Convention Substitutes the Brussels I Convention (some changes have been accepted)(some changes have been accepted)

Deals with jurisdiction of courts and Deals with jurisdiction of courts and the recognition and enforcement of the recognition and enforcement of judgments in civil and commercial judgments in civil and commercial matters.matters.

Brussels I Regulation – The Brussels I Regulation – The Denmark situation Denmark situation

In 1997 when creating the Amsterdam In 1997 when creating the Amsterdam Treaty the member states agreed upon The Treaty the member states agreed upon The Protocol on the position of Denmark Protocol on the position of Denmark – – Denmark is not cooperating within this field.Denmark is not cooperating within this field.

However in 2005-mutual negotiations led to However in 2005-mutual negotiations led to coclusions of an international agreement coclusions of an international agreement between the European Community and the between the European Community and the Kingdom of Denmark on jurisdiction and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments recognition and enforcement of judgments in civil and commercial matters (OJ in civil and commercial matters (OJ 16/11/2005 L299 p. 62) 16/11/2005 L299 p. 62)

The Brusssels I RegulationThe Brusssels I RegulationThe Denmark situationThe Denmark situation

Upon this agreement the provisions Upon this agreement the provisions of the Brussels I regulation shall of the Brussels I regulation shall apply to the relations between the apply to the relations between the Community and the Denmark (with Community and the Denmark (with the exception given in the the exception given in the agreement).agreement).

Entered into force – 1.7.2007.Entered into force – 1.7.2007.

The Brussels I Regulation The Brussels I Regulation General CharacteristicsGeneral Characteristics

76 articles, divided into eight chapters:76 articles, divided into eight chapters:I – Scope of applicationI – Scope of applicationII – JurisdictionII – JurisdictionIII – Recognition and enforcementIII – Recognition and enforcementIV – Authentic instruments and court IV – Authentic instruments and court

settlementssettlementsV – General ProvisionsV – General ProvisionsVI – Transitional ProvisionsVI – Transitional ProvisionsVII – Relations with other instrumentsVII – Relations with other instrumentsVIII- Final Provisions VIII- Final Provisions

The Brussels I RegulationThe Brussels I RegulationScope of applicationScope of application

Material scope of application – article 1 of Material scope of application – article 1 of the Regulation – civil and commercial the Regulation – civil and commercial mattersmatters

Territorial scope of application – Domicile Territorial scope of application – Domicile of the defendant in a Member state (all of the defendant in a Member state (all without Denmark)without Denmark)

Temporal scope of application – Temporal scope of application – proceedings after 1 March 2002proceedings after 1 March 2002

International element (extensive International element (extensive interpretation- Owusu case – ECJ Case C interpretation- Owusu case – ECJ Case C 281/02 of 1 March 2005) 281/02 of 1 March 2005)

The Brussels I RegulationThe Brussels I RegulationThe material scope of applicationThe material scope of application

Article 1 of the Regulation : civil and Article 1 of the Regulation : civil and commercial matterscommercial matters, , whatever the whatever the nature of the court or tribunal.nature of the court or tribunal.

Matters of private law? – Case Matters of private law? – Case Volker Volker Sonntag v. A. WaidmanSonntag v. A. Waidman ECJ Case – C- ECJ Case – C- 172/91 of 21 April 1993172/91 of 21 April 1993

Negative – exemptions in art. 1 para Negative – exemptions in art. 1 para 22

The Brussels I RegulationThe Brussels I RegulationJurisdictionJurisdiction

Tells us the member state whose Tells us the member state whose courts have jurisdiction in the case.courts have jurisdiction in the case.

Has to be distinguished from internal Has to be distinguished from internal jurisdiction – relations between courts jurisdiction – relations between courts of one member stateof one member state – regulated by – regulated by national law.national law.

e.g. – the regulation -----e.g. – the regulation ----->> Czech courts Czech courts Which Czech court? -------Which Czech court? ------->> Czech civil Czech civil

procedure code procedure code

The Brussels I RegulationThe Brussels I RegulationJurisdiction - systemJurisdiction - system

Exlusive jurisdictionArt. 22

Juridiction agreementArt.23

Jurisdiction in matters:Insurence, consumercontracts, individual

contracts of employmentArt. 8-21

Special JurisdictionArt. 5-7 – alternative

to the general provision

General provision (Basic rule of the jurisdiction

Art. 2

The Brussels I RegulationThe Brussels I RegulationJurisdiction – Basic ruleJurisdiction – Basic rule

The Basic rule of the jurisdiction – The Basic rule of the jurisdiction – art. 2 of the Regulation:art. 2 of the Regulation:

„„Subject to this Regulation, persons Subject to this Regulation, persons domiciled in a Member state shall, domiciled in a Member state shall, whatever their nationality,be sued in whatever their nationality,be sued in that Member state“.that Member state“.

Actor sequitur forum rei (The claimant Actor sequitur forum rei (The claimant follows the defendant)follows the defendant)..

The Brussels I RegulationThe Brussels I RegulationSpecial jurisdictionSpecial jurisdiction

Articles 5-7 – alternative jurisdiction Articles 5-7 – alternative jurisdiction to the jurisdiction based upon the to the jurisdiction based upon the general (basic) rule in article 2.general (basic) rule in article 2.

Brings the possibility to „opt out“ the Brings the possibility to „opt out“ the most suitable courts – the possibility most suitable courts – the possibility to „keep“ the proceedings in „my“ to „keep“ the proceedings in „my“ state.state.

The Brussels I RegulationThe Brussels I RegulationSpecial JurisdictionSpecial Jurisdiction

Article 5 – Article 5 – a)a) Place of performancePlace of performanceb)b) Maintenance claimsMaintenance claimsc)c) TortTortd)d) Civil claims for damages or restitution based Civil claims for damages or restitution based

upon act giving rise to criminal proceedingsupon act giving rise to criminal proceedingse)e) Disputes arising out of the operation of a Disputes arising out of the operation of a

branch, agency or other establishment branch, agency or other establishment f)f) Trust operationsTrust operationsg)g) Payment of remuneration claimed in respect Payment of remuneration claimed in respect

of the salvage of a cargo or freight.of the salvage of a cargo or freight.

The Brussels I RegulationThe Brussels I RegulationSpecial JurisdictionSpecial Jurisdiction

Article 5 para 1 – Place of performanceArticle 5 para 1 – Place of performanceThe person domiciled in one Member state, may be sued in another The person domiciled in one Member state, may be sued in another

member state:member state:In matters relating to a contract – in the courts for the place of In matters relating to a contract – in the courts for the place of

performance of the obligation in question. Place of performance – performance of the obligation in question. Place of performance – interpreted directly in the Regulation.interpreted directly in the Regulation.

Judgment of the Court (Fourth Chamber) of 3 May 2007. Judgment of the Court (Fourth Chamber) of 3 May 2007. Color Drack GmbH v Lexx International Vertriebs GmbH.Color Drack GmbH v Lexx International Vertriebs GmbH.The first indent of Article 5(1)(b) of Council Regulation (EC) No The first indent of Article 5(1)(b) of Council Regulation (EC) No

44/2001 of 22 December 2000 on jurisdiction and the 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and recognition and enforcement of judgments in civil and commercial matters must be interpreted as applying where commercial matters must be interpreted as applying where there are several places of delivery within a single Member there are several places of delivery within a single Member State. In such a case, the court having jurisdiction to hear State. In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be that for the principal place of delivery, which must be determined on the basis of economic criteria. In the determined on the basis of economic criteria. In the absence of determining factors for establishing the principal absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of its choice. court for the place of delivery of its choice.

The Brussels I RegulationThe Brussels I RegulationSpecial jurisdictionSpecial jurisdiction

Art. 5 para 2 – maintenance claimsArt. 5 para 2 – maintenance claims

,,,,, the courts for the place, where the ,,,,, the courts for the place, where the maintenance creditor is domiciled or maintenance creditor is domiciled or habitually resident,,,,,,,habitually resident,,,,,,,

Example: ECJ Case C- 433/01 of 15 Example: ECJ Case C- 433/01 of 15 JanuaryJanuary

Freistaat Bayern v Jan Blijdenstein. Freistaat Bayern v Jan Blijdenstein.

The Brussels I RegulationThe Brussels I RegulationSpecial jurisdictionSpecial jurisdiction

Art. 5 para 3 – tort Art. 5 para 3 – tort

……………….in matters relating to tort, delict .in matters relating to tort, delict or quasi delict, in the courts where or quasi delict, in the courts where the harmful event occured or may the harmful event occured or may occur……occur……

Difficult interpretation of the notion Difficult interpretation of the notion „harmful event“:„harmful event“:

Decision Mines de Potasses d´Alsace –Decision Mines de Potasses d´Alsace –ECJ Case 21/76 of 30 November 1976ECJ Case 21/76 of 30 November 1976

The Brussels I RegulationThe Brussels I RegulationSpecial JurisdictionSpecial Jurisdiction

Harmful event – other decisionsHarmful event – other decisions Kronhofer – ECJ Case 168/2002 Kronhofer – ECJ Case 168/2002 Shevil case –ECJ Case 68/93Shevil case –ECJ Case 68/93

Brussels I RegulationBrussels I RegulationSpecial JurisdictionSpecial Jurisdiction

Art 6 – pending casesArt 6 – pending casesa)a) More defendants – in the place, More defendants – in the place,

where any of them is domiciled,where any of them is domiciled,b)b) Third party – action on waranty or Third party – action on waranty or

guaranteeguaranteec)c) CountCounter er - claim actions- claim actionsd)d) Matters relating to a contract – may Matters relating to a contract – may

be combined with action in matters be combined with action in matters relating to rights in rem against the relating to rights in rem against the same defendantsame defendant

Brussels I RegulationBrussels I RegulationExclusive JurisdictionExclusive Jurisdiction

Art. 22 sets down rules for jurisdiction Art. 22 sets down rules for jurisdiction regardless the domicile of the regardless the domicile of the defendant:defendant:

E.g. In proceedings which have as their E.g. In proceedings which have as their object rights in rem in immovable object rights in rem in immovable property –the courts of member state property –the courts of member state where immovable property is situated,where immovable property is situated,

In proceedings which have as their In proceedings which have as their object validity of entries in public object validity of entries in public register, the courts of the member register, the courts of the member state, in which register is kept.state, in which register is kept.

The Brussels I Regulation The Brussels I Regulation Prorogation of jurisdictionProrogation of jurisdiction

Art.23 Art.23

Is Is (in the general principle) (in the general principle) not allowed in:not allowed in:

Insurance contracts, consumers contracts, Insurance contracts, consumers contracts, individual contracts of employment.individual contracts of employment.

The Brussels I RegulationThe Brussels I RegulationJurisdiction by appearanceJurisdiction by appearance

Even if the jurisdiction rules in this Even if the jurisdiction rules in this regulation establish jurisdiction of regulation establish jurisdiction of different courts – courts of another different courts – courts of another member state shall have jurisdiction member state shall have jurisdiction if the defendant „enters an if the defendant „enters an appearance“. appearance“.

Does not apply:Does not apply:a)a) In cases of exIn cases of excclusive jurisdiction,lusive jurisdiction,b)b) If the defendant appears only to If the defendant appears only to

contest the jurisdiction.contest the jurisdiction.