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Jurisdiction, Recognition and Enforcement of Judgments under EC Law

Prof Dr Thomas Rauscher. Brussels I-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 -EnforcementOrder-reg Synopsis Brussels Conv // Reg

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Jurisdiction, Recognition and Enforcement of Judgments under EC Law

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  1. Prof Dr Thomas Rauscher Brussels I-Regulation Jurisdiction, Recognition and Enforcement of Judgments under EC Law TR 2007

  2. EU-materials ECJ-decisions Text and collected materials EC-reg about civil procedural law -Brussels I-reg -EnforcementOrder-reg Synopsis Brussels Conv // Reg ECJ-decisions on Brussels Conv/Reg Study book Commentary www.europe.eu www.curia.eu www.euzpr.eu EU-documents (procedure, civil law, commercial law) Brussels I-synopsis ECJ decisions Rauscher, IPR3, 2009, C.F.Müller, Heidelberg Rauscher, EuZPR/EuIPR, 2011,Sellier ELP, München Study Materials (partly in German only) TR 2007

  3. Jurisdiction Preliminary rulings under Art 267 lit b TFEU as EC/EU-Reg are EU lawTFEU= Treaty on the Functioning of the EU Art 68 restrictions of former ECT (EC-Reg on CP based on Arts 61 lit c & 67 V) abolished Sources & methods of interpretation ECJ‘s decision on former Brussels I convention to be consideredECJ=Eur Court ofJustice Autonomous („european“) interpretation applies with few exceptions by ECJ: Art 5 (1) lit a & c (place of performance) by regulation: Art 59 (domicile) Interpretation of EC-Reg on Civil Proc by ECJ TR 2007

  4. Aspects covered: Jurisdiction (intl) Lis pendens between Member States Recognition of Member State Judgments Enforcement of Member State Judgments Member State defined: Art 1 (3): all EU members without Denmark (Art 69 ECT) Convention on the application of Brussels I-Reg for Denmark, in force since July 1, 2007 Reg Nr 44/2001 of 12/22/2000: „Brussels I-Reg“ TR 2007

  5. Members: Brussels I C & R / Lugano 1968 Brussels Convention 1978 1st Access Convention 1982 2nd Access Convention 1988 Lugano Convention 1989 3rd Access Convention 1996 4th Access Convention 1990 Lugano Extension now Lugano 2007 Brussel I-reg 2002 2004 2007 TR 2007

  6. General Rule: Art 66 (1): Proceeding instituted after March 1, 2002 (vv after joining the EU) „instituted“ = „court seised“ (Art 30) Extended Recognition: Art 66 (2): Judgments given after March 1, 2002, if - action (before 03/01/2002) under Brussels or Lugano Conventions or - rules of jurisdiction in accordance with Brussels I Temporal scope of application (Art 66) TR 2007

  7. A German resident caused a traffic accident with a Hungarian resident in Budapest in June 2003 The Hungarian brought an action for damages to the Budapest court in November 2003 … receiving a judgment in 2006. He wants to enforce it in Germany P: temporal scope: Art 66 (1): proceeding instituted after 03/01/2002 (+) But: Hungary joined EU 01/01/2004  proceeding instituted after 01/01/2004 (-) Art 66 (2): Judgment after 01/01/2004 (+) Rules of jurisdiction in accordance with Brussels I-Reg (Art 5 (3)) (+) Case: fictitious(temporal scope of application) TR 2007

  8. Regulation supersedes Brussels Convention (except for territories excluded from the scope of application of EUT) – Art 68 Regulation supersedes conventions between Member States as mentioned in Art 69 Only within the temporal, material, personal scope of application Regulation does not supersede conventions with third parties Brussels I Reg and Conventions TR 2007

  9. Art 1 (1): Civil and Commercial Matters Art 1 (2): particular exceptions Autonomous interpretation Nature of court irrelevant (civil action in penal court) Not, if administrative body acting by subordination Not: Revenue and Customs Civil Status (for Divorce see Brussels IIa) , Succession, Matrimonial Property Bankruptcy proceedings Social Security Arbitration Material Scope of Application (Art 1) TR 2007

  10. Action against a public school teacher who during a school excursion caused a fatality of a student by negligent and unlawful breach of his duties of supervision Coverage provided under a social insurance scheme governed by public law Action pending in a criminal court P: criminal court: Art 1: „whatever the nature of the court” P: civil matter: Action for compensation resulting from negligence is civil in nature even if brought in a criminal court (Art 5 (4)) Teacher in a public school performs same functions as teacher in a private school No exercise of public powers by teacher in charge of pupils during a school excursion Case: Sonntag v Waidmann Rs C-172/91(autonomous interpretation of civil matters) TR 2007

  11. Divorce proceeding between spouses deCavel In this proceeding the French court awarded maintenance to one party payable in monthly installments Enforcement sought in Germany P: civil matter:Art 1 (1)maintenance is civil matter  special jurisdiction Art 5 No 2 Art 1 (2) personal status excluded  maint. Judgment given in divorce proceeding However: maintenance not excluded Art 5 (2) Similar situation as under Art 5 (4) (ancillary civil matter in criminal proceeding)  ancillary maintenance proceeding not excluded Case: de Cavel v de Cavel (2) Rs 120/79(civil matter – maintenance) • MAINTENANCE:Jur isdiction & Recognition from June 18,2011 under Regulation no 4/2009 TR 2007

  12. Art 3 Art 4 (1)Art 4 (2) Art 5, 22, 23 Domicile defined: Art 59 Art 60 Defendant: domiciled in any Member State (Art 1 (3))Plaintiff‘s domicile irrelevant Otherwise: lex fori including equal treatment of EU-domiciliaries (for the purpose of annex 1 jurisdictions aka „exorbitant“ jurisdictions) Particular prerequisites Natural person: Definition according to the law of the state of domicile Companies/legal person: Statutory seat, administration, branch Personal Scope of Application (Jurisdiction Rules) TR 2007

  13. Plaintiff residing in Hungary Rented a holiday flat situated in Switzerland to a resident of Russia, who has a secondary residence in Germany Plaintiff brings an action for payment in a Hungarian court Alt: The action is brought in a Swiss court P: personal scope: Art 3 (1) defendant domiciled in a Member state Art 59 (1)  Hungarian Law  no connection to Hungary  no domicile in H Art 59 (2)  German Law  § 7 GCC domicile in D Brussels I-Reg applicable, but no jurisdiction in H (Art 22 no 1 s 1 alt 2) “GCC”=German Civil Code P: territorial/personal scope: Switzerland is not a Member state  Brussels I-Reg (-) Lugano Conv 2007 (+) Art 3 (+) Art 22 no 1 s 1 alt 2 (+) Case: ficticious(determination of the domicile) TR 2007

  14. General J(Art 2) Particular J(Art 5-7) Exclusive J(Art 22) J Agreement(Art 23, 24) Protective Js Art 8-14 Art 15-17 Art 18-21 Domicile of defendant for all purposes (except exclusive Js) no „forum non conveniens“-exception Certain causes of action, choice of plaintiff (except exclusive Js) Certain causes of action, no choice; takes preference over other Js Agreement or Appearance (except exclusive Js) Closed systems apply to Insurance cases Consumer contracts Individual contracts of employment Jurisdictional System (J=Jurisdiction) TR 2007

  15. General PrerequisiteArt 5 s 1 Why special Jurisdictions? Are special Jurisdictions mandatory? Defendant domiciled in one, proceeding in other Member State Best administration of justice requires closeliness to proof, local rules etc No, plaintiff may choose between Art 5 and Art 2 Special Jurisdiction (Art 5) TR 2007

  16. Contract casesArt 5 No 1 Art 5 No 1 lit a Art 5 No 1 lit b Contract: Claim arising out of contractual relationship (even if validity in dispute) No annex J for tort claims Not applicable if indefinite places of perf. Relevant Obligation: Primary obligation in question Place of Performance: According to the law as applicable under the conflict rules of the forum Except: Agreement as to place of performance Except: Sale of goods: place of delivery Except: Services: place of provision of serv. One place of perf. as defined for the entire contract Contract: Place of Performance (Art 5 No 1) TR 2007

  17. Parties Plaintiff: Grantee of an exclusive distributorship right (registered office in B) Defendant: Grantor (established in F) Subject: Unilateral breach of contract without preliminary notice done by the grantor Grantee seeking dissolution of the contract and damages P: Jurisdiction of B courts: Brussels I Conv:Art 5 (1) (a): Obligation in question  contractual obligation of the defendant which corresponds to the contractual right relied upon by the plaintiff Relevant place: where the obligation of the grantor must be performed (applicable law as decided under conflict rules of the court) Brussels I Reg: Art 5 (1) (b): Exclusive distributorship contract = provision of services Relevant place: where the services (obligation of the plaintiff) have been provided (autonomous interpretation) Case: De Bloos v Bouyer Rs 14/76(place of performance) TR 2007

  18. Tort defined Jurisdiction at Tort (delict, quasi-del): Responsibility for damages without contract No annex J for contract claims Pre-contractual obligation under good faith are Art 5 No 3 rather than Art 5 No 1! Place where the tort occurred Torts comitted over distance:Creditor may choose between places of tortious action and tortious success Torts with multiple pl. of success (press related, environmental!):Choice, however damages restricted to those arising in the country of the court Preventive claims („may occur“) Where tort threatens to occur; including preventive action brought by consumer protection agency against general conditions Tort (Art 5 No 3) TR 2007

  19. Fiona Shevill, a UK national & resident, brought an action for damages for harm caused by the publication of a defamatory newspaper article against Presse Alliance SA, a French company, publisher of newspaper called France-Soir France-Soir had published an article on an operation carried out by the French police’s drug squad officers at a “bureaux de change”, where plaintiff was employed France-Soir mainly distributed in France (237.000 copies), few copies sold in the UK (230), 15.500 in the rest of Europe) Plaintiff seeks compensation P: Jurisdiction in the UK Art 5 No 3 "place where the harmful event occurred“ „place, where the damage occurred“ places where the publication is distributed, if the victim is known in those places jurisdiction to rule solely in respect of the harm caused in the State of the court seised „place where the harmful event originated” from which the libel was issued and put into circulation place where the publisher of the defamatory publication is established; those courts having jurisdiction to award damages for all damages caused by the defamation Case: Shevill v Presse Alliance Rs C-68/93(place, where the damage occurred) TR 2007

  20. Maintenance(Art 5 No 2) Adhesion(Art 5 No 4) Agency(Art 5 No 5) Trust (Art 5 No 6) Salvage of cargo(Art 5 No 7) Maintenance in family relation: Forum actoris at plaintiff‘s domicile/ habitual residence Not applicable if public entity sues for compensation under cessio legis Civil damages in Criminal Court if competent; Exception: Art 61: Rights of defense Permanent Branch, own management, under supervision;only for claims arising out of the branch‘s operation Action as settlor, trustee, beneficiary of a trust: Domicile of the trust Jurisdiction at the place where cargo has been/could have been arrested Other Special Jurisdictions (Art 5 No 2, 4-7) TR 2007

  21. The daughter of Blijdenstein, a resident of the Netherlands, received an education grant from the Free State of Bavaria. Bavaria was seeking reimbursement of the grant at a Munich court. P: Jurisdiction Art 5 (2): matters relating to maintanance  doesn’t contain any indication as to which party may be the applicant Art 5 (2) offers the maintenance applicant (being the “weaker party”) an alternative jurisdiction This specific objective prevailed over the objective of Art 2 (defendant as generally weaker party) However: public body is not in an inferior position Public body can’t make use of Art 5 (2) in an action for recovery Case: Bayern v Blijdenstein Rs C-433/01(maintanance) Art 5(2) abolished: see now Art 3 Reg no 4/2009 TR 2007

  22. General prerequisite: Several Defendants(Art 6 No 1) InterventionWarranty(Art 6 No 2) Counterclaim(Art 6 No 3) Rights in rem(Art 6 No 4) (additional) defendant domiciled in a Member State First defendant domiciled in court state;Close connection between claims (as under Art 28 (3)) Concerning warranty, guarantee, other third part proceeding;Not if sole intention to remove from other jurisdiction;Not applicable in A, D & H (Art 65) Same contract or cause of actionCompensation: Means of defense, no J necessary Personal action combined with real property action Several Parties (Art 6) TR 2007

  23. R, a Liechtenstein company, brought an action for payment to the District Court of Bezau (A) against G, domiciled in Austria, and K, a German company K provided a security for G action against G was dismissed, because bankruptcy proceedings had been instituted before R’s action K objected jurisdiction P: Jurisdiction: Art 6 I: a defendant may be sued, if he is one of a number of defendants, in the courts for the place where any one of them is domiciled provisions of the regulation must be interpreted independently, by reference to its scheme and purpose cannot be interpreted with regard to the effects of domestic rules Art 6 (1) may be relied on even if the action is regarded inadmissible in relation to the first defendant from the very moment it is brought Case: Reisch AG v Kiesel GmbH Rs C-103/05(several defendants) TR 2007

  24. Scope of application Why exclusive Jurisdiction? „regardless of domicile“ – even if defendant not domiciled in any Member State Applies only to criteria situated in Member States Usually public interest involved No valid prorogation against exc J No entering an appearance against exclusive Jurisdiction. Exclusive Jurisdiction (Art 22) TR 2007

  25. Real rights, rentdefined Holiday Flats exception Immovable property rights: against everybody; no personal claims Tenancies: right of use against payment (autonomous def.) Immovables defined by lex fori Private tenancies, not to exceed 6 months Both parties domiciled in same Member State additional J of courts of domicile Real property (Art 22 No 1) TR 2007

  26. Gaillard sold immovable property in France to Chekili The contract was agreed on to be closed under notarial deed within four months, what never happened G brought proceedings against C for rescission of the contract and for damages P: jurisdiction: Art 22 (1): autonomous definition of “proceedings which have as their object rights in rem in immovable property” only actions to determine the extent, content, ownership or possession of immovable property Even if an action for rescission of a sales contract may have immediate impact on the title to property, it is based on a right in personam. as it may only be raised inter partes, not erga omnes  not within the scope of Art 22(1) Case: Gaillar v Chekili Rs C-518/99(exclusive Jurisdiction) TR 2007

  27. Material Scope Territorial Scope Applicability (temporal) Admissibility, parties, form, gen.cond Particular relationship A court or courts of a Member State Material validity? Domicile of one party in Member State Courts of a Member State No mere national case (unwritten) Art 66: Applies also to agreements entered into before March 1, 2002 Exception: No invalidity if agreement was valid before J Agreements (Art 23) / Scope of Application TR 2007

  28. In WritingArt 23 (1) lit a/1 Evidenced inWritingArt 23 (1) lit a/2 PracticesArt 23 (1) lit b Usage inintl TradeArt 23 (1) lit c Written consent of both parties givesproof of agreement Incl letters, e-mail (Art 23 (2)) Gen. Cond.: Prior knowledge necessary Agreement neccessary one-sided confirmation evidence of prior agreement Arising out of earlier relationship Example: Gen. Cond. in transport paper International Trade Widely known/regularly observed in this type of trade Both parties aware/ought to be aware J Agreements (Art 23) / form TR 2007

  29. Trumpy delivered goods to Casteletti on board a vessel; both Italian companies Accident while unloading  Castelletti sued Trumpy in an Italian court for damages Bill of lading, general cond. on reverse side: disputes should be decided by HCJ London Front side containing reference to the clauses on the reverse side signature of the shipper below the reference Art 22 (1) lit a (-) Signature below reference consent, expressed by signature does not include terms on back side Art 22 (1) lit c The aim of the provision is to ensure that there was real consent consent can be presumed where commercial usage exist and the parties are or ought to have been aware of it The existence of a usage must be determined in relation to the branch in which the parties operate. Such usage is established where a particular course of conduct is generally and regularly followed by parties operating in that branch when concluding contracts of a particular type. It need not necessarily be established in specific countries or (in all) Member States. No specific form of publicity Case: Castelletti v Trumpy Rs C-159/97(choice of Jurisdiction) TR 2007

  30. Meaning of Consumer Cont Art 15 (1) Material scope of applicationArt 15 (1) lit a lit b lit c Territorial scope of application Preference over all other Js Exception: Art 5 (5) applies; only if other party domiciled in a Member State with branch in other M.S. Consumer v. Business? Type of contract Sale of goods on installments Any contract to finance sale of goods Pursuing commercial or professional activity in Member State of consumer‘s domicile (Including fake sweepstake winning notifications) Art 4 applies, Art 15 ss only if other party domiciled in Member State Exception: Art 15 (2): agency in Member State sufficient Consumer Contracts (Art 15-17) / Scope TR 2007

  31. Consumer as plaintiff Art 16 Î Consumer as DefendantArt 16 II Agreements on JurisdictionArt 17 Courts in the state of consumer‘s or other party‘s domicile If agency: Art 5 No 5: Courts in the state of agency‘s domicile Only courts of M.S. of consumer‘s domicile Counterclaim remains possible Art 17 takes preference over Art 23 Agreement after dispute arises In favor of the customer Conferring J to the courts of the M.S. where both parties habitual resident when entering into the agreement Consumer Contracts (Art 15-17) / Jurisdiction TR 2007

  32. Gabriel (domiciled in A) received personalized letter from a German company at his private address in a sealed envelope made him believe, that he won ATS 49.700 he would receive it simply on demand if he would order goods for ATS 200 Wants to bring an action in Austria P: Art 15 (1) lit c: Contract consumer entered into contract particularly with regard to promise of financial benefit his interest in such benefit is significantly greater than in the goods ordered Consumer met all conditions by entirely accepting the proposal price considered as part of the contract All other conditions (+) Art 15 special rule over Art 5 Case: Rudolf Gabriel Rs C-96/00(price combined with order for goods) TR 2007

  33. Insurance matters defined Jurisdiction Art 9, 10, 11 Art 12, 11 III Art 13 Matters related to Insurance (Art 8–14) • Action between insurer and insured (policyholder) • Not applicable to re-insurer/re-insurer-cases • Applies also to claims of victim against insurer under direct action (accident) • Similar concept as in consumer cases: • Against insurer • also at plaintiff‘s domicile; additional rules for liability and real property insurance • Action against insured • only in Member State of domicile, counterclaim or joint parties in liability cases • Restriction of Jurisdiction Agreement TR 2007

  34. Employment contract defined Jurisdiction Art 19 Art 20 Art 21 Dependent employment in a broad meaning Not including self-employed Not including collective labor law Action against employer at His domicile (Art 19 No 1) Habitual place of work (Art 19 No 2 lit a), if none place of business which engaged the employee (Art 19 No 2 lit b) Employer with branch in Member State presumed to be domiciled there (Art 18 (2) Action against employee Only in Member State of domicile or counterclaim Jurisdiction agreements only if entered into after dispute started, or in favor of employee Individual Contracts of Employment (Art 18-21) TR 2007

  35. Exclusive J of other court Own Jurisdiction Court declares on its own motion that it has no J (Art 25) Exception: Priority prevails if both courts have exclusive J (Art 29) No examination if defendant enters an appearance (Art 26 (1) due to Art 24) If defendant does not enter an app:Examination ex officio: Stay of the proceeding until proof of service (Art 26 (2)-(4)) Art 19 EC Reg on service (Art 26 (3) Art 15 Hague Conv on service (Art 26 (4) Examination as to Jurisdiction (Art 25, 26) TR 2007

  36. Provisional measuresdefined Jurisdiction Art 31 Only if within the reg‘s material scope of application Including measures for preliminary performance, if restitution secured Not including measures for discovery as to the merits Either under the rules of Brussels I-Reg Or under the rules of the lex fori even if the courts of another Member State have jurisdiction as to the substance Provisional & protective measures (Art 31) TR 2007

  37. Same cause of action (Art 27) ConsequencesArt 27 (1)Art 27 (2) When court seised (Art 30) Identity as to the central problem of the action Even if not same cause of action in lex fori Only action, not the defenses relevant Same parties Stay of proc. in court 2nd seised Declines J if J of court 1st seised has been established Writ of action lodged with the courtif plaintiff takes all subsequent steps Lis pendens (Art 27) TR 2007

  38. Gubisch Maschinenfabrik KG (registered office in D) and Palumbo (a resident of I) are disputing the validity of a contract Gubisch brought an action for specific performance in the Landgericht Flensburg Later Palumbo brought an action to declare the contract void in the Tribunale di Roma Jurisdiction of TdRoma? Art 27 (1) Same cause of action Autonomous interpret. positive action for performance of a contractual obligation = negative action for rescission or discharge of the same contract Moment the court is seised ECJ referred to litispendency in national lex fori (under Br I Convention) Brussel I-reg: Art 30 Autonomous European definition of litispendency Case: Gubisch v Palumbo Rs 144/86(same cause of action) TR 2007

  39. Related Actions(Art 28) Consequences Art 28 (1) Art 28 (2) If decision in different court could lead to a Art 34 (3)-type situation Same cause of action not necessary Same parties not necessary Court 2nd seised may stay proceedg May also decline jurisdiction Related proceedings (Art 28) No concept other than lis pendens and related proceedings to solve concurring jurisdiction no injunction under national law of civ.proc. TR 2007

  40. JudgmentArt 32 RecognitionArt 33 (2), (3) Recognition as Rule Art 33 (1) Impediments to Recognition Decision as to the merits Not: procedural decisions No particular proceeding (incidenter) Application for formal decision admissible No révision au fond (Art 36) No examination of conflict law (Art 36) No examination of jurisdcn (Art 35 (3) Art 34 (next slide) Conflict with certain J rules Art 35 (1) Consumer, Insurance, Exclusive Not contract for employment Recognition of Judgments TR 2007

  41. Public policy No 1 Service of Action No 2 Irreconcilability No 3 Nr 4 Material or procedural Only if manifestly contrary to p.p. Service not timely (for defense) Formal mistakes relevant only if related to preparation of defense No appearance Exception: Challenge of judgment in Member State of origin Conflicting issues between same parties Judgment from M.S. of recognition prevails J from other M.S. or third state prevails only if earlier Impediments against recognition (Art 34) TR 2007

  42. Lancray SA (French company) bringing an action against Peters und Sickert KG (German company) in France Summons were served timely but only in French language Peters did not appear at the hearing Court granted Lancray a default judgment Lancray seeks enforcement in Germany Art 27 No 2 BI-Conv: two prerequisites Service duly in time Service duly effected Both necessary  recognition to be refused if service has not been done in due form BI-Conv does not govern service  service is part of the proceeding before the court giving the judgment  service must be according to that law, including International Convention (Hague) Cure of defective service only according to that law Case: Lancray v Peters C-305/88(service duly effected) • Art 34 No 2 BI-reg: • two prerequisites • Service duly in time • In a way, which enables to arrange for defense • not all formalities of service have to be met • autonomous minimum standard • if service not duly effected, it must be determined whether defendant could arrange for his defense • cure of defective service no longer relevant • Defendant obliged to appeal against the judgment  otherwise loosing objection against recognition TR 2007

  43. Subject „Exequatur“ Prerequisites Appeal Judgment (Art 38) Authentic instruments (Art 57) Only from Member States No „automatic“ enforcement Declaration of enforceability, application necessary (Art 38 (1) Enforceability in State of origin Only formal documentation in 1st instance (Art 53-56) Recognition not to be examined May be brought: Art 43/Annex 3 May be based on grounds for non-recognition only (Art 45 (1)) Enforcement (System only) TR 2011

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