Presentation on theme: "The Brussels I Regulation Jurisdiction in matters of insurance, consumers contracts and individual contracts of employment."— Presentation transcript:
The Brussels I Regulation Jurisdiction in matters of insurance, consumers contracts and individual contracts of employment
The Brussels I Regulation Jurisdiction in chosen matters The articles 8-21 of the Regulation set down special rules for jurisdiction in chosen matters – insurance, consumer contracts and individual contracts of employment. The reason for such provisions – protection of the typically weaker party.
The Brussels I Regulation Jurisdiction in the matters relating to insurance Articles 8-14 of the Regulation. The weaker party shall be either the policyholder, either the insured person or the one who benefits from the insurance contracts (beneficiary). The Regulation does not specify the notion insurance – shall be interpreted autonomously- insurance contracts in civil and commercial matters (insurance of health, life, property or liability). Public law insurance is excluded ( e.g. public health insurance). The insurance contracts may be concluded voluntarily or compulsory.
The Brussels I Regulation Jurisdiction in the matters relating to insurance The basic rule for determination of the jurisdiction in these matters – article 9 of the Regulation: The insurer domiciled in a member state my be sued: a) In the courts of a Member state where he is domiciled, or b) In another Member state, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled, c) If he is a co-insurer, in the courts of the Member state in which proceedings are brought against the leading insurer.
The Brussels I Regulation Jurisdiction in the matters relating to insurance In article 10 other possibility in respect of liability insurance or immovable property insurance – in addition the insurer may be sued there, where the harmful event occurred. In the matters of liability insurance may be, if the national law permits so, sued in court, where an action of the injured party against the insured was brought. The Insurer may sue only in courts determined by the basic rule (where the defendant is domiciled).
The Brussels I Regulation Jurisdiction in the matters relating to insurance – prorogation agreement The prorogation agreement according to conditions set by the article 23 is not allowed contrary the provisions of the section, but according to article 13 there may be concluded the prorogation agreement: a) Which is entered after the dispute arisen, b) Which gives the right to change the courts to weaker party, c) Which confirms the jurisdiction of the courts of the member state where both parties (insurer and policyholder) are domiciled, d) Which is concluded with a policyholder not domiciled in a Member state, unless it is the matter of compulsory insurance or it relates to immovable property. e) If it covers some special risks (article 14).
The Brussels I Regulation Jurisdiction over consumer contracts Articles 15-17 of the Regulation The weaker party – the consumer. The contracts for a purpose which can be regarded as being outside of his trade or profession. Covers: a) Contracts for the sale of goods on instalment credit terms. b) Contracts for a loan repayable by instalments or for any other form of credit, made to finance the sale of goods. c) In all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.
The Brussels I Regulation Jurisdiction over consumer contracts According to article 15 para 1 letter a – sale of goods on instalment credit: ECJ Case 150/77 Bertrand v. Paul Ott German company concluded sales agreement with French company. The price should have been paid in two instalments. The French company did not paid the first – the German company initiated proceedings in Germany. The question – are two instalments sufficient to take the contract as sale on instalment credit? And when two companies conclude sales agreement – is one of them weaker (consumer)?
The Brussels I Regulation Jurisdiction over consumer contracts The regulation of the consumer contracts is not satisfactory – article 15 para 1 letter c) – is focussed only on passive consumer – the one who buys only in the Member state, where he is domiciled. Does not apply to contracts of transport, unless they are combined with accommodation.
The Brussels I Regulation Jurisdiction over consumer contracts The basic rule of the jurisdiction – article 16. A consumer may bring proceedings against the other party to a contract either in courts of the Member state in which that party is domiciled of in the courts for the place where consumer is domiciled. The consumer may be sued only in the place, where he is domiciled.
The Brussels I Regulation Jurisdiction over consumer contracts – prorogation agreement The application of the article 23 contrary the provisions of this section is not allowed, however the article 17 allows prorogation agreement over consumer contracts, if: a) It is entered after the dispute, b) It allows to chose the court to the consumer, c) It confirms the jurisdiction of courts of Member state, where both contract parties are domiciled.
The Brussels I Regulation Jurisdiction over consumer contracts A lot of decisions of EC courts in this matter, e.g.: C-464/01 Johann Gruber v. Bay Wa AG Mister Gruber (Austrian citizen) was running a business in his farm, his business took 40 % of the activities concerning the functioning of the farm, 60 % of them were private. He ordered roof tiles from German company and just said he is a entrepreneur, but did not specified he needs the roof tiles as a private consumer or as entrepreneur. The tiles had defects and he wanted to sue in Austria according to article 16 of the Regulation. ECJ – if a person can be considered as entrepreneur and consumer according to one contract, he should be considered as the entrepreneur unless the business purpose is insignificant (trivial).
The Brussels I Regulation Jurisdiction over consumer contracts Bingo decisions 1) Decision Gabriel C 96/00 – Mister Gabriel in Austria got letters from company Schlank&Schick in Germany – he was winner of amount of 3500 Euro, the claim was subordinate to order of goods of minimum value 15 Euro, he ordered the goods, he got the goods but not the promised price. 2) Decision Engler v. Janus Verand GmbH C 27/02 – Missis Engler from Austria received payment notice, according to which she was entitled to a price, she only had to turn it back. She sent it back, did not get any money.
The Brussels I Regulation Jurisdiction over individual contracts of employment Articles 18-21. The weaker party is employee. The employer may be sued: a) In the courts of the Member state where he is domiciled b) In another Member state: 1. In the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so, or 2. If the employee does not or did not habitually carry out his work in any one country, in the courts for the place, where the business which engaged the employee is or was situated. The employee may be sued only in courts in the Member state where he is domiciled.
The Brussels I Regulation Jurisdiction over individual contracts of employment – prorogation agreement The application of the article 23 contrary the provisions of this section is not allowed, however the article 21 allows prorogation agreement individual contracts of employment, if: a) It is entered after the dispute has arisen, b) It allows the employee to chose the courts.
Brussels I Regulation Jurisdiction over individual contracts of employment Decision Petrus Rutten v. Cross Medical Ltd. C 383/95 Mister Rutten was an employee of Cross Medical Ltd. (UK) – he exercised his work in Netherlands and in other countries. After he terminated the work for the company he sued the company in Amsterdam. The question – how to determine the place of work? The place which is the real centre of his work activities.
Brussels I Regulation Jurisdiction over individual contracts of employment Where, in the performance of a contract of employment, an employee carries out his work in several Contracting States, the place where he habitually carries out his work, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States in which he has an office where he organizes his activities for his employer and to which he returns after each business trip abroad.
Brussels I Regulation Jurisdiction over individual contracts of employment 437/00 - Giulia Pugliese v Finmeccanica SpA, Betriebsteil Alenia Aerospazio – two employers. In a dispute between an employee and a first employer, the place where the employee performs his obligations to a second employer can be regarded as the place where he habitually carries out his work when the first employer, with respect to whom the employee ' s contractual obligations are suspended, has, at the time of the conclusion of the second contract of employment, an interest in the performance of the service by the employee to the second employer. The existence of such an interest must be determined on a comprehensive basis, taking into consideration all the circumstances of the case.
The Brussels I Regulation The recognition and enforcement of judgments
The Brussels I Regulation The enforcement and recognition of judgments Two systems of enforcement of a judgement of one Member state in another Member state: 1. The Brussels I Regulation 2. The EEO Regulation (European enforcement order for uncontested claims)
The Brussels I Regulation The enforcement and recognition of judgments Simpler rules than the rules about the jurisdiction. Chapter III of the Regulation – articles 33- 56. Basic aim – free movement of judgments Interpretation – Court of justice
The Brussels I Regulation The enforcement and recognition of judgments The procedure of recognition and enforcement – 3 phases: 1. Recognition 2. Declaration of enforceability of judgment 3. Enforcement of judgment The notion judgment (article 32 of the Regulation): any judgment given by a court or tribunal of a Member state, whatever the judgment may be called
The Brussels I Regulation The recognition of judgments The principle of automatic recognition of judgments – no special procedure, no special decision is required. No review of the substance of the judgment is allowed. However, In article 34 and 35 the reasons for which recognition of decision can be declined.
The Brussels I Regulation The recognition of judgments The reasons for declination of recognition: a) The decision is manifestly contrary to public policy – restrictive interpretation – the differences of national legal regulation is not sufficient. Decision Krombach v. Bamberski – C 7/98, the contrast has to be of such level that the decision breaches the basic principles of the legal order of the Member state. b) Default of appearance, unless the defendant did not use the opportunity to challenge the decision when he could, c) Two irreconcilable decisions between the same parties in both Member states d) Irreconcilable decisions between the same parties on the same case of third Member state or third state, the earlier shall be recognised in the Member state, where recognition is sought.
The Brussels I Regulation The recognition of judgments In article 35 – the recognition may be declined – if there is conflict with provisions of the Regulation concerning exclusive jurisdiction or jurisdiction in chosen matters (art. 8-21) The legal force of the decision is not condition of the recognition – article 37, if there is an ordinary appeal against the decision – the procedure of recognition may be stayed.
The Brussels I Regulation The enforcement of judgments Article 38 of the Regulation – a judgment of one Member state may be enforced in another Member state after it has been declared enforceable (exequatur proceeding). Application for the declaration of enforceability is required. Application shall be submitted to courts in Annex II of the Regulation.
The Brussels I Regulation The enforcement of judgments Strictly formal procedure: If the conditions required (copy of decision + certificate according to articles 54-58) are fulfilled, the court issues decision of enforceability immediately without any review. The defendant does not know about the application in that phase, the delivered decision is serviced to him (then only he acquires information about the procedure).
The Brussels I Regulation The enforcement of judgments Against the decision about enforceability – an appeal is permissible –to the courts in Annex III The term is one month (if the defendant is domiciled in other member state, than where the decision was issued – two months). Against the decision of appeal – a remedy is permissible – regulated by national law – annex IV.
The Brussels I Regulation The enforcement of judgments The enforcement of the judgment which has be declared enforceable – regulated by the national law of the state. The application for the enforcement can be raised together with the application for the declaration of the enforceability. However, according to the possibility of raising an appeal – the decision allowing the enforcement can not come into legal force earlier than the decision about the enforceability.