1 Jurisdiction, Recognition and Enforcement of Civil Judgments under EU LawRegulation 1215 of 2012 „Brussels Ia-Regulation“ Prof Dr Thomas Rauscher TR 2015

2 Study Materials EU-material ECJ-decisionsText and collected materials EC-reg about civil procedural law Study book Commentary Rauscher, IPR3, 2009, published: C.F.Müller, Heidelberg Rauscher, EuZPR/EuIPR, 2015/16, published: Otto Schmidt TR 2015

3 Interpretation of EU-Reg on Civil Procedure by ECJSources & methods of interpretation ECJ-decisions on Brussels I Convention 1968 Brussels I Regulation 44/2001 Autonomous („european“) interpretation or reference to national law see: Art 7 (1) (a),(c) (place of performance) see: Art 62 (domicile) Jurisdiction ECJ deciding on Preliminary rulings under Art 267 (1)(b) TFEU (EC/EU-Reg are EU law) TFEU= Treaty on the Functioning of the EU ECJ= Court of Justice of European Union TR 2015

4 Regulation No 1215/2012 of 12/12/12 Brussels Ia-RegulationAspects covered: Jurisdiction (=international) Litispendency between Member States Recognition of Member State Judgments Enforcement of Member State Judgments Member State: all EU members with the exception of Denmark Agreement on the application of Brussels I-Reg for Denmark, in force since July 1, 2007, may be extended to Brussels Ia (see Recital 41) TR 2015

5 Related Instruments – Territorial ScopeFormer instruments Brussels Convention 1968 - Accession conventions necessary for new EC-members Brussels I-Regulation 2001 - Applicable to any member of the EU participating in Title V TFEU Parallel instruments (of treaty nature) Lugano Convention 1988 - Similar to 3rd Accession convention - EU-Members, EEA-Members and CH Lugano Convention Similar to Brussels I-Regulation - EU-Members, Iceland, Norway, CH TR 2015

6 Brussels Ia Reg / other instruments: RankingArt 68 Brussel Ia-Regulation supersedes Brussels I convention (as did Brussels I-Regulation) Art 66 (next slide) Brussels Ia-Regulation ./. Brussels I-Regulation Art 69, 70 B Ia-Reg supersedes conventions between Member States on the same matter as far as B Ia-Reg applies (material, personal, temporal) Art 71 ss B Ia- Reg does not affect -conventions with third parties concluded before Brussels I-Reg -2007 Lugano Convention (if related to IC, N, CH) TR 2015

7 Temporal scope of application (Art 66)Jurisdiction, Litispendency Proceeding instituted and autentic instruments drawn or registered after 10 January 2015 (Art 66 (1)) „instituted“ = „court seised“ (Art 30) „old“ proceedings continue under Brussels I-Regulation Recognition,Enforcement Judgments given in proceedings … instituted on or after 10 January 2015 (Art 66 (1)) [reason: new type of enforcement] Judgments given in proceedings instituted before: Brussels I-Reg Judgments under Brussels Convention: see Art 66 Brussels I Reg TR 2015

8 Material Scope of Application (Art 1)Autonomous interpretation Nature of court irrelevant (civil action in penal court) Not, if administrative body acting by subordination Not: Revenue and Customs Civil Status, Matrimonial Property (Divorce: Reg 2201/2003 Brussels IIa) Bankruptcy proceedings (Reg 1346/2000) Social Security Arbitration Maintenance (Reg 4/2009) Succession (Reg 650/2012) Art 1 (1): Civil and Commercial Matters Art 1 (2): …shall not apply to… TR 2015

9 Cases (Article 1 (1)) LTU/Eurocontrol [29/76]NOT CIVIL: defendant European agency acting as “superior” Sonntag/Waidmann [C-172/91] CIVIL: criminal court judgment for damages against German teacher (state official) Lechouritou et al/F.R. of Germany [C-292/05) NOT CIVIL: damages for WW2 crimes by Wehrmacht & SS Fahnenbrock et al/Hellenic Republic [C-226/13 etc] CIVIL: compensation for disturbance of ownership of GR government bonds (if not obviously out of scope) TR 2015

10 Cases (Article 1 (2)) De Cavel/De Cavel ONE [143/78]Matrimonial property = Property issues arising out of particular rules which apply to husband and wife only De Cavel/De Cavel TWO [120/79] Consequential matters to be decided with a divorce (= status=not B Ia) case may fall within the scope of B Ia if not excluded by their own type (thence: maintenance) Marc Rich/Società Italiana Impianti [C-190/89] State court proceeding on the nomination of an arbiter is „arbitration“: B Ia NOT applicable Preliminary question of validity of arbitration agreement is NOT „arbitration“ : B Ia applicable TR 2015

11 Personal Scope of Application: JurisdictionArt 5 (1): Defendant domiciled in ANY Member State: Brussels Ia- jurisdictional rules only Art 62: Domicile of natural person defined under national law of respective Member State Art 63: Domicile of company or other legal person Statutory seat OR central admin OR principal place of business Art 6 (1): Defendant NOT domiciled in ANY Member State: National law („lex fori“) applies Art 6 (2): „Exorbitant“ Jurisdictions (see Art 76) apply in favor of any plaintiff domiciled in the forum state without regard to nationality TR 2015

12 Cases (Article 5, 6) Group Josi/ UGIC [C-412/98]Brussels I applies as against defendant domiciled in a Member State even if plaintiff is not domiciled in any Member State and the case is not relied to any other M.S. Owusu/Jackson et al [C-281/02] Brussels I applies and the courts of the defendant‘s domicile do have jurisdiction under Art 4 even if the case is strongly connected to a non-Member State. „Forum non conveniens“ does not apply under Brussels I Fiction According to Art 6(2) a German citizen living in Paris is to be treated as French citizen when bringing action against a US-domiciliary in French courts under Art 14 CC. TR 2015

13 Jurisdictional SystemGeneral J. (Art 4): Domicile of the defendant for all causes of action with the exception of exclusive jurisdictions Special J. (Art 7, 8): May apply to particular causes of action OR particular constellations of the parties involved Exclusive J. (Art 24): Must apply to particular causes of action which involve state interest J. Agreement (Art 25): May be agreed on in the form of Art 25 if not excluded under Art 15, 19, 23 [see: protected persons] May be exclusive or may not according to interpretation Protected persons: Supersede all other jurisdictional rules Art 10 ss: Insurance - Art 17 ss Consumer Art 20 ss Individual contract of employment TR 2015

14 Special Jurisdiction (Art 7)General prerequisite: Defendant domiciled in one, proceeding in another Member State Applies to particular causes of action: to assure „best administration of justice“ (proof, local rules etc) Not mandatory: Plaintiff may choose between Art 7 and Art 4 TR 2015

15 Contract: Place of Performance (Art 7 (1))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. Primary obligation in question Place of Performance: According to the law as applicable under the conflict rules of the forum, or Agreement as to place of performance Sale of goods: place of delivery Except: Services: place of provision of service or where service should have been. One place of performanc for the entire contract Contract cases Art 7 (1) Art 7 (1)(a) If contract not of type (b) or (b) not functioning [see (c)] Art 7 (1) (b) TR 2015

16 Cases (Article 7 (1)) Color Drack GmbH/Lexx Intl Vertriebs GmbH [C-386/05] 7(1)(b)(i)applies if several places of delivery in one Member State. If one capital place of delivery, courts of this place have venue. Otherwise the plaintiff may choose. Electrosteel Europe sa/Edil Centro SpA [C-087/10] 7(1)(b)(i): If merchandise is to be shipped under a contract of sale, the place of performance must be determined according to the terms of the contract including INCOTERMS. Rehder/Air Baltic Corp [C-204/08] 7(1)(b)(ii) applies to airline transportation. Place of performance at the departure and the arrival ports; plaintiff may choose. TR 2015

17 Tort (Art 7 (2)) „Tort“ Definition JurisdictionResponsibility for damages without contract No annex jurisdiction for contract claims Pre-contractual obligation under Art 7 (2) [see also Art 2(1) Rome II-Reg Place where the tort occurred Torts comitted over distance: place of action OR place of primary damage Torts with multiple places of damage (press related, environmental!): Only those damages that occured in the particular jurisdiction Preventive claims („may occur“) included Consumer protection agency‘s preventive claims included TR 2015

18 Cases (Article 7 (2)) Folien Fischer AG&Fofitec AG/RITRAMA SpA [C-133/11] Art 7(2) applies to action for negative ascertainment claiming the non-existence of tortious responsibilty Pinckney/KDG Mediatech AG [C-170/12] Art 7(2) applies in intellectual property case concerning a publication on the www. Court has jurisdiction, if publisher domiciled in another Member State but may decide only on damages that arose in the Member State of the court. Andreas Kainz/Pantherwerke AG [C-45/13] Action for product liability may be brought in the place of production of the damaging product. TR 2015

19 Other Special Jurisdictions (Art 7 (3)-(7))Adhesion (Art 7 (3)) Property of cultural objects (Art 7 (4)) Agency (Art 7 (5)) Trust (Art 7 (6)) Salvage of cargo (Art 7 (7)) Civil damages in Criminal Court if competent; Exception: Art 64: Rights of defense Civil property claim for the recovery of cultural objects as defined under Directive 93/7/EEC 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 TR 2015

20 Several Parties (Art 8) Concept: Several Defendants (Art 8 (1))Intervention Warranty (Art 8 (2)) Counterclaim (Art 8 (3)) Contract claim related to rights in rem (Art 8 (4)) Defendant domiciled in a Member State may be sued as additional defendant First defendant domiciled in M.State of court. Close connection between claims (see Art 30) Warranty, guarantee, third-party proceeding; Not if sole intention to remove defendant from other jurisdiction; Not applicable in A, D & H (Art 65 (1)) Same contract or cause of action ./. Compensation: Means of defense, no jurisdiction necessary Personal action may be brought in jurisdiction for related real property action TR 2015

21 Cases (Article 8) Freeport plc/Olle Arnoldsson [C-098/06]Art 8 (1) applies even if the claims against different defendants arise out of different causes of action … if those actions are to be decided together in order to avoid conflicting decisions Glaxosmithkline/Rouard [C-462/06] Art 8 (1) does not apply to controversies concerning individual labour contracts as Chapter II Sec 5 prevails Land Berlin/Sapir & oth [C-645/11] Close connection under Art 8 (1) is given for action against several defendants in different Member States who are claiming reparation. Art 8 (1) does not apply against defendants NOT domiciled in any Member State. TR 2015

22 Exclusive Jurisdiction (Art 24)Why exclusive Jurisdiction? Consequences: Public interest involved Applies regardless of domicile – even if defendant is not domiciled in any Member State Applies if and only if relevant criteria are situated in a Member States No valid prorogation against exclusive jurisdiction No entering an appearance against exclusive jurisdiction. TR 2015

23 Exclusive Jur. for immovable property (Art 24 (1))Rights in rem Tenancies „Holiday Flats“ exception Immovables defined by lex situs Immovable property rights: against everybody; no personal claims Tenancies: right of use against payment (autonomous definition) Private tenancies, not to exceed 6 months Both parties domiciled in same Member State additional exclusive jurisdiction of the courts of both parties‘ domicile TR 2015

24 Cases (Article 24) Apostolides/Orams&Orams [C-420/07]Under Art 24 (1) Republic of Cyprus‘ courts do have jurisdiction even if the property concerned is situated in that part of the country over which the R of Cyprus authorities presently do not exercise effective control Weber/Weber [C-438/12] Art 24 (1) applies to an action concerning a right of pre-emption if such right is actionable against everyone Berliner Verkehrsbetriebe/JP Morgan [C-144/10] Art 24 (2) does not apply if a corporation objects against a contractual claim saying that the corporate decision permitting the signing of such contract was invalid TR 2015

25 Prorogation of Jurisdiction (Art 25) [Application]Material Scope Territorial Scope Temporal scope Effect Admissibility, parties, form, general condit. Independent of other terms of contract (5) Regardless of the parties‘ domicile A court or the courts of a Member State Not applicable in mere national cases Art 66 (1) Agreements entered into since 10 January 2015 Art 66 (2) B I-Reg continues to apply to agreements entered into before Before B I-Reg: No invalidity if agreement was valid under former rules Exclusive Jurisdiction unless agreed otherwise (Art 25 (1)) TR 2015

26 Prorogation of Jurisdiction (Art 25) [Form]In Writing Art 25 (1) (a)/1 Evidenced in Writing Art 25 (1) (a)/2 Individual Practice Art 23 (1) (b) Usage in intl Trade Art 23 (1) (c) Written consent of both parties gives proof of agreement Including letter, telefax, (Art 25 (2)) General condit.: Prior knowledge necessary Agreement neccessary one-sided confirmation sufficient if it gives evidence of prior agreement Arising out of earlier relationship General conditions in delivery notes International Trade Widely known/regularly observed in this type of trade Both parties aware of/ought to be aware of TR 2015

27 Cases (Prorogation) Powell Duffryn/Petereit [C-214/89]A prorogation clause in the statute of a corporation is valid if it has been been duly registered and applies against shareholders without regard to time they acquire their shares. Refcomp SpA/Axa Assurance SA & anoth. [C-543/10] A prorogation clause in a contract between the producer and the first purchaser of a product is not binding on a further purchaser unless there is proof of consent of such further purchaser. Jaouad El Majdoub/CarsOnTheWeb.Deutschland.GmbH [C-322/14] A prorogation clause in general conditions attached to an electronic contract by „click wrapping“ is valid if it can be downloaded and saved OR printed. TR 2015

28 Entering an Appearance (Art 26)Prerequisites: Defendant answers the action not only to contest jurisdiction Answering the action after contesting jurisdiction is permitted in order to avoid being prevented from defense Consequence: The court apart from jurisdiction derived from other provisions acquires jurisdiction Not applicable if: Exclusive jurisdiction of another court Consumer, insurance, individual labor contract: Art 26 applies only after due information (Art 26 (2)) TR 2015

29 Consumer Contract (Art 17) [Application]Consumer Contract defined Art 17 (1) Scope of application Contract outside the consumers trade or profession B 2 C only Applies only to particular types - Sale of goods on instalments - Loan or credit on instalments to finance a sale - With Business pursuing OR directing activity in or to the Member State of consumer‘s domicile (www-cases!) Art 6: Defendant domiciled in M. S. Art 17 (2): Applies if contract arising out of business of branch etc in a M.S. Art 7 (5) applies: J in courts of the branch Art 17 (3): Not applicable to contract of transport, applicable to “travel contract” TR 2015

30 Consumer Contract (Art 18, 19) [Jurisdiction]Consumer as plaintiff Art 18 (1) Consumer as defendant Art 18 (2) Prorogation of Jurisdiction Art 19 Courts of the Member State of consumer‘s domicile or other party‘s domicile AND Art 7 (5): Courts of the Member State of the branch’s/agency‘s domicile Only courts of M.S. of consumer‘s domicile Counterclaims not affected (Art 18 (3)) Art 19 takes preference over Art 25 - Agreement after dispute arises - In favor of the customer - Conferring jurisdiction to the courts of the Member State where both parties are habitually resident when entering into the agreement Formal requirements according to Art 25 TR 2015

31 Cases (Consumer) Pammer/Schlüter _ Hotel Alpenhof/Heller [C-585/08_C-144/09] A business „directs activity“ to the state of the consumer‘s domicile under Art 17(1)(c) if from its web-site and the entire course of dealing results that such business had the intention to enter into contracts with consumers domiciled - inter alia – in this Member State. All relevant criteria need to be taken into consideration. Lokman Emrek/Vlado Sabranovic [C-218/12] Art 17 (1)(c) applies even if the busines‘s web-site which was directed to the consumer‘s domicile was not relevant for the contract in action. Harald Kolassa/Barclays Bank [C-375/13] Art 17 (1) does not apply to an action brought by a consumer against a bank issuing bonds the consumer bought elsewhere, if there is no contract with the bank. TR 2015

32 Matters related to Insurance (Art 10-16)Insurance matters defined (Art 10) Jurisdiction Art 11, 14, 15 Art 12, 13, 16 Action between insurer and insured, beneficiary or policyholder Not applicable to re-insurer/re-insurer-cases Applies also to claims of victim bringing direct action against liability insurer (Art 13 (2)) Against insurer: - domicile of the insurer domicile of the claimant (plaintiff) domicile of a branch (Art 11 (2) + 7 (5)) Against insured person etc: - Domicile of the defendant (Art 14 (1)) - Counterclaim not affected (Art 14 (2)) Prorogation only in certain situations (Art 15) Additional rules for liability, immovables, „great risk“ TR 2015

33 Cases (Insurance) FBTO Schadeverzekeringen NV/Odenbreit [C-463/06]Under Articles 13 (2) and 11 (2) the victim of an accident may bring direct action against the other party‘s liabilty insurer in the courts of the plaintiff‘s domicile if such direct action applies [see Art 18 Rome II-Reg] and the insurer is domiciled in another Member State. Vorarlberger Gebietskrankenkasse/WGV AG [C-347/08] Under Articles 13 (2) and 11 (1)(b) a social insurance company may not bring an action against the tortfeasor‘s liability insurance domiciled in another Member State even if such action is based on the victim‘s original claim for damages which was ceded by operation of law to the social insurance company. TR 2015

34 Individual Contracts of Employment (Art 20-23)Employment contract defined Jurisdiction Art 21 Art 22 Art 23 Dependent employment in a broad sense Not including self-employment Not including collective labor law Action ction against employer in the courts of - his domicile (Art 21 (a)) - the habitual place of work (Art 21 (b)(i)) - if none, the place of the business which engaged the employee (Art 21 (b)(ii)) Employer with branch in Member State presumed to be domiciled there (Art 21 (2)) Action against employee - Member State of the domicile (Art 22(1)) counterclaim not affected (Art 22(2)) Jurisdiction Agreements only if entered into after dispute arose, or in favor of employee TR 2015

35 Cases (Employment contract)Petrus W Rutten/Cross Medical Ltd [C-383/95] If an employee carries out his work in more than one Member State, the place where he habitually carries out his work is defined as the place which the employee made the actual center of his professional work. The time he spends in his office and the fact that he regularly returns there after business trips is taken into consideration. Ahmed Mahamdia/DPR of Algeria [C-154/11] An embassy of a Non-Member-State situated in a Member State is considered a „branch“ for the purpose of a labour contract concluded by this embassy in the name of such Non-Member-State, if the employee‘s functions are not related to sovereignty. TR 2015

36 Examination as to Jurisdiction (Art 27, 28)Exclusive Jurisdiction of courts in other Member State Jurisdiction of the court itself Court declares on its own motion that it has no jurisdiction (Art 27) Exception: Priority prevails if both courts have exclusive jurisdiction (Art 31) No examination if defendant enters an appearance (Art 26 (1)) If defendant does not enter an apperance [either not present or contesting] -Examination of jurisdiction by the court ex officio (Art 28 (1)): If defendant not present & court has jurisd. Stay of the proceeding until proof of service (Art 28 (2)-(4)) - Art 19 EC Reg on service (Art 28 (3)) - Art 15 Hague Conv on service (Art 28 (4)) TR 2015

37 Provisional & Protective Measures (Art 35)Provisional measures defined Jurisdiction (Art 35) Only if within the material scope of application of B Ia-Reg Including measures for preliminary performance, if restitution secured Not including measures for discovery Either under the rules of B Ia-Reg Or under the rules of the lex fori even if the courts of another Member State have jurisdiction as to the substance TR 2015

38 Lis pendens (Art 29, 33) Same cause of action in other Member State (Art 29) …then … Definition „court seised“: Art 32 Same cause of action in Non-Member State …then… Identity as to the central point of the action - same cause of action not required - only claim, not a defense is relevant Same parties Stay of proceeding in court 2nd seised Declines jurisdiction if juridiction of court 1st seised has been established Writ of action lodged with the court if plaintiff takes all subsequent steps AND - jurisdiction based on Art 4, 7, 8, 9 - recognition expected (Art 33 (1)(a)) - discretion (Art 33 (1)(b)) Court MAY stay proceeding and may continue any time TR 2015

39 Related actions (Art 30, 34) Related Actions in other Member State (Art 30) …then… Related action in Non-Member State (Art 34) If decision in other court could lead to a Art 45 (c) -type situation (irreconcilability) - Same cause of action not necessary - Same parties not necessary Court 2nd seised may stay proceeding May also decline jurisdiction, if other court has jurisdiction and action is pending there in first instance AND - expedient to hear both actions together - recognition expected - discretion Court MAY stay the proceeding, may continue any time, may dismiss if judgment in other court given and can be recognised TR 2015

40 Cases (Lis pendens and related actions)Gubisch/Palumbo [144/86] Art 29 applies if one party brought an action for negative ascertainment of the validity or the voiding of a contract and the other party later brings action for the performance of the same contract [„Torpedo-actions“]. Overseas Union/New Hampshire Insurance [351/89] Art 29 does not require domicile of a party in a Member State and applies even if jurisdiction is based on Article 6. Cartier parfums SAS & anoth/Ziegler France SA [C-1/13] The jurisdiction of the court first seised is „established“ for the purpose of Art 29 (2) if that court did not decline jurisdiction of its own motion and no party did contest jurisdiction together with the first statement of defense in that proceeding. TR 2015

41 Recognition of Judgments proceeding started before 10 Jan 2015Judgment Art 32 B I-Reg Recognition Art 33 (2), (3) B I-Reg Recognition as the principle Art 33 (1) B I-Reg Impediments to Recognition Decision as to the merits Not applicable to procedural decisions No particular proceeding (incidenter) Application for formal decision admissible No revision to the merits (Art 36 B I-Reg) No examination of conflict law (Art 36 B I-R) No examination of jurisdiction (Art 35 (3) B I-R) Art 34 B I-Reg (next slide) Conflict with certain jurisdictional rules (Art 35 (1) B I-Reg) - Consumer, Insurance, Exclusive - Not: contract for employment TR 2015

42 Impediments against recognition (Art 34 B I-Reg)Public policy Art 34 (1) Service of Action Art 34 (2) Irreconcilability Art 34 (3) Art 34 (4) Material or procedural Only if manifestly contrary to public pol. Service not timely (for defense) Formal mistakes relevant only if related to preparation of defense No appearance Challenge of judgment in Member State of origin necessary Conflicting issues between same parties Judgment from Member State where recognition is sought prevails Judgment from other Member State or third state prevails only if earlier TR 2015

43 Enforcement (Proceeding started before 10 Jan 2015)Applies to: „Exequatur“ required Prerequisites Appeal Judgment (Art 38 B I-Reg) Authentic instruments (Art 57 B I-Reg) Only from Member States No „automatic“ enforcement Declaration of enforceability, application necessary (Art 38 (1) B I-Reg) Enforceability in state of origin Only formal documentation in 1st instance (Art B I-Reg) Recognition not to be examined May be brought (Art 43 B I-Reg) May be based on grounds for non-recognition only (Art 45 (1) B I-Reg) TR 2015

44 Cases (Articles 32-34 B I-Reg)Gothaer Allgemeine Versicherungs AG/Samskip GmbH [C-456/11] Art 32 B I-Reg applies to a decision declining jurisdiction with respect to a prorogation agreement. Under Art 33 B I-Reg the courts of other Member States are bound by the ascertainment of the invalidity of such proprogation. Diageo Brands BV/Simiramida-04 EOOD [C-681/13] Art 34 (1) B I-Reg does not prevent recognition if the decision is in conflict with EU-law if there is no obvious breach of either EU-law or principles of national law in the Member State where recognition is sought. ASML Netherlands BV/Semiconductor Ind Serv GmbH [C-283/05] In the sense of Art 34 (2) B I-Reg the defendant had a „possibility“ to challenge a default judgment only if he had actual knowledge under a timely service of this judgment. TR 2015

45 Enforcement (and Recognition) under B IaRecognition - unchanged principles (Art 36 – 38) - impediments to recognition now become grounds for refusal of recognition (Art 45) Enforcement - NO Exequatur required (Art 39-44) - enforceable in any Member State (Art 39) - formal documentation required (Art 42) - procedure of enforcement still under the laws of the Member State adressed (Art 41) Refusal of rec & enf - all grounds for non-recognition (Art 34 (Art 45, 46) B I-Reg prevail under Art 45 B Ia-Reg) - only proceeding changes: - application for refusal of rec/nition (Art 45) - application for refusal of enf/ment (Art 46) TR 2015

46 Thank you for your kind attendance!Prof Dr Thomas Rauscher TR 2015