Judicial Cooperation in civil matters

1. Judicial Cooperation in civil matters Jurisdiction of courts Brussels I Regulation

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

3. The importance of international jurisdiction • Different attitudes of Europe and USA. • USA (non – continental law) – „fairness“, „reasonableness“, „forum non conveniens“. • Basic source – US Constitution – Due Process Clause. • European – formal rules. • Hague convention (worldwide) – not successful. • Yahoo! case

4. Brussels I Regulation • Council Regulation n.44/2001 of 22 December 2000 • Substitutes the Brussels I Convention (some changes have been accepted) • Deals with jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters.

5. Brussels I Regulation – The Denmark situation • In 1997 when creating the Amsterdam Treaty the member states agreed upon The Protocol on the position of Denmark – Denmark is not cooperating within this field. • However in 2005-mutual negotiations led to coclusions of an international agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 16/11/2005 L299 p. 62)

6. The Brusssels I RegulationThe Denmark situation • Upon this agreement the provisions of the Brussels I regulation shall apply to the relations between the Community and the Denmark (with the exception given in the agreement). • Entered into force – 1.7.2007.

7. The Brussels I Regulation General Characteristics • 76 articles, divided into eight chapters: I – Scope of application II – Jurisdiction III – Recognition and enforcement IV – Authentic instruments and court settlements V – General Provisions VI – Transitional Provisions VII – Relations with other instruments VIII- Final Provisions

8. The Brussels I RegulationScope of application • Material scope of application – article 1 of the Regulation – civil and commercial matters • Territorial scope of application – Domicile of the defendant in a Member state (all without Denmark) • Temporal scope of application – proceedings after 1 March 2002 • International element (extensive interpretation- Owusu case – ECJ Case C 281/02 of 1 March 2005)

9. The Brussels I RegulationThe material scope of application • Article 1 of the Regulation : civil and commercial matters, whatever the nature of the court or tribunal. • Matters of private law? – Case Volker Sonntag v. A. Waidman ECJ Case – C- 172/91 of 21 April 1993 • Negative – exemptions in art. 1 para 2

10. The Brussels I RegulationJurisdiction • Tells us the member state whose courts have jurisdiction in the case. • Has to be distinguished from internal jurisdiction – relations between courts of one member state – regulated by national law. e.g. – the regulation -----> Czech courts Which Czech court? -------> Czech civil procedure code

11. The Brussels I RegulationJurisdiction - system

12. The Brussels I RegulationJurisdiction – Basic rule • The Basic rule of the jurisdiction – art. 2 of the Regulation: „Subject to this Regulation, persons domiciled in a Member state shall, whatever their nationality,be sued in that Member state“. Actor sequitur forum rei (The claimant follows the defendant).

13. The Brussels I RegulationSpecial jurisdiction • Articles 5-7 – alternative jurisdiction to the jurisdiction based upon the general (basic) rule in article 2. • Brings the possibility to „opt out“ the most suitable courts – the possibility to „keep“ the proceedings in „my“ state.

14. The Brussels I RegulationSpecial Jurisdiction Article 5 – • Place of performance • Maintenance claims • Tort • Civil claims for damages or restitution based upon act giving rise to criminal proceedings • Disputes arising out of the operation of a branch, agency or other establishment • Trust operations • Payment of remuneration claimed in respect of the salvage of a cargo or freight.

15. The Brussels I RegulationSpecial Jurisdiction Article 5 para 1 – Place of performance The person domiciled in one Member state, may be sued in another member state: In matters relating to a contract – in the courts for the place of performance of the obligation in question. Place of performance – interpreted directly in the Regulation. • Judgment of the Court (Fourth Chamber) of 3 May 2007. Color Drack GmbH v Lexx International Vertriebs GmbH. The first indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as applying where there are several places of delivery within a single Member State. In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of its choice.

16. The Brussels I RegulationSpecial jurisdiction • Art. 5 para 2 – maintenance claims ,,,,, the courts for the place, where the maintenance creditor is domiciled or habitually resident,,,,,,, Example: ECJ Case C- 433/01 of 15 January Freistaat Bayern v Jan Blijdenstein.

17. The Brussels I RegulationSpecial jurisdiction • Art. 5 para 3 – tort ……….in matters relating to tort, delict or quasi delict, in the courts where the harmful event occured or may occur…… Difficult interpretation of the notion „harmful event“: Decision Mines de Potasses d´Alsace –ECJ Case 21/76 of 30 November 1976

18. The Brussels I RegulationSpecial Jurisdiction • Harmful event – other decisions • Kronhofer – ECJ Case 168/2002 • Shevil case –ECJ Case 68/93

19. Brussels I RegulationSpecial Jurisdiction • Art 6 – pending cases • More defendants – in the place, where any of them is domiciled, • Third party – action on waranty or guarantee • Counter - claim actions • Matters relating to a contract – may be combined with action in matters relating to rights in rem against the same defendant

20. Brussels I RegulationExclusive Jurisdiction • Art. 22 sets down rules for jurisdiction regardless the domicile of the defendant: • E.g. In proceedings which have as their object rights in rem in immovable property –the courts of member state where immovable property is situated, • In proceedings which have as their object validity of entries in public register, the courts of the member state, in which register is kept.

21. The Brussels I Regulation Prorogation of jurisdiction • Art.23 Is (in the general principle) not allowed in: Insurance contracts, consumers contracts, individual contracts of employment.

22. The Brussels I RegulationJurisdiction by appearance • Even if the jurisdiction rules in this regulation establish jurisdiction of different courts – courts of another member state shall have jurisdiction if the defendant „enters an appearance“. • Does not apply: • In cases of exclusive jurisdiction, • If the defendant appears only to contest the jurisdiction.