NATIONAL JUDGES AND COMMUNITISATION OF INTERNATIONAL PRIVATE LAW: GUIDELINES FROM JUDGMENTS OF THE E.C.J.
1. The Regulatory Framework
The legal framework concerning judicial co-operation in civil matters is set out in Articles 61, 65, 67, and 68 of the EC Treaty. Thus, Article 61 enables the Council to take measures aimed at progressively ensuring an area of freedom, security and justice, while Article 65 clarifies how such measures, having cross-border implications, are to ensure the proper functioning of the internal market. Such a general formulation allows the Council to use any binding or non-binding, typical or atypical tool, providing a wide range of possibilities in order to opt for the most suitable means by which to pursue the final objective.
In its consideration of cross-border implications,1 the Article refers to the need for a connecting element with another Member State or third-party State. So far as the proper functioning of the internal market is concerned, that requirement makes clear that a measure should only be adopted if it is related to the internal market (including both where there is an economic purpose and where a social consideration is concerned), and that the reasons behind the measure should be explained.
According to Article 65, the measures shall, inter alia, include:
improving and simplifying the system for cross-border service of judicial and extra-judicial documents, co-operation in the taking of evidence, and the recognition and enforcement of decisions in civil and commercial matters, including decisions in extra-judicial cases;
promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and jurisdiction;
removing obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
The Treaty of Lisbon (signed on 13 December 2007 but not yet in force ), which amends the Treaty on European Union and the Treaty establishing the European Community, proceeds in this way, in particular stressing, in a new Article 61, the principle of access to justice, through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
The scope for Community action in the new Article 65 is also extended. Thus, the European Parliament and the Council, acting in accordance with the normal legislative procedure, are empowered to adopt measures aimed at ensuring the approximation of the laws and regulations of the Member States (including measures aimed at ensuring judicial co-operation in civil matters) and, specifically (as provided for by the version of Article 65 yet to come into force), the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction, including measures to ensure effective access to justice.
In parallel with the improvement in the access to justice, the Community action additionally supports the development of alternative methods of dispute settlement. Furthermore, and by no means least, there is support for the training of the judiciary and judicial staff as a pillar for the proper functioning of the system of justice.
2. “Communitisation” in the Treaty of Amsterdam
The Treaty of Amsterdam (signed on 2 October 1997 and in force since 1 May 1999)2, established a new approach. While it did not alter the “three-pillar” structure, it modified the distribution of the various matters within that structure, and, in particular, moved judicial co-operation in civil matters from the third pillar to the first. This resulted in the so-called “Communitisation” of judicial co-operation in civil matters; i.e. the applicability of issuing secondary or basic derivative Laws within the framework of Community Law as laid down in Article 249 of the EC Treaty.
As has already been mentioned, the Community legal order does not place constraints on the measures to be adopted, thereby leaving freedom of choice to the Council. This practice has, so far, been characterised by a preference for unification – by using Regulations – rather than the achievement of harmonisation – through the use of Directives.
So far as Regulations are concerned, the following are already in force:
No.1346/2000, of 29 May 2000, on insolvency proceedings;
No.1348/2000, of 29 May 2000, on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters;
No.1206/2001, of 28 May 2001, on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters;
No.44/2001, of 22 December 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”);
No.2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation No.1347/2000 (“Brussels II” bis); and
No.805/2004 of the European Parliament and of the Council, of 21 April 2004, creating a European Enforcement Order for uncontested claims.
In addition, the following constitute Regulations which are not yet in force:
No.1896/2006, of 12 December 2006, creating a European order for payment procedure (applies from 12 December 2008);
No.864/2007, of 11 July 2007, on the law applicable to non-contractual obligations (“Rome II”) (applies from 11 January 2009);
No.861/2007, of 11 July 2007, establishing a European small claims procedure (applies from 1 January 2009);
No1393/2007, of 13 November 2007, on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters (service of documents), and repealing Council Regulation No.1348/2000 (applies from 13 November 2008); and
No.593/2008, of 17 June 2008, on the law applicable to contractual obligations (“Rome I”) (applies from 17 December 2009).
Given this framework, it can be seen that the field, once settled through the international private law of each Member State together with international conventions, is now mostly settled directly by Community Law.
Community Regulations have general application, are binding in their entirety and are “directly applicable” in all Member States, meaning that no implementation rule is required on the part of Member States.3 In addition, Member States must not pass any legal acts that could undermine the direct applicability of Regulations.4 In consequence, Regulations ensure homogeneous regulation in almost the entirety of Member States,5 both in the issuing and the implementation phases, particularly considering any modifications that might be necessary in the future.
The trend is thus progressively to create a European judicial area, which will enhance the notion of a single territory. This explains the decrease in the use of inter-governmental methods, and the weakening of the principles of State sovereignty and territorial jurisdiction.
Regulations are regarded as the truly adequate tools in accordance with the principles of subsidiarity and proportionality set out in Article 5 of the EC Treaty and recalled in the Preamble statements to the Regulations pertaining to judicial co-operation in civil matters. Those principles provide that “the Community shall take action […] only if and in so far as the objectives of the proposed action” can be better achieved by the Community itself and “shall not go beyond what is necessary to achieve” such objectives.
A relevant example can be seen with regard to Regulation No.44/2001 (Brussels I), which states, inter alia, that abiding by jurisdictional rules implies the automatic recognition of the decisions made. This reverses the effect of the previous mechanism,6 according to which abiding by jurisdictional rules was a fundamental element for the recognition of judgements.
In spite of such advantages, some7 have highlighted the risks related to the automatic recognition, with special reference made to the shopping forum, and suggested, as adequate remedy, the homogeneous adoption of rules concerning the conflict of laws.
3. The Jurisdiction of the Court of Justice
The progressive development of a European judicial area raises delicate problems in finding the right balance between opposing interests: on the one hand, the need for co-ordination, and, on the other, respect for the various legal systems of the Member States.8 In order to achieve such a balance, Article 68 of the EC Treaty provides that the Court of Justice is to give judgment on preliminary rulings concerning both the interpretation of Chapter IV and the interpretation and validity of Community acts adopted for judicial co-operation in civil matters9.
Whilst the rule is reminiscent of Article 234 of the EC Treaty, it also introduces significant differences when compared to the general model. In particular, it only makes reference to courts of last resort, and there is no express provision for compulsory referral, without prejudice to the requirement for a preliminary ruling by the Court, in order to enable a court or tribunal in any Member State to give judgement. While the issue of compulsory referral can be easily solved by means of interpretation,10 the same does not apply to the exclusive mention of courts of last resort; i.e. courts whose judgements are not subject to appeal.
This solution, originally adopted in order to prevent proceedings from slowing down, appears excessive when compared to its purpose, with a consequent detriment for the integrity and coherence of the Community legal order. In this context, it is notable that the rule introduces particularly restrictive conditions, and may, consequently, from this perspective, be considered a retrospective step.
For example, the Protocol of 3 June 1971, on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, enabled Member States to designate further national courts to whom references on preliminary ruling could be submitted.
The above-mentioned limitations to matters in which the Court has jurisdiction seem to be fundamental, and have been strongly criticised, since such matters have always been recognised as traditionally belonging within the field of State sovereignty.
The exclusion from the application of the rule of national courts which are not of last resort creates problems not only in ensuring the primacy of Community Law, but also – and particularly – in providing national judges with adequate means in the event that Community acts might not be valid.
So far as the issue of void Community acts is concerned, the Court has established that Community acts are not amenable to judicial review by national judges, with consequent infringement of the rights of the defence.11
These remarks show12 that the introduction of the jurisdiction in interpretation through Article 68(3) EC Treaty – stating that Member States, the Council, and the Commission may request the Court to give a ruling on an interpretation question in the field of judicial co-operation in civil matters – may be regarded as “compensation” for the harsh rules established under Article 68(1). However, the Treaty of Lisbon, signed on 13 December 2007, provides for the repeal of Article 68 as currently in force. Consequently, if and when the Treaty enters into force,13 it will allow for the use of the general model for preliminary rulings laid down in Article 234.14
In this context, it is also worth mentioning the new “urgent preliminary ruling”, in the areas of freedom, security and justice, provided for in Article 104-ter of the Rules of Procedure of the Court, applicable from 1 March 2008. The legal requirements for triggering the procedure are to be found (i) in the matter itself – it must be something related to the area of freedom, security and justice,15 and (ii) in the need for the existence of concrete grounds of urgency. As a rule, such grounds of urgency will be stressed by the national court in the application. However, in exceptional cases, the President of the Court may order the case to be dealt with by way of the urgent procedure.
As for the innovative characteristics of the procedure, aimed at ensuring speedy disposals, the specialisation of judges through a Chamber (made up of three or five judges) created ad hoc must be particularly borne in mind. Such a Chamber will have cognizance both in relation to the admissibility of the procedure and the disposal of the case.
Further amendments concern the written part of the procedure. First, only specific parties may provide written observations: namely, the parties to the main action, the Member State to which the court which referred the case belongs, the Commission, and, if the validity of any act adopted by the Council and the Parliament is in issue, the Council and the Parliament themselves. Any such observations are to be presented within a short time period, and must be in the language of the case. Furthermore, the Court may identify the issues of law, and may establish a maximum length for the observations. Indeed, the Court may even decide to omit the written part of the procedure, albeit only in exceptional cases (of so-called “extreme urgency”).16
The ECJ has recently given final judgment in the first case disposed of through this procedure.17 The disposal of that case actually demonstrated a significant decrease in the time for the proceedings, with the final judgment being given only two months after the commencement of the case, compared to an average time of about 18 months for normal procedures on a preliminary ruling.
The concept of “civil and commercial matters” is fundamental, as Community regulations concerning judicial co-operation in civil matters make reference to it in order to identify their areas of application. Identification of the concept is also necessary due to the fact that there is no definition in Community Law and no recourse is provided for by national laws.
Indeed, the interpretation problem is even more complex, because in Common Law countries no “triple structure” is provided for civil, administrative, and criminal law. Consequently, the concept of civil law is only obtained by not being identified as criminal law.
However, the gap may be filled by making reference to the principles concerning the same concept as set out by the Court of Justice in the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. In this context, the Court has introduced the general principle that the concept of “civil and commercial matters” must be considered as independent, and does not arise from the national laws of any Member State. Consequently, if the interpretation of the concept is to be approached in this way, the criteria to be considered are, “first, the purpose of applying the provisions” of Community acts, and, “secondly, the general principles which stem from the corpus of the national legal systems”.18
On the basis of this principle, the Court has excluded the possibility that an issue between a Public Authority and a person governed by private law could pertain to civil and commercial matters, if the Public Authority “acts in the exercise of its powers”. This requires a case-by-case analysis of both the legal relationships between the parties and the subject-matter of the issue.
According to the Court’s Judgment of 15 February 2007 in case C-292/2005, Eirini Lechouritou, European private international law does not apply to a legal action brought by natural persons in a Member State against another Member State for compensation in respect of the loss or damage suffered by the successors of the victims of acts perpetrated by armed forces in the course of warfare in the territory of the first State.19
As far as the applicable scope of Regulation No. 2201/2003 is concerned, the Court has held that the concept of “civil matters” must be intended as autonomous, by taking into account the purpose of the Regulation and the general principles based on the national laws of the Member States.
Applying this concept to a case, in order to achieve the principle of equal treatment for all children involved in such cases (one of the main purposes provided for in this Regulation), the concept “civil matters” is to be interpreted so as to include those measures that in national legal systems fall within public law.20
Regulation No.44/2001 (Brussels I) marks the limits of the concept of civil and commercial matters, by excluding status and capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and successions, bankruptcy and analogous proceedings, social security and arbitration.
However, no similar exclusion is provided for in either Council Regulation No.1348/2000 of 29 May 2000 on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters, or in Council Regulation No.1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters. The reason for this depends on specific matter settled from Brussels I. 21
1. Regulation (EC) No. 44/2001
1.1. Preliminary remarks
Amongst all of the Regulations on judicial co-operation in civil matters, an especially prominent position belongs to Regulation No.44/2001, which, replacing the Brussels Convention of 27 September 1968, lays down a set of rules of private international law concerning jurisdiction, recognition and enforcement of judgments in civil and commercial matters. Most of the rules enshrined by the 2001 Regulation merely reproduce the rules which were already in force in accordance with the repealed Brussels Convention. Thus, the case law developed by the Court of Justice of the European Communities,22 as well as by the national judiciary on the Brussels Convention, has still to be taken into consideration.
Having regard to the continuity between the two legislative measures, and considering that the Court of Justice of the European Communities has delivered a “wealth of case law over the last 30 years”,23 Regulation No.44/2001 is to be seen as the cornerstone of the judicial co-operation in civil matters, which supplies useful tools in order to interpret all other European legislation regarding private international law.24
The Regulation covers civil and commercial matters and, according to the second sentence of its Article 1, does not extend to revenue, customs or administrative matters. This specification was already added to the Brussels Convention by Article 3 of the 1978 Accession Convention,25 “for the benefit of common-law jurist”26 who does not recognise the concept of civil and commercial matters.
Notwithstanding the broad significance of its title, covering civil and commercial matters,27 Regulation No.44/2001 – as already pointed out – does not apply to: (i) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; (ii) bankruptcy; (iii) social security; or (iv) arbitration.
With the exceptions of Article 22 (which is of universal application) and Article 23 (having application whether one or more parties are domiciled in a Member State), Regulation ) No.44/2001 only applies to defendants domiciled in a Member State. Otherwise, the jurisdiction of the courts in each country is to be determined by that country’s own law.
1.2. Exclusive Jurisdiction
When an international claim is to be determined, each court of the Member State must check whether it has jurisdiction, beginning with an examination of whether there is a reason for exclusive jurisdiction according to Article 22.
Exclusive jurisdiction applies regardless of domicile. This kind of jurisdiction is aimed at ensuring the courts best placed to rule. Those courts are:
- the court for the place where an immovable property is situated, if the cause of action concerns rights in rem or long term tenancies;
- the court for the place where a legal person is seated, if the dispute concerns the validity of the constitution, the nullity or the dissolution of that person;
- in proceedings concerned with the validity of entries in public registers or the registration or validity of patents, the courts in the Member State of registration, irrespective of whether the issue is raised by way of an action or a plea in objection;28
- in proceedings concerning the enforcement of judgments, the courts of the Member State in which the judgment has been, or is to be, enforced.
Parties are not permitted to depart from exclusive jurisdiction. Thus, if Article 22 attributes jurisdiction to the court in which the party has sued, it must rule. Alternatively, if there are courts (other than that before which the proceedings are pending) which have exclusive jurisdiction, the court seised of the matter must, of its own motion, decline jurisdiction in favour of those courts.29
Infringement of the rules on exclusive jurisdiction, having regard to Article 35(1), constitutes reason for the courts of other Member States not to recognize the judgment delivered.
1.3. Prorogation of Jurisdiction
Where there are no grounds for the application of the exclusive jurisdiction rules, a court before which the proceedings are pending is expected to check whether the parties – at least one of whom must be domiciled in a Member State – have agreed to cede jurisdiction to a specific court or to the courts of a Member State.
Such an agreement – conferring jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship – embodies the principle of the autonomy of the parties,30 and, according to Article 23, will be valid and effective provided that it is (i) in writing, or evidenced in writing; or (ii) in a form which accords with practices which the parties have established between themselves; or (iii) in international trade or commerce, in a form which accords with a trade or commercial usage.31
The requirement of writing will not be satisfied by the mere fact that a clause conferring jurisdiction is printed on the reverse of a contract drawn up on a commercial standard form of one of the parties.32 However, even where there is no agreement in writing, a clause conferring jurisdiction which is drawn up in a foreign language and contained in an order will be valid, provided that the order arose within the context of an ongoing commercial relationship between the parties.33 It may also be noted that the parties are permitted to make use of communication by any electronic means that provides a durable record of the agreement.
Even in a case where there is a lack of clarity and precision in the clause conferring jurisdiction, that clause will still be valid where the determination of the competent court is capable of being ascertained by way of the interpretation of the court.34
The jurisdiction attributed by any such valid agreement will be exclusive, and will prevail over all other grounds of jurisdiction.35 In consequence, if the court before which the case is pending is the court selected by the parties, or if it is one of the courts of a Member State chosen for the purposes of jurisdiction, that court must determine the dispute.
However, if there is an agreement between the parties providing that the dispute is to be determined by other courts, the court before which the case is pending must decline jurisdiction – although only after having assessed the validity of that agreement in accordance with the applicable law, including conflict of laws rules, in the place where the assessing court sits.36 This will remain the case even where the respondent does not enter an appearance or where an appearance is not entered in order only to contest the jurisdiction.
Indeed, where proceedings are pending before any given court, that court will have jurisdiction, according to Article 24, even if the defendant, who is domiciled in a Member State, enters an appearance without contesting the jurisdiction, notwithstanding that Regulation (EC) No. 44/2001 does not confer to that court power eventually to determine the case – a case of implicit prorogation of jurisdiction.
Article 23 applies only where one or more parties is domiciled in a Member State. However, according to paragraph (3) of that Article, where such an agreement to confer jurisdiction is concluded by the parties, none of whom is domiciled in a Member State, the courts of other Member States will have no jurisdiction over their disputes unless the selected court or courts have declined jurisdiction.
1.3. General and Special Grounds of Jurisdiction
Where there is neither a basis for exclusive jurisdiction nor an agreement to prorogue the jurisdiction of a specific court or of the courts of a Member State, the general rule of jurisdiction will be applied.
Article 2 provides, as a general rule, for the domicile of the defendant, whatever may be his nationality. That rule is also applicable in respect of proceedings where the litigation between the parties has certain connections with a third State, but not with another Member State. Thus, Article 2 covers relationships between the courts of a single Member State and those of a non-Member State, rather than relationships between the courts of several Member States.37
In order to apply the general ground for jurisdiction, it is therefore fundamental to define the concept of “domicile”. For this purpose, Article 59 lays down the conflict of laws rule providing that the court of the Member State seised of the proceedings must apply its domestic law in order to determine whether the defendant is domiciled in that country. In the event that there is no domicile in that country, then, in order to determine whether the respondent is domiciled in another Member State, the law of that country has to be applied.
Otherwise, for legal persons, the Regulation lays down a substantive rule to the effect that the legal person is taken to be domiciled in the place where it has its statutory seat, or its central administration, or its principal place of business. All of those grounds for domiciliary jurisdiction are alternatives, so that “the plaintiff has several alternative fora available”.38 Thus, if any one of those grounds is present in a Member State, the Regulation “is applicable, even though the other grounds would determine that the company was domiciled in a third State”.39
According to Article 3, a person domiciled in a Member State may also be sued in the courts of another Member State, but only by virtue of the special jurisdiction rules set out by the Regulation to that effect. In consequence, in order to consider itself as having jurisdiction, the court before which the proceedings are pending must first examine whether the respondent is domiciled in the Member State in which the court sits, and, if the answer is in the negative, must then go on to ask whether Articles 5, 6 and 7, establishing special jurisdiction rules, are to be applied.
Article 5 contains a set of special grounds for jurisdiction, according to which persons domiciled in one Member State may be sued in another Member State.
Thus, in respect of matters relating to a contract, there will also be the jurisdiction of the courts for the place of performance of the obligation in question. In this context, the Regulation provides that, in relation to the sale of goods, the place of performance is the place in a Member State where, under the contract, the goods were delivered or should have been delivered. Where there are several places of delivery for the goods, the place of performance is to be understood as the place with the closest linking factor between the contract and the court having jurisdiction.40 In relation to the provision of services, the place of performance is deemed to be the place in a Member State where, under the contract, the services were provided or should have been provided.
In matters relating to maintenance, there is the jurisdiction of the courts for the place where the maintenance creditor is domiciled or habitually resident.
In matters relating to tort (delict or quasi-delict), a person can be sued in the courts of the place where the harmful event occurred or may occur.41
The reason for all of these rules of special jurisdiction is a close link between the dispute and the court called upon to hear and determine the case.42
When making a ruling as to its jurisdiction on the basis of one of the grounds provided for by Article 5, a court is required to take into account only the claims which the applicant has set out in the application, disregarding any allegation on the part of the defendant that the facts are not as claimed.43
Article 6 lays down rules related to multiple parties or multiple claims. In such cases, the plaintiff may sue a number of defendants in the courts of the place where any one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.
That provision is to be applied notwithstanding the fact that claims brought against a number of defendants may have different legal bases,44 and will even be applicable where the proposed action is regarded under a national provision as inadmissible from the time it is brought in relation to the first defendant – as with a rule precluding creditors from bringing individual actions against a debtor who has been declared bankrupt.45 However, that same provision cannot be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled.46 Such a danger is avoided by Article 6 (first indent), which provides that claims brought against different defendants will be connected when the proceedings are instituted where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.47
The defendant is permitted to sue a third party, in an action on a warranty or guarantee, in the court seised of the original proceedings, even where the third party is not domiciled in the Member State in which that court sits. However, this possibility is not available if the original proceedings were instituted solely with the object of moving the proceedings from the courts with jurisdiction.
The defendant may lodge a counter-claim in the court in which the original claim is pending, but only if the counter-claim arises from the same contract or facts on which the original claim was based.
An action in matters related to a contract, combined with an action against the same defendant in matters relating to rights in rem in immovable property, may be lodged in the court of the Member State in which the property is situated.
According to Article 26, if none of those grounds of jurisdiction is to be applied, the court before which the case is pending has to decline jurisdiction of its own motion (unless the respondent fails to enter an appearance without contesting the jurisdiction of that court), provided that the defendant was properly served with the document instituting the claim. Otherwise, the proceedings must be stayed – so long as it is not shown that the respondent was properly served in sufficient time to arrange for his defence.
Within the scope of the Regulation, there is a complete system of mandatory rules, with no exceptions – including on the basis of the Common Law doctrine of forum non conveniens, by virtue of which a court is allowed to decline jurisdiction on the ground that a court in a third State would be a more appropriate forum for the trial of the action. Indeed, according to the case law of the ECJ, application of that Common Law doctrine would be liable to undermine the predictability of the rules of jurisdiction laid down by the Regulation, and would consequently undermine the principle of legal certainty, which is the basis of European private international law. Moreover, allowing the forum non conveniens doctrine would be likely to affect the uniform application of the rules of jurisdiction contained in the Regulation and the legal protection of persons established in the Community.48
For the same reasons, national courts have denied the power of the court seised with a case to consider, in order to ascertain the competent court, the obstacle to seising the courts of the domicile of the defendant coming from a time-barred action.49
This position has been criticised on the ground that it amounts to a “systematic dismantling of the common law of conflict of laws”,50 although it has been argued that “it is not impossible to organize or establish a system of private international law that successfully mixes common and civil law features”,51 as has been done under Regulation No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,52 which contains, in its Article 15, a “watered down form of forum non conveniens”.53
1.4. Micro-systems of Rules on Jurisdiction Relating to Particular Cases
There are three specific matters in relation to which Regulation No.44/2001 lays down specific micro-systems of rules on jurisdiction for protective purposes: (i) insurance, (ii) consumer contracts,54 and (iii) individual contracts of employment.
Indeed, it has been suggested that in those areas “contracts usually involve a socio-economic imbalance between the two sides”,55 and then “the weaker party should be protected by rules of jurisdiction more favourable to his interests than general rules provide for”.56 Thus, it is said, proceedings should be conducted in courts which are readily accessible to the weaker party.
For that purpose, while Articles 12, 16(2) and 20 provide that the weaker party may be sued only before the courts of the Member State in which he is domiciled, the other party can be sued before several courts, including the courts of the Member State in which the plaintiff is domiciled or, where the weaker party is an employee, before the courts in the place in which he habitually carries out his work.
In addition, and for the same protective purpose, Articles 13, 17 and 21 provide that an agreement proroguing the jurisdiction of a court or of the courts of a Member State will be valid and effective only if it is entered into after the dispute has arisen, or if it allows the weaker party to bring proceedings in courts other than those specified by the Regulation, or, for the insurance policy-holder and the consumer, if it confers jurisdiction upon the courts of the State in which both parties are domiciled or are habitually resident.
1.5. Lis pendens and Related Actions
Articles 27 to 30 lay down rules to co-ordinate jurisdictions. These rules are necessary because of the availability of alternatives forums for many disputes, that can mean “that proceedings on the same claim may be brought and conducted concurrently in courts in different Member States, with the risk that those courts arrive at mutually incomparable judgments”.57
For that purpose, and particularly to resolve cases of litis pendentiae, Article 27 provides that, where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall, of its own motion, stay its proceedings until such time as the jurisdiction of the court first seised is established.58
Once the jurisdiction of the court first seised has been established, any court other than the court first seised is obliged to decline jurisdiction in favour of that court.
According to the case law of national courts,59 an actio negatoria and a subsequent action for performance of an obligation are to be regarded as proceedings involving the same cause of action.
In order to apply the provision contained in Article 27, it is necessary to identify the time at which proceedings become pending. Thus,60 Article 30 provides that a court is deemed to be seised at the time when the document instituting proceedings is lodged with the court or, if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for such service. This rule applies provided that the plaintiff has not subsequently failed to take any consequent steps.
In the case of related actions, so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings,61 the court is given the opportunity to stay proceedings, but is not required to do so. Thus, the rule attributes the same flexibility to the courts, so that any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the related actions and its law permits the consolidation thereof, provided that those actions are pending at first instance.
1.6. Recognition and Enforcement of Judgments
According to Recital 16 of Regulation No. 44/2001, mutual trust in the administration of justice in the European Community justifies the automatic recognition of judgments given in a Member State without the need for any procedure, except in case of dispute.
Thus, Article 33 establishes that a judgment given in a Member State and within the scope of the Regulation is to be recognised in the other Member States without any special procedure being required. For the purposes of the Regulation, “judgement” is understood as being any judicial decision actually given by a court or tribunal of a Member State deciding on the basis of its own authority upon the issues between the parties.62
According to Article 36, a judgment may under no circumstances be reviewed as to its substance. Accordingly, Article 34 provides that the foreign judgment will not be recognized only (i) if such recognition is manifestly contrary to public policy; or (ii) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence; or (iii) if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought or in another Member State or in a third State, if its results are enforceable. Those circumstances “should arise increasingly rarely, both as legislative harmonisation makes for growing uniformity of public policy within Europe, including in procedural matters, and as conflicting judgments ought normally to be prevented by operation of the rules on lis pendens and related actions”.63
Regulation No. 44/2001 distinguishes between “recognition” and “enforcement” of judgments, and, while the first is automatic, the second requires a simplified procedure, consisting of formal checks of the documents supplied, without there being any possibility for the court to raise, of its own motion, any of the grounds for non-enforcement provided for by the Regulation.
However, according to Recital 18, respect for the rights of the defence means that the defendant should be able to appeal, in an adversarial procedure, against the declaration of enforceability if he considers one of the grounds for non-enforcement to be present. Thus, Articles 43 to 46 grant the party against whom a declaration of enforceability has been delivered the right to appeal against the decision on the ground that it is non-enforceable for one or more of the reasons provided for in Articles 34 and 35.
Interim Relief in Council Regulation No. 44/2001
1. Some Preliminary Remarks on Provisional and Protective Measures
In the field of European judicial co-operation, provisional measures have played an important and controversial role.64 As regards these measures, there is a substantial similarity between the rules established by the Brussels Convention and those established by Regulation No.44/2001, so that it is still useful to consider the case law of the Court of Justice in relation to the Brussels Convention.
In general terms, “provisional measures” are those judicial measures characterised by efficiency and speed, and aimed at protecting the future enforcement of a judgment.65 “Interim relief” is intended to maintain the status quo or to safeguard certain rights, so that the parties may proceed to test the substance of the matter. The fundamental structure of provisional remedies is based upon the existence of the so-called fumus boni iuris (i.e. at least an apparent existence of the right), and by periculum in mora (i.e. the risk of an imminent infringement of the right). If these conditions are met, the judge can grant an order to provide an interim satisfaction or protection of the right, or to provide for some anticipatory effects of the judgment. These characteristics imply that interim measures can never become res iudicata, and that they have effects limited to the relief given in the main trial.
In the case law of the ECJ, interim relief is considered to be an aspect of the right to effective judicial remedies and to a fair trial for the protection of freedoms and rights guaranteed by European Law.66 According to the ECJ, the expression "provisional, including protective, measures" must be understood as referring to measures which, in matters within the scope of the Regulation, are intended to preserve a factual or legal situation, so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.67
2. Jurisdiction Regarding Provisional and Protective Measures in Regulation No. 44/2001
As far as jurisdiction on provisional and protective measures is concerned, Article 31 of Regulation No.44/2001, reproducing the content of Article 24 of the Brussels Convention, states that: “Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter”.68
This rule means that there is a special, and additional, ground of jurisdiction on provisional measures, so that the mere fact that proceedings have been (or may be) commenced on the substance of the case before a court of a contracting State does not deprive a court of another Member State of its jurisdiction under Article 31 of the Regulation, even if that latter court does not, according to the rules of the Regulation, have jurisdiction over the substance of the matter.
In other words, Article 31 provides an additional ground of jurisdiction, which is exclusively founded upon the national rules required for provisional measures. If the conditions established by the judge’s national Law are met, the judge may grant provisional measures, even though a court of another Member State has jurisdiction over the merits of the case.69
Notwithstanding this, however, there are some differences between the powers of the judge who has jurisdiction in relation to the substance of the case and those of the judge who possesses special jurisdiction by way of national rules and Article 31 of Regulation No.44/2001.
On the one hand, the court which possesses jurisdiction as to the substance of a case under one of the heads of jurisdiction laid down in the Regulation also has jurisdiction to order all the provisional or protective measures which may prove necessary, without being subject to any further conditions.
On the other hand, in order to avoid so-called “forum shopping” for provisional measures, and the risk of abuse of the rights deriving from the Brussels Convention (and now from Regulation No.44/2001), the ECJ has stated that the granting of provisional or protective measures on the basis of Article 31 [Article 24 of the Brussels Convention] is conditional upon the existence of a real connecting link between the subject-matter of the measures demanded and the territorial jurisdiction of the State of the court before which those measures are sought.70 The special ground of jurisdiction is justified by the fact that the courts of the place where the assets subject to the measures sought are located are those best able to assess the circumstances which may lead to the grant or refusal of the measures, or to the laying down of conditions which the plaintiff must observe in order to guarantee the provisional and protective character of the measures authorised.71
The Search for Common Characteristics of Provisional and Protective Measures: The Cautious Approach of the Court of Justice
During recent decades, because of the variety of protective remedies in Member States, the ECJ had to find some minimal common characteristics of provisional remedies,72 in order better to define the scope of application of the Brussels Convention. Having regard to the continuity between that Convention and Regulation No.44/2001, regard may be had to the case law of the Court for the present analysis.
First of all, it would appear to be outside the scope of the Regulation to order the hearing of a witness for the purpose of enabling the applicant to decide whether to bring a case, determine whether it would be well founded, and to assess the relevance of evidence. In the absence of any justification, other than the interest of the applicant, the granting of any such order would not meet the aim of the jurisdiction by way of derogation laid down by the Regulation – namely, to avoid causing loss to the parties as a result of the long delays inherent in any international proceedings, and to preserve a factual or legal situation.73
In some cases concerning the interpretation of the rules of the Brussels Convention, now reproduced in Regulation No. 44/2001, the ECJ was asked to define the concept of “interim relief” as, for some national measures, characterised by interim payments, such as the Dutch “kort geding” or the French “référé”.
According to the case law of the ECJ, it is not possible to rule out in advance, in a general and abstract manner, the possibility that the interim payment of a contractual consideration may be necessary in order to ensure the practical effect of the decision on the substance of the case and may, in certain cases, appear justified with regard to the interests involved.74 However, an order for interim payment of a sum of money is such that it may pre-empt the decision on the substance of the case. Moreover, if the plaintiff is entitled to secure the interim payment of a contractual consideration before the courts of the place where he is domiciled, where those courts have no jurisdiction over the substance of the case, the rules of jurisdiction laid down by the Regulation could be circumvented.
Consequently, interim payment of a contractual consideration does not constitute a provisional measure, unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim. Second, the measure must relate only to specific assets of the defendant located, or to be located, within the confines of the territorial jurisdiction of the court to which application is made.75 If these conditions are not met, it is not permitted to recognize and enforce an interim payment order as a provisional measure within the scope of Regulation No.44/2001.76
The principles deriving from the case law of the ECJ – which have partially excluded anticipatory measures such as référé and kort geding from the scope of Article 31 of Regulation No.44/2001 – have a growing importance for Italian judges. Indeed, recent procedural reforms have paved the way for anticipatory measures, which are adopted at the end of summary proceedings typically used for interim relief.77 There is also something akin to the French référé.78
3. The Recognition of Provisional Measures
By comparison with other private international law instruments, a remarkable innovation established by the Brussels Convention and by Regulation No. 44/2001 has been the ability granted to recognize provisionally enforceable judgments and provisional measures.79 However, in order to ensure the protection of the defendant, the ECJ has excluded the recognition of protective orders which have been obtained ex parte.80
The enforcement of measures which are allegedly founded upon the jurisdiction laid down in Article 31 of the Regulation and which go beyond the limits of that jurisdiction does not result in circumvention of the rules on jurisdiction as to the substance set out in the Regulation. The question which arises for the court to which application for enforcement is made, therefore, does not relate as such to the jurisdiction of the court of origin, but, rather, to the extent to which it is possible to seek enforcement of a judgment (as defined by Article 32 of the Regulation) delivered within the scope of the special regime recognised by Article 31.
This matter has been examined by the ECJ with reference to the previously meantioned kort geding and to similar interim measures. According to the resulting case law, if the court of origin has expressly indicated in its judgment that it has based its jurisdiction upon its national law, in conjunction with the special ground for jurisdiction on provisional matters, the court (to which application for enforcement is made) should conclude that the measure ordered – namely, unconditional interim payment – is not a “provisional or protective measure” within the meaning of Article 31 of the Regulation [Article 24 of the Convention] and is, therefore, not capable of being the subject of an enforcement order.
Thus, special jurisdictions on provisional measures cannot be used as a way in which to derogate from the grounds of jurisdiction established by Regulations. It follows that the fact that the defendant appears before the court dealing with interim measures, without any prejudice to the examination of the substance of the matter, is not, in itself, sufficient to confer upon that court unlimited jurisdiction to order any provisional or protective measure which the court might consider appropriate if, under the Regulation, it had jurisdiction as to the substance of the matter.81
Finally, the ECJ has also examined the case of possible conflict between provisional remedies. Thus, it emerges from the Court’s case law that, where a court of the State in which recognition is sought finds that a foreign decision on interim measures, ordering an obligor not to carry out certain acts, is irreconcilable with a decision on provisional measures refusing to grant such an order in a dispute between the same parties in the State where recognition is sought, it will be necessary to refuse recognition of the foreign decision.82
4. The Role of Provisional and Protective Measures in the Procedure for the Recognition and Enforcement of Judgments Provided by Regulation No. 44/2001
Regulation No.44/2001 also deals with interim relief during the procedure for the recognition and enforcement of judgments. For this aspect, we must examine Articles 46 and 47, which correspond to the former Articles 38 and 39 of the Brussels Convention.83
A significant innovation is to be found in Article 47(1), which – by comparison with the Brussels Convention – has improved the protection of the applicant, who now can avail himself of provisional measures in accordance with the Law of the Member State requested, without a declaration of enforceability under Article 41 being required. This means that the applicant can ask the court to grant provisional measures, since he will take advantage of the existence of the foreign judgment as the fumus boni iuris.
Similarly to the position under the Brussels Convention, in order to guarantee the effective enforcement of judgments, Regulation No. 44/2001 allows the creditor to seek all protective measures provided by the Law of the Member State addressed. These measures have to be granted without meeting any additional requirements which may usually be provided by national laws.84 Consequently, this means that, by virtue of Article 47 of Regulation No. 44/2001, a party who has applied for, and has obtained, authorisation for enforcement, may proceed directly with protective measures against the property of the party against whom enforcement is sought, and is under no obligation to obtain specific judicial authorisation. Such measures may be taken up until the expiry of the period for lodging an appeal prescribed in Article 43 of Regulation No. 44/2001 – and, if such an appeal is lodged, until such time as a decision is given. Consequently, during the period in question, the party may not take any measures of enforcement, properly so called, but must confine himself to taking protective measures. The authorisation for such measures flows directly from the declaration of enforceability.
Italian courts have paid special attention to the European case law concerning protective measures during the procedure for recognition and enforcement. The Corte di Cassazione (Court of Cassation), in conformity with the principles laid down by the ECJ, has stated that, by virtue of Article 39 of the Brussels Convention [which corresponds to Article 47 of Regulation No.44/2001], a creditor who has obtained authorisation for enforcement may proceed directly with the protective measure of sequestration of immovable property, without the need to obtain any judicial validation as provided for by the Italian Civil Procedure Code.85 According to this point of view, the creditor is also permitted to obtain temporary attachment by way of garnishment, as well as to register mortgages, because the registration of mortgages is a measure provided for by Italian Law as an automatic consequence of a judgment containing an order to pay money.
However, so far as other Italian provisional measures are concerned,86 some of these cannot, in practice, be taken without judicial authorisation. For example, judicial sequestration needs a judicial identification of the goods as well as settlement of their custody – foreign judgments normally do not have such contents.87
It is clear that the creditor will not be permitted to distrain on immovable property or to seize movable properties, because those acts are not “provisional measures” but, instead, mark the commencement of the enforcement procedure properly so called, being aimed at a definitive expropriation.
4.1. Interim Relief and Ordinary Appeals in the Exequatur Procedure
A provisional protection for the party against whom enforcement is sought is furnished by Article 46 of Regulation No.44/2001. This Article provides that, on application by the interested party, the court with which an appeal is lodged under Article 43 or Article 44 may stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin, or if the time for such an appeal has not yet expired. In the latter case, the court may specify the time within which such an appeal is to be lodged.88
This pre-supposes that reasonable doubts arise with regard to the fate of the decision in the State in which it was given. At the same time, the judge should consider whether the appeal is a part of the normal course of an action, so that it is a procedural development which is reasonably to be expected.
Moreover, the Regulation prohibits the courts of the State in which enforcement is sought from reviewing the substance of the judgment given in the first State. As a consequence of this, a court with which an appeal is lodged against an order for the enforcement of a judgment given in another State may take into consideration – in a decision concerning an application for the proceedings to be stayed – only such submissions as the appellant was unable to put before the court of the State in which the judgment was given.89
Finally, a decision by which a court of a State, seised of an appeal against authorisation to enforce a judgment of a court of another State, refuses a stay or lifts a stay previously ordered, does not constitute a "judgment given on the appeal" within the meaning of Article 44, and, therefore, cannot be challenged by way of an appeal in cassation or any similar form of appeal limited to the examination of points of law only.90
Conclusions and Proposals
The analysis of interim relief under the Brussels Convention and in Regulation No.44/2001 shows that the European Court of Justice has tried to define some essential characteristics of the provisional measures, but has been faced with the variety and differences of national civil procedure rules.
In consequence, it would appear to be advisable, in the field of judicial co-operation within the European Union, for the Member States to lay down fundamental rules on interim relief, since provisional measures are indispensable in order to give effectiveness to the right to a fair trial recognised by Article 47 of the Charter of Fundamental Rights of the European Union and by Article 6 of the European Charter of Human Rights.
In order to achieve such an aim, mutual trust91 between national procedure systems needs to be more strongly emphasised, bearing in mind that a common basis for interim relief can provide greater efficiency for judicial co-operation and to domestic judicial activities.
2. The Regulatory Framework…………………………..…………………….p. 1
3. The Communitisation in the Treaty of Amsterdam….……………………2
4. The Jurisdiction of the Court of Justice……………………………………..3
5. The Concept of ‘ Civil and Commercial Matters’……….…………………..5
1. Regulation (EC) No. 44/2001
1.1. Preliminary Remarks ..........................................................................6
1.2. Exclusive Jurisdiction….…………………………………………….…………...7
1.3. Prorogation of Jurisdiction.……………….……………………………………..8
1.4. General and Special Grounds of Jurisdiction........................................9
1.5. Microsystems of Rules on Jurisdiction Relating to Particular Cases....12
1.6. Lis Pendens and Relater Actions…………………………………..………..…12
1.7. Recognition and Enforcement of Judgments………………..……………..13
Interim Relief in the Council Regulation No. 44/2001……………………14
2. Jurisdiction Regarding Provisional and Protective Measures in Regulation No. 44/2001…….………………………………………………………………………………….15
The Search for Common Characteristics of Provisional and Protective Measures: The Cautious Approach of the Court of Justice…..……………………………………16
3.The Recognition of Provisional Measures……………………………………………17
4. The Role of Provisional and Protective Measures in The Procedure for The Recognition an Enforcement of Jugements Provided by Regulation n. 44/2001…18
4.1.Interim Relief and Ordinary Appeals in the Exequatur Procedure………….19
Conclusion and Proposals………………………………………………………………….20
Ambrosi e Scarano (eds.), Diritto civile comunitario e cooperazione giudiziaria civile, Giuffrè, 2005;
Baratti, La cooperazione giudiziaria in materia civile dal terzo pilastro dell’Unione europea al Titolo IV del Trattato CE, in Il Diritto dell’Unione europea, 2001;
Biavati, L'impatto del diritto comunitario nel processo civile, in Rivista trimestrale di diritto e procedura civile, 2008, 227;
Campeis – De Pauli, Esecuzione di sentenze straniere e provvedimenti conservative ai sensi della Convenzione di Bruxelles del 27 settembre 1968: compatibilità con il sistema processuale italiano, in Giustizia civile, 1987, II, 414;
Campeis –De Pauli, Prime riflessioni sulla disciplina delle notifiche in materia civile e commerciale nell’Unione europea, in Giustizia Civile, 2001, II, 239;
Carbone, Lo spazio giudiziario europeo in materia civile e commerciale, Giappichelli, 2005;
Consolo, The subtle interpretation of the case law of the European Court on provisional remedies, in Zeitschrift fur Schweizerisches Recht, 2005, II, 359;
Cuniberti, Les measures conservatoires, Paris 2000;
De Cesari, Diritto internazionale privato e processuale comunitario, Giappichelli, 2005;
De Cristofaro, Exequatur di sentenze comunitarie e straniere e tutela interinale dell’istante, in Giurisprudenza italiana, 1996, 713;
De Cristofaro, Presupposti e rimedi per il provvedimento che “sospende” l’opposizione all’exequatur o il riconoscimento di sentenza comunitaria, in Rivista di diritto internazionale privato e processuale, n. 3/1998, 745;
Fragola, Osservazioni sul Trattato di Lisbona tra Costituzione europea e processo di decostituzionalizzazione, in Diritto comunitario e degli scambi internazionali, n. 1/2008, Editoriale scientifica;
Freudenthal, The Future of European Civil Procedure, vol 7.5. Electronic Journal of Comparative Law (December 2003), http://www.ejcl.org/ejcl/75/art75-6.html
Giacalone, Il Regolamento CE n. 44/2001 sulla competenza giurisdizionale e l’esecuzione delle sentenze in materia civile e commerciale (c.d. Bruxelles I), in Diritto civile comunitario e cooperazione giudiziaria civile, Giuffrè, 2005;
Guarnieri, Esecuzione di sentenza straniera e sequestro conservativo, in Corriere giuridico, n. 1/1998, 37;
Hartley, Interim measures under the Brussels Jurisdiction and Judgments Convention, in European Law Review, 1999, 674;
T. Hartley, The European Union and the Systematic Dismantling of Common Law of Conflict of Laws, 54 International and Comparative Law Quarterly 2005;
Honorati, Il nuovo procedimento pregiudiziale d’urgenza per i rinvii relativi allo spazio di libertà, sicurezza e giustizia, in Rivista di diritto internazionale privato e processuale, n. 2/2008;
Kennett, Enforcement of Judgments in Europe, Oxford 2000;
Merlin, Le misure provvisorie e cautelari nello spazio giudiziario europeo, in Rivista di diritto processuale, n. 3/2002, 759;
Pagano, La materia civile con implicazioni transfrontaliere e le competenze comunitarie di diritto internazionale privato, in Il Diritto dell’Unione europea, n. 1/2008;
Pocar, Commentario breve ai Trattati delle Comunità e dell’Unione europea, Cedam, 2001;
Pocar, Brussels I, commentary, Council of the European Union and General Secretariat of the Council, Civil law – European civil cooperation, Luxembourg, 2005;
Querzola, Tutela cautelare e convenzione di Bruxelles nell’esperienza della Corte di Giustizia delle Comunità europee, in Rivista trimestrale di diritto e procedura civile, n. 3/2000, 805;
Salvioni, Brevi note sulla disciplina applicabile al sequestro conservativo attuato, ex art. 47, Reg. CE 44/2001, in pendenza dell’opposizione al decreto di esecutività di sentenza comunitaria, in Giurisprudenza italiana, n. 11/2007, 2541;
Stadler, From the Brussels Convention to Regulation 44/2001: Cornerstones of a European Law of Civil Procedure, in Common Market Law Review, 2005, 1642;
Tizzano (edited by), Trattati dell’Unione europea e della Comunità europea. I testi fondamentali commentati con la dottrina e annotati con la giurisprudenza, Milano 2004;
Tridimas, The General Principles of EC Law, Oxford 1999.