jurisdiction , recognition and enforcement of judgments under ec law
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Prof Dr Thomas Rauscher. Brussels I-Regulation and Enforcement Order-Regulation. Jurisdiction , Recognition and Enforcement of Judgments under EC Law. TR 2007. EU- materials ECJ- decisions Text and collected materials EC-reg about civil procedural law - Brussels I-reg - PowerPoint PPT PresentationTRANSCRIPT
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
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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
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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
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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
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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)
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Provisional & protective measures (Art Provisional & protective measures (Art 31)31)
Provisional Provisional measuresmeasuresdefineddefined
JurisdictionJurisdiction Art 31Art 31
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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
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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?
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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
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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
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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
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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
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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