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

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Presentation on theme: "Jurisdiction, Recognition and Enforcement of Judgments under EC Law Prof Dr Thomas Rauscher Brussels I-Regulation TR 2007."— Presentation transcript:

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

2 Study Materials (partly in German only) EU-materials EU-materials ECJ-decisions ECJ-decisions Text and collected materials EC-reg about civil procedural law Text and collected materials EC-reg about civil procedural law -Brussels I-reg -Brussels I-reg -EnforcementOrder-reg -EnforcementOrder-reg Synopsis Brussels Conv // Reg Synopsis Brussels Conv // Reg ECJ-decisions on Brussels Conv/Reg ECJ-decisions on Brussels Conv/Reg Study book Study book Commentary Commentary EU-documents (procedure, civil law, commercial law) Brussels I-synopsis ECJ decisions Rauscher, IPR 3, 2009, C.F.Müller, Heidelberg Rauscher, EuZPR/EuIPR, 2011, Sellier ELP, München

3 Interpretation of EC-Reg on Civil Proc by ECJ Jurisdiction Preliminary rulings under Art 267 lit b TFEU as EC/EU-Reg are EU law TFEU= Treaty on the Functioning of the EU Preliminary rulings under Art 267 lit b TFEU as EC/EU-Reg are EU law TFEU= 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 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 considered ECJ=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) TR 2007

4 Reg Nr 44/2001 of 12/22/2000: „Brussels I-Reg“ Aspects covered: Aspects covered: Jurisdiction (intl) Jurisdiction (intl) Lis pendens between Member States Lis pendens between Member States Recognition of Member State Judgments Recognition of Member State Judgments Enforcement 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 TR 2007

5 Members: Brussels I C & R / Lugano TR Brussels Convention st Access Convention nd Access Convention 1988 Lugano Convention rd Access Convention th Access Convention 1990 Lugano Extension now Lugano 2007 Brussel I-reg

6 Temporal scope of application (Art 66) General Rule: Art 66 (1): 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 TR 2007

7 Case: fictitious (temporal scope of application) A German resident caused a traffic accident with a Hungarian resident in Budapest in June 2003 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 The Hungarian brought an action for damages to the Budapest court in November 2003 … receiving a judgment in He wants to enforce it in Germany … receiving a judgment in He wants to enforce it in Germany TR 2007 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)) (+)

8 Brussels I Reg and Conventions Regulation supersedes Brussels Convention (except for territories excluded from the scope of application of EUT) – Art 68 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 TR 2007

9 Material Scope of Application (Art 1) Art 1 (1): 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 TR 2007

10 Case: Sonntag v Waidmann Rs C-172/91 (autonomous interpretation of civil matters) 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 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 Coverage provided under a social insurance scheme governed by public law Action pending in a criminal court Action pending in a criminal court TR 2007 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

11 Case: de Cavel v de Cavel (2) Rs 120/79 (civil matter – maintenance) Divorce proceeding between spouses deCavel Divorce proceeding between spouses deCavel In this proceeding the French court awarded maintenance to one party payable in monthly installments In this proceeding the French court awarded maintenance to one party payable in monthly installments Enforcement sought in Germany Enforcement sought in Germany TR 2007 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 MAINTENANCE: Jur isdiction & Recognition from June 18,2011 under Regulation no 4/2009

12 Personal Scope of Application (Jurisdiction Rules) Art 3 Art 3 Art 4 (1) Art 4 (2) Art 4 (1) Art 4 (2) Art 5, 22, 23 Art 5, 22, 23 Domicile defined: Domicile defined: Art 59 Art 59 Art 60 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 TR 2007

13 Case: ficticious (determination of the domicile) Plaintiff residing in Hungary Plaintiff residing in Hungary Rented a holiday flat situated in Switzerland to a resident of Russia, who has a secondary residence in Germany 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 Plaintiff brings an action for payment in a Hungarian court Alt: The action is brought in a Swiss court Alt: The action is brought in a Swiss court TR 2007 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 (+)

14 Jurisdictional System (J=Jurisdiction) General J (Art 2) General J (Art 2) Particular J (Art 5-7) Particular J (Art 5-7) Exclusive J (Art 22) Exclusive J (Art 22) J Agreement (Art 23, 24) J Agreement (Art 23, 24) Protective Js Protective Js Art 8-14 Art 8-14 Art Art Art Art 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 TR 2007

15 Special Jurisdiction (Art 5) General Prerequisite Art 5 s 1 General Prerequisite Art 5 s 1 Why special Jurisdictions? Why special Jurisdictions? Are special Jurisdictions mandatory? 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 TR 2007

16 Contract: Place of Performance (Art 5 No 1) Contract cases Art 5 No 1 Contract cases Art 5 No 1 Art 5 No 1 lit a Art 5 No 1 lit a Art 5 No 1 lit b 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 TR 2007

17 Case: De Bloos v Bouyer Rs 14/76 (place of performance) Parties Parties Plaintiff: Grantee of an exclusive distributorship right (registered office in B) Plaintiff: Grantee of an exclusive distributorship right (registered office in B) Defendant: Grantor (established in F) Defendant: Grantor (established in F) Subject: Subject: Unilateral breach of contract without preliminary notice done by the grantor Unilateral breach of contract without preliminary notice done by the grantor Grantee seeking dissolution of the contract and damages Grantee seeking dissolution of the contract and damages TR 2007 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)

18 Tort (Art 5 No 3) Tort defined Tort defined Jurisdiction at 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 TR 2007

19 Case: Shevill v Presse Alliance Rs C-68/93 (place, where the damage occurred) 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 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 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 ( copies), few copies sold in the UK (230), in the rest of Europe) France-Soir mainly distributed in France ( copies), few copies sold in the UK (230), in the rest of Europe) Plaintiff seeks compensation Plaintiff seeks compensation TR 2007 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

20 Other Special Jurisdictions (Art 5 No 2, 4-7) Maintenance (Art 5 No 2) Maintenance (Art 5 No 2) Adhesion (Art 5 No 4) Adhesion (Art 5 No 4) Agency (Art 5 No 5) Agency (Art 5 No 5) Trust (Art 5 No 6) Trust (Art 5 No 6) Salvage of cargo (Art 5 No 7) 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 TR 2007

21 Case: Bayern v Blijdenstein Rs C-433/01 (maintanance) The daughter of Blijdenstein, a resident of the Netherlands, received an education grant from the Free State of Bavaria. 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. Bavaria was seeking reimbursement of the grant at a Munich court. TR 2007 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 Art 5(2) abolished: see now Art 3 Reg no 4/2009

22 Several Parties (Art 6) General prerequisite: General prerequisite: Several Defendants (Art 6 No 1) Several Defendants (Art 6 No 1) Intervention Warranty (Art 6 No 2) Intervention Warranty (Art 6 No 2) Counterclaim (Art 6 No 3) Counterclaim (Art 6 No 3) Rights in rem (Art 6 No 4) 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 action Compensation: Means of defense, no J necessary Personal action combined with real property action TR 2007

23 Case: Reisch AG v Kiesel GmbH Rs C-103/05 (several defendants) 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 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 K provided a security for G action against G was dismissed, because bankruptcy proceedings had been instituted before R’s action action against G was dismissed, because bankruptcy proceedings had been instituted before R’s action K objected jurisdiction K objected jurisdiction TR 2007 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

24 Exclusive Jurisdiction (Art 22) Scope of application Scope of application Why exclusive Jurisdiction? 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. TR 2007

25 Real property (Art 22 No 1) Real rights, rent defined Real rights, rent defined Holiday Flats exception 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 TR 2007

26 Case: Gaillar v Chekili Rs C-518/99 (exclusive Jurisdiction) Gaillard sold immovable property in France to Chekili 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 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 G brought proceedings against C for rescission of the contract and for damages TR 2007 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)

27 J Agreements (Art 23) / Scope of Application Material Scope Material Scope Territorial Scope Territorial Scope Applicability (temporal) 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 TR 2007

28 J Agreements (Art 23) / form In Writing Art 23 (1) lit a/1 In Writing Art 23 (1) lit a/1 Evidenced in Writing Art 23 (1) lit a/2 Evidenced in Writing Art 23 (1) lit a/2 Practices Art 23 (1) lit b Practices Art 23 (1) lit b Usage in intl Trade Art 23 (1) lit c Usage in intl Trade Art 23 (1) lit c Written consent of both parties gives proof of agreement Incl letters, (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 TR 2007

29 Case: Castelletti v Trumpy Rs C-159/97 (choice of Jurisdiction) Trumpy delivered goods to Casteletti on board a vessel; both Italian companies Trumpy delivered goods to Casteletti on board a vessel; both Italian companies Accident while unloading  Castelletti sued Trumpy in an Italian court for damages 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 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 Front side containing reference to the clauses on the reverse side signature of the shipper below the reference signature of the shipper below the reference TR 2007 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

30 Consumer Contracts (Art 15-17) / Scope Meaning of Consumer Cont Meaning of Consumer Cont Art 15 (1) Material scope of application Art 15 (1) Material scope of application Art 15 (1) lit a lit a lit b lit b lit c lit c Territorial scope of application 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 TR 2007

31 Consumer Contracts (Art 15-17) / Jurisdiction Consumer as plaintiff Art 16 Î Consumer as plaintiff Art 16 Î Consumer as Defendant Art 16 II Consumer as Defendant Art 16 II Agreements on Jurisdiction Art 17 Agreements on Jurisdiction Art 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 TR 2007

32 Case: Rudolf Gabriel Rs C-96/00 (price combined with order for goods) Gabriel (domiciled in A) received personalized letter from a German company Gabriel (domiciled in A) received personalized letter from a German company at his private address at his private address in a sealed envelope in a sealed envelope made him believe, that made him believe, that he won ATS he won ATS he would receive it simply on demand he would receive it simply on demand if he would order goods for ATS 200 if he would order goods for ATS 200 Wants to bring an action in Austria Wants to bring an action in Austria TR 2007 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

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

34 Individual Contracts of Employment (Art 18-21) Employment contract defined Employment contract defined Jurisdiction Jurisdiction Art 19 Art 19 Art 20 Art 20 Art 21 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 TR 2007

35 Examination as to Jurisdiction (Art 25, 26) Exclusive J of other court Exclusive J of other court Own Jurisdiction 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) TR 2007

36 Provisional & protective measures (Art 31) Provisional measures defined Provisional measures defined Jurisdiction Jurisdiction Art 31 Art 31 TR 2007 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

37 Lis pendens (Art 27) Same cause of action (Art 27) Same cause of action (Art 27) Consequences Art 27 (1) Art 27 (2) Consequences Art 27 (1) Art 27 (2) When court seised (Art 30) 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 court if plaintiff takes all subsequent steps TR 2007

38 Case: Gubisch v Palumbo Rs 144/86 (same cause of action) Gubisch Maschinenfabrik KG (registered office in D) and Palumbo (a resident of I) are disputing the validity of a contract 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 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 Later Palumbo brought an action to declare the contract void in the Tribunale di Roma Jurisdiction of TdRoma? Jurisdiction of TdRoma? TR 2007 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

39 Related proceedings (Art 28) Related Actions (Art 28) Related Actions (Art 28) Consequences Consequences Art 28 (1) Art 28 (1) Art 28 (2) 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 TR 2007 No concept other than lis pendens and related proceedings to solve concurring jurisdiction no injunction under national law of civ.proc.

40 Recognition of Judgments Judgment Art 32 Judgment Art 32 Recognition Art 33 (2), (3) Recognition Art 33 (2), (3) Recognition as Rule Art 33 (1) Recognition as Rule Art 33 (1) Impediments to Recognition 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 TR 2007

41 Impediments against recognition (Art 34) Public policy Public policy No 1 No 1 Service of Action Service of Action No 2 No 2 Irreconcilability Irreconcilability No 3 No 3 Nr 4 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 TR 2007

42 Case: Lancray v Peters C-305/88 (service duly effected) Lancray SA (French company) bringing an action against Peters und Sickert KG (German company) in France 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 Summons were served timely but only in French language Peters did not appear at the hearing Peters did not appear at the hearing Court granted Lancray a default judgment Court granted Lancray a default judgment Lancray seeks enforcement in Germany Lancray seeks enforcement in Germany TR 2007 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 Art 34 No 2 BI-reg: Art 34 No 2 BI-reg: two prerequisites two prerequisites Service duly in time Service duly in time In a way, which enables to arrange for defense In a way, which enables to arrange for defense not all formalities of service have to be met not all formalities of service have to be met autonomous minimum standard autonomous minimum standard if service not duly effected, it must be determined whether defendant could arrange for his defense if service not duly effected, it must be determined whether defendant could arrange for his defense cure of defective service no longer relevant cure of defective service no longer relevant Defendant obliged to appeal against the judgment  otherwise loosing objection against recognition Defendant obliged to appeal against the judgment  otherwise loosing objection against recognition

43 Enforcement (System only) Subject Subject „Exequatur“ „Exequatur“ Prerequisites Prerequisites Appeal 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)) TR 2011


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