EU Case Law The Brussels Regulation

1. EU Case LawThe Brussels Regulation Imelda Higgins,BL 14 November 2005

2. Presentation Overview • Background • General principle • Scope of Regulation • Overview of rules governing jurisdiction • Article 2 • Forum Non Conveniens • Lis Pendens

3. Background • Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - 27/09/1968 • Justification: freedoms established by Treaty of Rome required a reformed system for the enforcement of judgments (e.g. free movement of goods)

4. Background • Form of convention justified by desirability within the EEC of harmonising laws, promoting legal certainty, avoiding discrimination and facilitating the free movement of judgments (Jenard Report, 1979 OJ C59/1) • Came into effect between original Member States on 01/2/1973 • New Member States acceded as they joined EEC

5. Background • Lugano Convention parallel convention in largely identical terms to Brussels Convention • Concluded between EC Member States and EFTA countries (and Poland) • Continues to apply between pre May 2004 Member States, and Poland, Norway, Switzerland, Iceland and Leichtenstein

6. Background • Brussels Convention replaced by Council Regulation 44/2001 (Brussels Regulation) • Denmark not party to Regulation but will accede in early 2006 • Brussels Convention continues to apply to territories of Member States which are outside the EU

7. Overview of Regulation: Underlying Principle: • Doctrine of Mutual Trust: Case C-116/02 Gasser, 9/12/2003 • “….it must be borne in mind that the Brussels Convention is necessarily based on the trust which the Contracting States accord to each other’s legal systems and judicial institutions. It is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within the purview of the Convention are required to respect, and as a corollary the waiver by those States of the right to apply their internal rules on recognition and enforcement of foreign judgments in favour of a simplified mechanism for the recognition and enforcement of judgments.”

8. Overview of Regulation: Scope • According to Art. 1, Regulation applies in civil and commercial matters excluding • revenue, customs or administrative matters • the status or legal capacity of natural persons, matrimonial matters, wills and succession • bankruptcy • social security • arbitration -(Case C-190/9 Rich [1991] ECR I-03855)

9. Overview of Regulation: Rules of Jurisdiction • General principle - Article 2 - jurisdiction is exercised in the Member State in which the defendant is domiciled • Case C-412/98 Group Josi • “That jurisdictional rule is a general principle, which expresses the maxim actor sequitur forum rei, because it makes it easier, in principle for the defendant to defend himself”

10. Overview of Regulation: Rules of Jurisdiction • Article 5: Special rules of jurisdiction laid down re • matters relating to contracts (excluding employment contracts) • matters relating to maintenance • matters relating to tort, delict or quasidelict • a civil claim for damages or restitution following an infringement • the operations of a branch, agency or other establishment • payment of remuneration claimed in respect of the salvage of a cargo or freight

11. Overview of Regulation: Rules of Jurisdiction • Special rules of jurisdiction laid down re • matters relation to insurance (Arts 8 - 14) • consumer contracts (Arts 15 - 17) • individual contracts of employment (Arts. 18 - 21) • exclusive jurisdiction (Art. 22) • prorogation of jurisdiction (Art. 23) • provisional and protective measures (Art. 31)

12. Overview of Regulation: Rules of Jurisdiction • Case 168/02 Kronhofer v. Maier and others: • “Those special jurisdictional rules must be restrictively interpreted and cannot give rise to an interpretation going beyond the cases expressly envisaged by the Convention”

13. Rules of Jurisdiction: Article 2 • Domicile is determined by relevant national law • Where a number of Defendants, can sue in the courts for the place where any one of them is domiciled (Article 6) • Domicile of Defendant is key. Regulation applies even where Plaintiff not domiciled in Member State unless exceptional circumstances (Case C-412/98 Group Josi)

14. Rules of Jurisdiction: Forum Non Conveniens • Case C281/02 Owusu v. Jackson • The Brussels Convention precludes a court of a Contracting State from declining jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State

15. Rules of Jurisdiction: Forum Non Conveniens • Re Harrods (Buenos Aires Ltd) 1992 CH 72 • D.C v. W.O.C. [2001] 2 IR 1 Finnegan J • Intercare Ltd. Kelly J 25/03/2003

16. Rules of Jurisdiction: Lis Pendens • Article 27(1) 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 estrablished • Article 28 governs related actions (may stay)

17. Rules of Jurisdiction: Lis Pendens • “Case C-116/02 Gasser 9/12/00 • “It must be borne in mind at the outset that Article 21 of the Brussels Convention, together with Article 22 on related actions is contained in Section 8 of Title II of the convention which is intended, in the interests of the proper administration of justice within the Community, to prevent parallel proceedings between the courts of different Contracting States and to avoid conflicts between decisions which might result therefrom”

18. Rules of Jurisdiction: Lis Pendens • Case C-144/86 Gubisch Maschinenfabrik v. Palumbo [1987] ECR 4861 • Case C-406/92 The Tatry v. The Maciej Ratja [1994] ECR I-5439 • Case C-111/01 Gantner Electronic

19. Rules of Jurisdiction: Lis Pendens • Two actions are identical if they are between the same parties and involve the same cause of action and the same subject matter • The cause of action comprises the facts and the rules of law relied on as the basis of the action: • The object of the action is the end the action has in view • It is not necessary that the two claims are entirely identical • Only claims are looked at not defence

20. Rules of Jurisdiction: Lis Pendens • Gubish: • Action in Germany for payment arising from a contract of sale. • 2nd Action in Italy seeking a declaration that the contract between both parties was invalid. • Validity of the contract at heart of both actions

21. Rules of Jurisdiction: Lis Pendens • Tatry: • Action demanding a negative declaration concerning liability for damages brought in Dutch court. • 2nd action for payment of damages bought before an English Court. • Both concerned the question of liability and thus involved same cause of action

22. Rules of Jurisdiction: Lis Pendens • Same parties - • parties to be identical • defined irrespective of their procedural position • where some parties identical, proceedings can continue as between other parties -Tatry

23. Rules of Jurisdiction: Lis Pendens • Case C-116/02 Gasser 9/12/2003 • A Court second seised whose jurisdiction has been claimed under an agreement conferring jurisdiction must nevertheless stay proceedings until the court first seised has declared that it has no jurisdiction. • This is so even where the duration of proceedings before the courts of the Contracting State in which the court first seised is established is excessively long