27 NOVEMBER 1996. An Act to approve the Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters, Protocol No. 1 on Certain Problems of Jurisdiction, Procedure and Enforcement, Protocol No. 2 on Uniform Interpretation of the Convention, Protocol No. 3 on the Application of Article 57, the three Declarations, and the Final Act, made in Lugano on 16 September 1988 (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted in We sanction the following:
Article 1^er
This Act regulates a matter referred to in section 77, paragraph 1^er6° of the Constitution.
Article 2
The Convention concerning the Judiciary and Enforcement of Decisions in Civil and Commercial Matters, Protocol No. 1 on Certain Problems of Jurisdiction, Procedure and Enforcement, Protocol No. 2 on the Uniform Interpretation of the Convention, Protocol No. 3 on the Application of Article 57, the three Declarations, and the Final Act, made in Lugano on 16 September 1988, will be fully effective.
Promulgate this Act, order it to be coated with the Seal and published by the Belgian Monitor.
Given in Brussels, 27 November 1996.
ALBERT
By the King:
Minister of Foreign Affairs,
E. DERYCKE
Minister of Justice,
S. DE CLERCK.
CONVENTION
Convention concerning the Judiciary and Enforcement of Decisions in Civil and Commercial Matters, Protocol No. 1 on Certain Problems of Jurisdiction, Procedure and Enforcement, Protocol No. 2 on the Uniform Interpretation of the Convention, Protocol No. 3 on the Application of Article 57, the three Declarations, and the Final Act, made in Lugano on 16 September 1988
Preamble
THE HIGH CONTRACTING PARTIES TO THE PRESENT CONVENTION,
SUBMISSIONS to strengthen the legal protection of persons established in their territories,
ESTIMING that it is important for this purpose to determine the jurisdiction of their jurisdictions in international order, to facilitate recognition and to establish a prompt procedure to ensure the execution of decisions, authentic acts and judicial transactions,
CONSCIENTES of the links between them and which have been consecrated in the economic field by the free trade agreements between the European Economic Community and the Member States of the European Free Trade Association,
REQUEST TO CONSIDERATION the Brussels Convention of 27 September 1968 concerning the judicial competence and execution of decisions in civil and commercial matters, as adapted by the accession conventions during the successive enlargements of the European Communities,
PERSUADEES that the extension of the principles of this Convention to the States parties to this instrument will strengthen judicial and economic cooperation in Europe,
DESIREUSES to ensure a uniform interpretation as possible of it,
DECIDE in this spirit of conclusion of this Convention and
CONVENUES OF PROVISIONS WHICH MAY:
You're the first. - Scope of application
Article 1
This Agreement applies in civil and commercial matters, regardless of the nature of the jurisdiction. It does not include tax, customs or administrative materials.
Are excluded from its application:
1. the state and the capacity of natural persons, the regimes. matrimonial, wills and estates;
2. bankruptcies, concordats and other similar procedures;
3. social security;
4. arbitration.
PART II. - Jurisdiction
Section 1^er. - General provisions
Article 2
Subject to the provisions of this Convention, persons domiciled in the territory of a Contracting State shall be appealed, irrespective of their nationality, to the jurisdictions of that State.
Persons who do not have the nationality of the State in which they are domiciled are subject to the rules of jurisdiction applicable to nationals.
Article 3
Persons domiciled in the territory of a Contracting State may only be appealed to the courts of another Contracting State under the rules set out in sections 2 to 6 of this title.
They may not be invoked, inter alia:
- in Belgium: Article 15 of the Civil Code (Burgerlijk Wetboek) and Article 638 of the Judicial Code (Gerechtelijk Wetboek);
- in Denmark: Article 246, paragraphs 2 and 3 of the Civil Procedure Act (Lov om rettens pleje);
- in the Federal Republic of Germany: Article 23 of the Code of Civil Procedure (Zivilprozesordnung);
- in Greece: Article 40 of the Code of Procedure;
- in France: articles 14 and 15 of the Civil Code;
- in Ireland: provisions relating to jurisdiction based on an introductive act of proceeding served or notified to the defendant temporarily in Ireland;
- in Iceland: Article 77 of the Code of Civil Procedure (lög um meofero einkamala i heraoi);
- in Italy: Article 2 and Article 4, Numbers 1 and 2 of the Code of Civil Procedure (Codice di procedura civile);
- in Luxembourg: articles 14 and 15 of the Civil Code;
- in the Netherlands: Article 126 third paragraph and Article 127 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering);
- Norway: Article 32 of the Code of Civil Procedure (Tvistemalsloven);
- in Austria: Article 99 of the Judiciary Jurisdiction Act (Jurisdiktionsnorm);
- in Portugal: article 65, paragraph 1, point (c), article 65, paragraph 2 and article 65A, point cdu Code of Civil Procedure (Código de Processo Civil) and article Il du Code de procédure du travail (Código de Processo de Trabalho);
- in Switzerland: for the place of the sequester/Gerichtsstand des Arrestortes/foro del luogo del sequestro within the meaning of Article 4 of the Federal Law on Private International Law/Bundesgesetz uber das international Privatrecht/legge federale sul diritto internazionale privato;
- in Finland: the second, third and fourth sentence of Article 1^er Chapter 10 of the Code of Judicial Procedure (oikeudenkaymiskaari/rattegangsbalken);
- in Sweden: the first sentence of Article 3 of Chapter 10 of the Code of Judicial Procedure (Rattegangsbalken);
- the United Kingdom: jurisdiction provisions based on:
(a) an introductive action served or notified to the defendant temporarily in the United Kingdom;
(b) the existence in the United Kingdom of property owned by the defendant; or
(c) the seizure by the claimant of property located in the United Kingdom.
Article 4
If the defendant is not domiciled in the territory of a Contracting State, the jurisdiction shall be. in each Contracting State, regulated by the law of that State, subject to the application of the provisions of Article 16.
Any person, regardless of nationality, domiciled in the territory of a Contracting State, may, like nationals, invoke against that defendant the rules of jurisdiction in force therein and, in particular, those provided for in Article 3, second paragraph.
Section 2. - Special skills
Article 5
The defendant domiciled in the territory of a Contracting State may be appealed to another Contracting State:
1. in contractual matters, before the court of the place where the obligation that serves as a basis for the application has been or must be enforced; in the case of an individual labour contract, this place is the place where the worker usually performs his or her work, and if the worker does not usually perform his or her work in the same country, that place is the place where the worker was hired;
2. in respect of food obligations, before the court of the place where the creditor of food has his domicile or habitual residence or, if it is an incidental application to an action relating to the State of Persons, before the competent court according to the law of the forum to find out, except on this jurisdiction is solely based on the nationality of one of the parties;
3. in criminal or quasi-criminal matters, before the court of the place where the wrongful act occurred;
4. if it is an action for compensation for damage or restitution based on an offence, before the court seized of the public action, to the extent that, according to its law, the court may know of civil action;
5. if it is a dispute regarding the operation of a branch, agency or other institution, before the court of the place of their situation;
6. in its capacity as founder, trustee or beneficiary of a trust constituted either under the law or in writing or by a verbal agreement, confirmed in writing, before the courts of the Contracting State in whose territory the trust has its domicile;
7. if this is a dispute over the payment of compensation claimed because of the assistance or rescue of a cargo or cargo, before the court in which that cargo or cargo relates to it:
(a) has been seized to guarantee this payment
or
(b) could have been seized, but a security or other security right has been given;
this provision only applies if it is claimed that the defendant has a right on the cargo or on the cargo or had such a right at the time of such assistance or rescue.
Article 6
The same defendant may also be attractive:
1. if there are several defendants before the court of the domicile of one of them;
2. if it is a request for a guarantee or an application or intervention, before the court seized of the original application, unless it was formed only to translate the person who was called out of his court;
3. if it is a counterclaim that derives from the contract or from the fact on which the original application is based, before the court before it;
4. in contractual matters, if the action may be attached to an action in respect of real property rights directed against the same defendant, before the Court of the Contracting State where the building is located.
Article 6bis
Where, pursuant to this Convention, a court of a Contracting State is competent to hear actions in liability for the use or operation of a ship, that court or any other person that substitutes the domestic law of that State shall also be aware of requests relating to the limitation of that liability.
Section 3. - Insurance Skills
Article 7
In terms of insurance, jurisdiction is determined by this section, without prejudice to the provisions of Articles 4 and 5 Item 5.
Article 8
The insurer domiciled in the territory of a Contracting State may be appealed:
1. in the state courts where he has his home
or
2. in another Contracting State, before the court of the place or the insurance taker at his home
or
3. if it is a co-insurer, before the court of a Contracting State seized the action against the co-insurer.
Where the insurer is not domiciled in the territory of a Contracting State, but has a branch, agency or other establishment in a Contracting State, it shall be considered for disputes relating to their exploitation as having their domicile in the territory of that State.
Article 9
The insurer may, in addition, be appealed to the court of the place where the harmful fact occurred if it was liability or insurance coverage of buildings. The same is true if the insurance covers both buildings and furniture covered by the same policy and affected by the same claim.
Article 10
In respect of liability insurance, the insurer may also be called to the court before the action of the injured person against the insured if the law of that court permits.
The provisions of sections 7, 8 and 9 are applicable in the event of a direct action by the victim against the insurer where the direct action is possible.
If the law on this direct action provides for the appeal of the insurance or insured person, the same court shall also be competent in respect of them.
Article 11
Subject to the provisions of Article 10, third paragraph, the action of the insurer may only be brought before the courts of the Contracting State in the territory of which the defendant is domiciled, whether he is an insurance owner, insured or beneficiary.
The provisions of this section do not affect the right to apply for a counterclaim to the court that has an application originating in accordance with this section.
Article 12
The provisions of this section may only be derogated from by conventions:
1. after the birth of the dispute
or
2. that allow the insured person, the insured person or the beneficiary to file with other courts other than those set out in this section,
or
3. which, passed between an insurance taker and an insurer having, at the time of the conclusion of the contract, their domicile or habitual residence in the same Contracting State, have the effect, even if the harmful act occurs abroad, of assigning jurisdiction to the courts of that State unless the law of that State prohibits such conventions,
or
4. entered into by an insurance lessee who does not have his domicile in a Contracting State, except if it is a compulsory insurance or that covers a building located in a Contracting State,
or
5. which concern an insurance contract as it covers one or more of the risks listed in section 12bis.
Article 12bis
The risks referred to in section 12, point 5, are as follows:
1. any damage:
(a) sea vessels, offshore installations and high seas or aircraft caused by events related to their commercial use;
(b) goods other than passenger baggage, during carriage carried out by these vessels or aircraft in whole or in combination with other modes of transport;
2. any liability, except for personal injury to passengers or their baggage:
(a) resulting from the use or operation of vessels, facilities or aircraft, in accordance with paragraph 1 (a) above, provided that the law of the Contracting State of Registration of the aircraft does not prohibit the attributable terms of jurisdiction in the assurance of such risks;
(b) due to goods during carriage referred to in sub-paragraph 1 (b) above;
3. any monetary loss related to the use or export of vessels, facilities or aircraft in accordance with paragraph I (a) above, including that of freight or charter benefit;
4. any risk associated incidentally to any of those referred to in points 1 to 3 above.
Section 4.
Competence in consumer contracts
Article 13
In the case of a contract entered into by a person for use that may be considered to be foreign to his or her professional activity, below referred to as the "consumer", the jurisdiction is determined by this section, without prejudice to the provisions of Article 4 and Article 5, item 5;
1. when it is a temporary sale of tangible furniture objects;
2. when it is a temporary loan or another credit transaction related to the financing of a sale of such objects;
3. for any other contract with the purpose of providing services or tangible furniture if:
(a) the conclusion of the contract was preceded in the State of the consumer's home of a specially made proposal or an advertisement and
(b) the consumer has performed in that State the necessary actions to conclude this contract.
Where the consumer ' s contractor is not domiciled in the territory of a Contracting State, but has a branch, agency or other establishment in a Contracting State, it shall be considered for disputes relating to their exploitation as having his domicile in the territory of that State.
This section does not apply to the contract of carriage.
Article 14
The action brought by a consumer against the other party to the contract may be brought either before the courts of the Contracting State in the territory of which the party is domiciled or before the courts of the Contracting State in the territory of which the consumer is domiciled.
The action against the consumer by the other party to the contract can only be brought before the courts of the Contracting State in the territory of which the consumer is domiciled.
These provisions do not affect the right to file a counterclaim before the court that has an application originating in accordance with this section.
Article 15
The provisions of this section may only be derogated from by conventions:
1. after the birth of the dispute
or
2. which allow the consumer to refer to other courts than those set out in this section
or
3. who, passed between the consumer and its partner having, at the time of the conclusion of the contract, their domicile or
their habitual residence in the same Contracting State shall assign jurisdiction to the courts of that State unless the law of that State prohibits such conventions.
Section 5. - Exclusive skills
Article 16
Only competent, regardless of domicile:
1. (a) in respect of real property rights and real property leases, the courts of the Contracting State in which the building is located;
(b) However, in the case of leases of immovables concluded for temporary personal use for a maximum period of six consecutive months, the courts of the Contracting State in which the defendant is domiciled, provided that the tenant is a natural person and that no party is domiciled in the Contracting State in which the immovable is located;
2. in respect of the validity, invalidity or dissolution of corporations or legal entities having their seat in the territory of a Contracting State, or the decisions of their bodies, the courts of that State;
3. the courts of the Contracting State in whose territory these registers are held;
4. in respect of the registration or validity of patents, marks, drawings and models, and other similar rights giving rise to filing or registration, the courts of the Contracting State in the territory of which the filing or registration has been requested, has been carried out or is deemed to have been made under an international convention;
5. the courts of the Contracting State in the place of enforcement.
Section 6. - Extension of jurisdiction
Article 17
1. If the parties, at least one of whom has his domicile in the territory of a Contracting State, have agreed to a court or tribunal of a Contracting State to hear disputes arising or arising in connection with a specific legal report, the Court or the courts of that State shall be solely competent. This jurisdictional attribute convention is concluded:
(a) in writing or verbally with written confirmation or
(b) in a form that conforms to the habits established by the parties, or
(c) in international trade, in a form that is confirmed for use of which the parties were aware or expected to have knowledge and which is widely known and regularly observed in such trade by the parties to contracts of the same type in the trade industry.
Where such a convention is concluded by parties whose domicile is not in the territory of a Contracting State, the courts of other Contracting States shall not be aware of the dispute until such time as the court or designated courts have declined their jurisdiction.
2. The court or tribunals of a Contracting State to which the constitutive act of a trust attributes jurisdiction shall be exclusively competent to hear an action against a founder, trustee or beneficiary of a trust, if it is a relationship between such persons or their rights or obligations under the trust.
3. The jurisdictional attributable conventions and similar provisions of trust constituents are without effect if they are contrary to the provisions of Articles 12 and 15 or if the courts to which they derogate are exclusively competent under Article 16.
4. If a jurisdictional attribute convention has been stipulated only in favour of one of the parties, the party retains the right to appeal to any other competent tribunal under this Convention.
5. In dealing with individual labour contracts, the jurisdiction attribute conventions only produce their effects if they are after the birth of the dispute.
Article 18
In addition to the cases in which his jurisdiction arises from other provisions of this Convention, the judge of a Contracting State to which the defendant appeared is competent. This rule is not applicable if the purpose of the appearance is to challenge jurisdiction or if there is another jurisdiction exclusively competent under Article 16.
Section 7. - Verification of jurisdiction and admissibility
Article 19
The judge of a Contracting State, who is principally seized of a dispute for which a jurisdiction of another Contracting State is solely competent under Article 16, declares itself ex officio incompetent.
Rule 20
Where the defendant domiciled in the territory of a Contracting State is appealed to a jurisdiction of another Contracting State and does not appear, the judge shall declare ex officio incompetent if his jurisdiction is not founded under this Agreement.
The judge is required to rule as long as it is not established that the respondent was able to receive the introductive act of proceeding or an equivalent act in a timely manner to defend itself or that any diligence was done to that end.
The provisions of the preceding paragraph will be replaced by those of Article 15 of the Hague Convention, of 15 November 1965, relating to the foreign service and notification of judicial and extra-judicial acts in civil or commercial matters, if the introductive act of proceeding had to be forwarded in accordance with that Convention.
Section 8. - Litispendance and connexity
Article 21
Where applications having the same object and the same cause are filed between the same parties before different contracting State courts, the court seized in the second place shall, on its own motion, decide until the jurisdiction of the first instance court is established.
When the jurisdiction of the first-instance court is established, the second-place court held in favour of the court.
Article 22
Where related applications are filed before different jurisdictions of contracting States and are pending in the first instance, the court in the second instance may suspend its decision.
This jurisdiction may also be discontinued, at the request of one of the parties, provided that its law allows for the junction of related cases and that the first-instance court is competent to hear both applications.
As defined in this article, the interrelated requests are so close that they are interested in investigating and judging at the same time in order to avoid solutions that could be inconsistible if the causes were judged separately.
Article 23
Where applications fall within the exclusive jurisdiction of several jurisdictions, the divestiture is in favour of the first jurisdiction.
Section 9. - Provisional and provisional measures
Article 24
The provisional or provisional measures provided for in the law of a Contracting State may be applied to the judicial authorities of that State, even if, under this Convention, a jurisdiction of another Contracting State is competent to determine the merits.
PART III. - Recognition and execution
Rule 25
A decision shall mean, within the meaning of this Convention, any decision rendered by a court of a Contracting State whatever the name given to it, such as order, judgment, order or warrant of execution, and the determination by the Registrar of the cost of the trial.
Section 1. - Recognition
Rule 26
Decisions rendered in a Contracting State shall be recognized in the other Contracting States, without the need for any procedure.
In the event of a dispute, any interested party who invokes the principal recognition may, in accordance with the procedure provided for in sections 2 and 3 of this title, note that the decision must be recognized.
If the recognition is invoked in an incidental manner before a jurisdiction of a Contracting State, the latter shall be competent to ascertain it.
Rule 27
Decisions are not recognized:
1. if recognition is contrary to the public order of the requested State;
2. if the introductive act or equivalent act has not been served or notified to the defendant failing, regularly and in good time, to defend himself;
3. if the decision is inconsistent with a decision made between the same parties in the requested State;
4. if the court of the State of origin, in order to render its decision, has, by cutting a question concerning the State or the capacity of the natural persons, the matrimonial regimes, the wills and the successions, ignored a rule of private international law of the requested State, unless its decision results only if it had applied the rules of private international law of the requested State;
5. if the decision is inconsistent with a decision previously rendered in a non-contracting State between the same parties in a dispute having the same object and cause, where the latter decision meets the conditions necessary for its recognition in the requested State.
Rule 28
Similarly, decisions are not recognized if the provisions of Sections 3, 4 and 5 of Title II have been ignored and in the case provided for in Article 59.
Recognition of a decision may also be denied in one of the cases provided for in sections 54ter, paragraph 3 and 57, paragraph 4.
In assessing the competences mentioned in the preceding paragraphs, the required authority is bound by the factual findings on which the jurisdiction of the State of origin has based its jurisdiction.
Without prejudice to the provisions of the first and second subparagraphs, the jurisdiction of the courts of the State of origin cannot be controlled; the rules relating to jurisdiction do not concern the public order referred to in section 27, item 1.
Rule 29
In no case can the foreign decision be reviewed on the merits.
Rule 30
The judicial authority of a Contracting State, to which is invoked the recognition of a decision rendered in another Contracting State, may suspend to decide whether that decision is the subject of an ordinary remedy.
The judicial authority of a Contracting State to which is invoked the recognition of a decision rendered in Ireland or the United Kingdom and whose execution is suspended in the State of origin as a result of the exercise of an appeal may be suspended.
Section 2. - Implementation
Rule 31
The decisions rendered in a Contracting State and which are enforceable shall be enforced in another Contracting State after they have been declared enforceable upon request by any party concerned.
However, in the United Kingdom, these decisions are enforced in England and Wales, Scotland or Northern Ireland, after being registered for execution, upon request of any interested party, in either of these parts of the United Kingdom, as the case may be.
Rule 32
1. The application is made:
- in Belgium, in court of first instance or rechtbank van eerste aanleg,
- in Denmark, at the byret,
- in the Federal Republic of Germany, to the President of a House of Landgericht,
- in Greece,
- in Spain, at the Juzgado de Primera Instancia,
- in France, the president of the High Court,
- in Ireland, at the High Court,
- in Iceland, in the herasdómari,
- in Italy, has the calllo corte,
- in Luxembourg, the president of the district court,
- in the Netherlands, to the president of the boroughsrechtbank,
- in Norway, herredsrett or byrett as namsrett,
- in Austria, Landesgericht or Kreisgericht,
- in Portugal, at the Judicial Court of Circulo,
- Switzerland:
(a) if it is a decision to pay a sum of money, to the judge of the fetch/Rechtsöffnungsrichter/giudice competente a pronunciare sul rigetto dell'opposizione, within the framework of the procedure governed by articles 80 and 81 of the Federal Law on Debt Prosecution and Bankruptcy/Bundesgesetz über
(b) if it is a matter of decisions that do not make a conviction to pay a sum of money, to the competent cantonal judge/zuständiger kantonaler Vollstreckungsrichter/ competent cantonal judge pronunciare l'exequatur,
- in Finland, ulosotonhaltija/överexekutor,
- in Sweden, at Svea Hovrätt
- in the United Kingdom:
a) in England and Wales, the High Court of Justice or, if it is a food obligation decision, the Magistrates' Court seized through the Secretary of State;
(b) in Scotland, the Court of Session or, if it is a food obligation decision, to the Sheriff Court, seized through the Secretary of State;
c) in Northern Ireland, the High Court of Justice or, if it is a food obligation decision, the Magistrates' Court seized via the Secretary of State.
2. The territorially competent jurisdiction is removed by the party's domicile against which the exemption is sought. If this party is not domiciled in the territory of the requested State, the jurisdiction shall be determined by the place of execution.
Rule 33
The procedure for filing the request shall be determined by the law of the requested State.
The appellant must make an election of domicile within the jurisdiction of the court. However, if the law of the requested State does not recognize the election of domicile, the applicant designates an ad litem agent.
The documents referred to in articles 46 and 47 are attached to the request.
Rule 34
The court before the request shall rule at a short time, without the party against whom the execution is requested may, in this case, make an observation.
The request may only be rejected on one of the grounds provided for in sections 27 and 28.
In no case can the foreign decision be reviewed on the merits.
Rule 35
The decision made upon request shall be immediately brought to the attention of the appellant, at the diligence of the clerk, in accordance with the terms determined by the law of the requested State.
Rule 36
If enforcement is authorized, the party against whom enforcement is requested may appeal against the decision in the month of its service.
If the party is domiciled in a Contracting State other than that where the decision authorizing the execution has been rendered, the period is two months and is short of the day the service has been made to a person or to a home. This period does not include an extension due to distance.
Rule 37
1. The appeal shall be appealed according to the rules of the contradictory procedure:
- in Belgium, before the court of first instance or rechtbank van eerste aanleg;
- in Denmark, in front of the landsret;
- in the Federal Republic of Germany, in front of the Oberlandesgericht;
- in Greece, ahead;
- in Spain, before the Provincial Auditor;
- in France, in front of the Court of Appeal;
- in Ireland, in front of the High Court;
- in Iceland, in front of the harasdómari;
- in Italy, in front of the calllo corte;
- in Luxembourg, before the Superior Court of Justice sitting in civil appeal;
- in the Netherlands, in front of the boroughsrechtbank;
- in Norway, in front of the lagmannsrett;
- in Austria, in front of the Landesgericht or the Kreisgericht;
- in Portugal, before the Tribunal da Relaç1⁄2o;
- in Switzerland, before the cantonal court/Kantonsgericht/ cantonal court;
- in Finland, in front of the hovioikeus/hovrätt;
- in Sweden, in front of the Svea hovrätt;
- in the United Kingdom:
a) in England and Wales, in front of the High Court of Justice or, if it is a food obligation decision, in front of the Magistrates' Court;
(b) in Scotland, before the Court of Session or, if it is a food obligation decision, before the Sheriff Court;
c) in Northern Ireland, in front of the High Court of Justice or, if it is a food obligation decision, before the Magistrates'Court.
2. The decision on the appeal cannot be:
- in Belgium, Greece, Spain, France, Italy, Luxembourg and the Netherlands, only a cassation appeal;
- in Denmark, only a remedy before the hojesteret, with the authorization of the Minister of Justice;
- in the Federal Republic of Germany, only a Rechtsbeschwerde;
- in Ireland, only a point of law appeal before the Supreme Court;
- in Iceland only a remedy before the Hjstirttur;
- in Norway, only a remedy (kjjremål or anke) before the Hoyesteretts Kjaeremalsutvalg or Hoyesterett;
- in Austria, in the case of an appeal, only Revisionsrekurs and, in the case of an opposition, that of the appeal (Berüfung) with the possibility of a Revision;
- in Portugal, only an appeal on a point of law;
- in Switzerland, only an appeal of public law before the federal court/staatsrechtliche Beschwerde beim Bundesgericht/ricorso di diritto pubblico davanti al tribunale federale;
- in Finland, only a remedy before the korkein oikeus/högsta domstolen;
- in Sweden only a remedy before the högsta domstolen;
- in the United Kingdom, only one point of law.
Rule 38
The jurisdiction before the appeal may, at the request of the party who filed it, suspend to rule, if the foreign decision is, in the State of origin, the subject of an ordinary remedy or if the time limit for the appeal is not expired; in the latter case, the court may grant a period of time to appeal.
When the decision has been rendered in Ireland or the United Kingdom, any remedy provided for in the State of origin is considered an ordinary remedy for the application of the first paragraph.
This jurisdiction may also subordinate the execution to the constitution of a guarantee it determines.
Rule 39
During the period of appeal provided for in section 36 and until it has been decided on it, it may only be done on the property of the party against which the execution is requested.
The enforcement decision shall be authorized to carry out these measures.
Rule 40
1. If its application is rejected, the appellant may appeal:
- in Belgium, in front of the court of appeal or the hof van beroep;
- in Denmark, in front of the landsret;
- in the Federal Republic of Germany, in front of the Oberlandesgericht;
- in Greece, in front of the;
- in Spain, before the Provincial Auditor;
- in France, in front of the Court of Appeal;
- in Ireland, in front of the High Court;
- in Iceland, in front of the hera.
- in Italy, in front of the calllo corte;
- in Luxembourg, before the Superior Court of Justice sitting in civil appeal;
- in the Netherlands, in front of the gerechtshof;
- in Norway, in front of the lagmansrett;
- in Austria, in front of the Landesgericht or the Kreisgericht;
- in Portugal, before the Court of Relaç1⁄2o;
- in Switzerland, before the cantonal court/Kantonsgericht/ cantonal court;
- in Finland, in front of the hovioikeus/hovrätt;
- in Sweden, in front of the Svea hovrätt;
- in the United Kingdom:
a) in England and Wales, in front of the High Court of Justice or, if it is a food obligation decision, in front of the Magistrates' Court;
(b) in Scotland, in front of the Court of Session or, if it is a food obligation decay, in front of the Sheriff Court;
c) in Northern Ireland, in front of the High Court of Justice or, if it is a food obligation decision, before the Magistrates' Short.
2. The party against whom enforcement is requested is required to appear before the court before the appeal. In the event of default, the provisions of Article 20, Second and Third subparagraphs shall apply, whereas this Part is not domiciled in the territory of one of the Contracting States.
Rule 41
The decision on the remedy provided for in section 40 shall not be subject to:
- in Belgium, Greece, Spain, France, Italy, Luxembourg and the Netherlands, only a cassation appeal;
- in Denmark, only a remedy before the hojesteret, with the authorization of the Ministry of Justice;
- in the Federal Republic of Germany, only a Rechtsbeschwerde;
- in Ireland, only a point of law appeal before the Supreme Court;
- in Iceland only a remedy before the Hjstirttur;
- in Norway, only a remedy (kjjremål or anke) before the Hoyesteretts kjjremalsutvalg or Hoyesterett;
- in Austria, only a Revisionsrekurs;
- in Portugal only an appeal on a point of law;
- in Switzerland, only an appeal of public law before the federal court/staatsrechtliche Beschwerde beim Bundesgericht/ricorso di diritto pubblico davanti al tribunale fesderale;
- in Finland, only a remedy before the korkein oikeus/högsta domstolen;
- in Sweden only a remedy before the högsta domstolen;
- in the United Kingdom, only one point of law.
Rule 42
When the foreign decision has ruled on several heads of the application and the enforcement cannot be authorized at all, the judicial authority shall grant enforcement for one or more of them.
The claimant may request partial execution.
Rule 43
Foreign decisions condemning a criminal offence are enforceable in the requested State only if the amount has been fixed by the courts of the State of origin.
Rule 44
Le. An applicant who, in the State of origin, has benefited in whole or in part from the legal assistance or exemption of costs and expenses, shall, in the procedure provided for in Articles 32 to 35, receive the most favourable assistance or the widest exemption provided for by the law of the requested State.
The applicant who requests the execution of a decision in Denmark or Iceland by an administrative authority in respect of food obligations may in the requested State avail himself of the provisions of the first paragraph if he produces a document prepared respectively by the Danish Ministry of Justice or by the Icelandic Ministry of Justice, and certifying that he fulfils the economic conditions in order to be able to benefit in whole or in part from legal assistance or an exemption from costs.
Rule 45
No deposit or deposit under any denomination may be imposed on the basis of either the quality of a foreigner or the lack of domicile or residence in the country, to the party requesting the execution in a Contracting State of a decision rendered in another Contracting State.
Section 3. - Common provisions
Rule 46
The party who invokes recognition or requests the execution of a decision must produce:
1. an expedition of the latter meeting the conditions necessary for its authenticity;
2. if this is a default decision, the original or a certified true copy of the document establishing that the introductive act of proceeding or an equivalent act has been served or notified to the deficient party.
Rule 47
The party requesting enforcement must also produce:
1. any document to be determined that, according to the law of the State of origin, the decision is enforceable and served;
2. where applicable, a document justifying that the appellant receives legal assistance in the State of origin.
Rule 48
If the documents referred to in section 46, point 2, and section 47, point 2, are not produced, the judicial authority may give a time limit to produce or accept equivalent documents or, if it considers itself sufficiently enlightened, dispense them.
A translation of documents is produced if required by the judicial authority; the translation shall be certified by a person authorized for that purpose in one of the Contracting States.
Rule 49
No legalization or similar formality is required in respect of the documents referred to in Articles 46, 47 and 48, second paragraph, and, where applicable, ad litem proxy.
PART IV. - Authentic acts and judicial transactions
Rule 50
Authentic acts received and enforceable in a Contracting State shall, upon request, be declared enforceable in another Contracting State in accordance with the procedure provided for in Articles 31 et seq. The request can only be rejected if the execution of the authentic act is contrary to the public order of the requested State.
The act produced must bring together the conditions necessary for its authenticity in the State of origin.
The provisions of section 3 of titration III are, as appropriate, applicable.
Rule 51
The transactions concluded before the judge during a trial and enforceable in the State of origin are enforceable in the requested State under the same conditions as the authentic acts.
PART V. - General provisions
Rule 52
To determine whether a party has a domicile in the territory of the Contracting State whose courts are seized, the judge applies its domestic law.
Where a party has no domicile in the State whose courts are seized, the judge, to determine whether it has a domicile in another Contracting State, applies the law of that State.
Rule 53
The headquarters of corporations and legal entities shall be considered at home for the purposes of this Agreement. However, in order to determine this seat, the judge seized applies the rules of his private international law.
To determine whether a trust has its domicile in the territory of a Contracting State whose courts are seized, the judge shall apply the rules of its private international law.
PART VI. - Transitional provisions
Rule 54
The provisions of this Agreement shall apply only to legal proceedings brought and to authentic acts received after the entry into force of this Convention in the State of origin and, where the recognition or enforcement of a decision or an authentic act is requested, in the requested State.
However, the decisions made after the date of entry into force of the Convention presence in the relations between the State of origin and the State required as a result of actions brought before that date are recognized and enforced in accordance with the provisions of Title III if the rules of jurisdiction applied are in accordance with those provided for either by Title II or by a convention that was in force between the State of origin and the State required when the action was brought.
If, in writing prior to the entry into force of this Agreement, the parties in dispute with respect to a contract had agreed to apply to that contract Irish law or the law of a part of the United Kingdom, the courts of Ireland or that part of the United Kingdom retain the right to know that dispute.
Article 54bis
For three years following the entry into force of this Convention in respect of Denmark, Greece, Ireland, Iceland, Norway, Finland and Sweden respectively, maritime jurisdiction in each of these States is determined not only in accordance with the provisions of Title II, but also in accordance with points 1 to 7 below. However, these provisions will cease to be applicable in each of these States at the time when the international convention for the unification of certain rules on the conservatory seizure of sea vessels, signed in Brussels on 10 May 1952, will be in force for it.
1. A person domiciled in the territory of a Contracting State may be appealed for a maritime claim before the courts of one of the States mentioned above when the ship on which the debt is held or any other ship owned by the Contracting State has been the subject of a judicial seizure in the territory of the latter State to guarantee the debt, or could have been the subject of a seizure where a security or other security has been granted:
(a) if the applicant is domiciled in the territory of that State;
(b) if maritime debt is born in that State;
(c) if the maritime claim was born during a voyage during which the seizure was made or could have been made;
(d) if the debt arises from a collision or damage caused by a ship, by execution or omission of a manoeuvre or by non-compliance with the regulations, either to another ship or to the things or persons on board;
(e) if the debt is born of assistance or rescue;
(f) if the debt is guaranteed by a maritime mortgage or a dead-age on the seized vessel.
2. May be seized the vessel to which the marine claim relates or any other ship belonging to the ship that was, at the time the marine claim was born, the owner of the ship to which that claim relates. However, for claims under item 5 (o), (p) or (q), only the vessel on which the claim relates may be seized.
3. Ships will be deemed to have the same owner when all shares of property belong to one or the same persons.
4. In the event of a charter of a ship with the delivery of the nautical management, where the charterer responds to a marine claim relating to the vessel alone, the ship may be seized or any other ship belonging to that charterer, but no other ship owned by the owner may be seized under that marine session. The same is true in all cases where a person other than the owner is held a maritime claim.
5. "Marine receivable" means the claim of a right or debt having one or more of the following causes:
(a) damage caused by a ship either by collision or otherwise
(b) loss of life or injury caused by a ship or from the operation of a ship;
(c) Assistance and rescue;
(d) contracts relating to the use or lease of a ship by division or otherwise;
(e) contracts for the carriage of goods by a ship under a charter-part, bill of lading or otherwise;
(f) loss or damage to goods and baggage carried by a ship;
(g) common avarie;
(h) ready for fat;
(i) towing;
(j) Pilotage;
(k) supplies, regardless of location, of goods or equipment made to a vessel for its operation or maintenance;
(l) construction, repairs, equipment of a vessel or hold charges;
(m) salaries of captains, officers or crew;
(n) disbursements of the master and those made by shippers, charterers and agents on behalf of the vessel or its owner;
(o) the disputed ownership of a ship;
(p) the co-ownership of a ship or its possession, or operation, or the rights to the proceeds of operation of a ship in co-ownership;
(q) any maritime hypothec and any dead-gage.
6. In Denmark, the term "judicial seizure" covers, with respect to maritime claims referred to in sub-(o) and (p), the forbud provided that this procedure is the only one admitted in this case by articles 646 and 653 of the Civil Procedure Act (Lov om rettens pleje).
7. In Iceland, the term "sentence" is deemed to include, with respect to the maritime claims referred to in sub-(o) and (p) of this section, a "Lögbann", where this procedure is the only possible way for such receivables under Chapter III of the Seizure and Injunction Act (lög um kyrrsetningu og lögbann).
PART VII
Relationship with the Brussels Convention and other Conventions
Rule 54ter
1. This Convention does not affect the application by the Member States of the European Communities of the Convention concerning the Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters, signed in Brussels on 27 September 1968 and the Protocol concerning the interpretation by the Court of Justice of the said Convention, signed in Luxembourg on 3 June 1971, as amended by the Conventions relating to the accession to the said Convention and the Protocol of the States adhering to the European Communities,
2. However, this Convention shall apply in any event:
(a) in the matter of jurisdiction, where the defendant is domiciled in the territory of a Contracting State to this Convention that is not a member of the European Communities or where Articles 16 or 17 of this Agreement confer jurisdiction on the courts of a Contracting State;
(b) in respect of litispendance or connexity as provided for in Articles 21 and 22 of this Convention, when the requests are made in a Contracting State which is not a member of the European Communities and in a Contracting State which is a member of the European Communities;
(c) in respect of recognition and enforcement, where either the State of origin or the requested State is not a member of the European Communities.
3. In addition to the reasons for title III, recognition or enforcement may be denied if the rule of jurisdiction on the basis of which the decision has been rendered differs from that resulting from this Convention and if recognition or enforcement is sought against a party that is domiciled in the territory of a Contracting State that is not a member of the European Communities, unless the decision may otherwise be recognized or executed according to the law required.
Rule 55
Without prejudice to the provisions of article 54, second paragraph, and article 56, this Convention shall replace between the States which are parties thereto the conventions concluded between two or more of these States, namely:
- the agreement between France and the Swiss Confederation on judicial competence and the execution of judgements in civil matters, signed in Paris on 15 June 1869,
- the treaty between the Swiss Confederation and Spain on the reciprocal execution of judgements or judgments in civil and commercial matters, signed in Madrid on 19 November 1896,
- the agreement between the Swiss Confederation and the German Reich on the recognition and enforcement of judicial decisions and arbitral awards, signed in Bern on 2 November 1929,
- the convention between him. Denmark, Finland, Iceland, Norway and Sweden on recognition and enforcement of judgements, signed in Copenhagen on 16 March 1932,
- the agreement between the Swiss Confederation and Italy on the recognition and execution of judicial decisions, signed in Rome on 3 January 1933,
- the agreement between Sweden and the Swiss Confederation on the recognition and enforcement of judicial decisions and arbitral awards, signed in Stockholm on 15 January 1936,
- the agreement between the Kingdom of Belgium and Austria on the mutual recognition and enforcement of judicial decisions and authentic acts in respect of food obligations, signed in Vienna on 25 October 1957,
- the agreement between the Swiss Confederation and Belgium on the recognition and execution of judicial decisions and arbitral awards, signed in Bern on 29 April 1959,
- the agreement between the Federal Republic of Germany and Austria on mutual recognition and enforcement of judicial decisions and transactions, and authentic civil and commercial acts, signed in Vienna on 6 June 1959,
- the agreement between the Kingdom of Belgium and Austria on the mutual recognition and enforcement of judicial decisions, arbitral awards and authentic civil and commercial acts, signed in Vienna on 16 June 1959,
- the agreement between Austria and the Swiss Confederation on the recognition and enforcement of judicial decisions, signed in Bern on 16 December 1960,
- the agreement between Norway and the United Kingdom on mutual recognition and enforcement of civil judgements, signed in London on 12 June 1961,
- the agreement between the United Kingdom and Austria on the mutual recognition and enforcement of judicial decisions in civil and commercial matters, signed in Vienna on 14 July 1961, with a protocol signed in London on 6 March 1970,
- the agreement between the Kingdom of the Netherlands and Austria on the mutual recognition and enforcement of judicial decisions and genuine acts in civil and commercial matters, signed in The Hague on 6 February 1963,
- the agreement between France and Austria on the recognition and execution of judicial decisions and authentic acts in civil and commercial matters, signed in Vienna on 15 July 1966,
- the agreement between Luxembourg and Austria on the recognition and execution of judicial decisions and authentic acts in civil and commercial matters, signed in Luxembourg on 29 July 1971,
- the agreement between Italy and Austria on mutual recognition and enforcement of judicial decisions and transactions, and authentic civil and commercial acts, signed in Rome on 16 November 1971,
- the agreement between Norway and the Federal Republic of Germany on the recognition and execution of judgements and binding documents in civil and commercial matters, signed in Oslo on 17 June 1977,
- the convention between him. Denmark, Finland, Iceland, Norway and Sweden on the recognition and enforcement of civil judgements, signed in Copenhagen on 11 October 1977,
- the agreement between Austria and Sweden on the recognition and enforcement of civil judgements, signed in Stockholm on 16 September 1982,
- the agreement between Austria and Spain on the mutual recognition and enforcement of judicial decisions and transactions, and authentic civil and commercial acts, signed in Vienna on 17 February 1984,
- the agreement between Norway and Austria on the recognition and enforcement of civil judgments. signed at Vienna on 21 May 1984, and
- the Convention between Finland and Austria on the Recognition and Enforcement of Judgments in Civil Matters, signed in Vienna on 17 November 1986.
Rule 56
The treaty and conventions referred to in Article 55 continue to produce their effects in matters to which this Convention is not applicable.
They continue to produce their effects with respect to decisions rendered and acts received prior to the entry into force of this Convention.
Rule 57
1. This Convention does not affect the conventions to which Contracting States are or will be parties and which, in particular matters, regulate judicial jurisdiction, recognition or enforcement of decisions.
2. This Convention does not preclude a court of a Contracting State party to a convention referred to in paragraph 1^er may base its jurisdiction on such a convention, even if the defendant is domiciled in the territory of a Contracting State not party to such a convention. The court shall, in any case, apply article 20 of this Convention.
3. Decisions rendered in a Contracting State by a court having based its jurisdiction on a convention referred to in paragraph 1^er shall be recognized and executed in the other Contracting States in accordance with Part III of this Convention.
4. In addition to the cases provided for in Title III, recognition or enforcement may be denied if the requested State is not a party to a convention referred to in paragraph 1^er and that the person against whom recognition or enforcement is requested is domiciled in that State, unless the decision may be recognized or executed under any other rule of law of the requested State.
5. If a convention referred to in paragraph 1^er to which are parties the State of origin and the requested State determines the conditions of recognition and enforcement of decisions, it is applied these conditions. It may, in any case, be applied to the provisions of this Convention relating to the procedure for the recognition and enforcement of decisions.
Rule 58
(Not applicable)
Rule 59
This Convention does not preclude a Contracting State from agreeing to a third State under a Convention on the Recognition and Enforcement of Judgments, not to recognize a decision rendered, in particular in another Contracting State, against a defendant who had his domicile or habitual residence in the territory of the third State where, in a case provided for in Article 4, the decision could only be based on a competence referred to in Article 3.
However, no Contracting State may undertake to a third State not to recognize a decision rendered in another Contracting State by a jurisdiction whose jurisdiction is based on the existence in that State of property owned by the defendant or on the seizure by the plaintiff of such property:
1. if the application relates to the ownership or possession of the said property, is intended to obtain authorization to dispose of it or is related to another dispute concerning them,
or
2. if the property is the guarantee of a claim that is the subject of the application.
PART VIII. - Final provisions
Rule 60
May be parties to this Convention:
(a) States that, at the time of the opening to the signature of this Convention, are members of the European Communities or the European Free Trade Association;
(b) States that, after the opening of the signature of this Convention, become members of the European Communities or the European Free Trade Association;
(c) States invited to accede in accordance with Article 62, paragraph 1^er(b)
Rule 61
1. This Convention is open for signature by the Member States of the European Communities or the European Free Trade Association.
2. The convention will be subject to ratification by the signatory States. The instruments of ratification will be deposited with the Swiss Federal Council.
3. The Convention shall enter into force on the first day of the third month after the date on which two States, including a Member State of the European Communities and a Member State of the European Free Trade Association, have deposited their instruments of ratification.
4. With respect to any other signatory State, the convention will produce its effects on the first day of the third month following the deposit of its instrument of ratification.
Rule 62
1. Can accede to this Convention after its entry into force:
(a) the States referred to in Article 60, item (b);
(b) other States which, upon request of a Contracting State addressed to the depositary State, have been invited to accede to the depositary State shall only invite the State concerned to accede if it has obtained, after having informed them of the contents of the communications that this State intends to make pursuant to Article 63, the unanimous agreement of the signatory States as well as of the Contracting States mentioned in Article 60, points (a) and (b).
2. If a Member State wishes to clarify the meaning of Protocol No. 1, negotiations will be initiated for this purpose. A negotiating conference will be convened by the Swiss Federal Council.
3. With respect to any Member State, the Convention will produce its effects on the first day of the third month following the deposit of the instrument of accession.
4. However, with regard to a Member State referred to in paragraph 1^er, points (a) or (b), the convention will only produce effects in the relations between the acceding State and the Contracting States that have not made any objection to such accession before the first day of the third month following the deposit of the instrument of accession.
Rule 63
Any Member State shall, at the time of deposit of its instrument of accession, communicate the information required for the application of Articles 3, 32, 37, 40, 41 and 55 of this Convention and provide, where appropriate, the details set out in the negotiations for the purposes of Protocol No. 1.
Rule 64
1. This Convention shall be concluded for an initial period of five years from the date of its entry into force, in accordance with Article 61, paragraph 3, even for States that have ratified or acceded to it subsequently.
2. Upon the expiry of the initial five-year period, the agreement will be extended from year to year.
3. Upon the expiry of the initial five-year period, any State Party may, at any time, denounce the Convention by sending a notification to the Swiss Federal Council.
4. The denunciation shall take effect at the end of the calendar year following the expiration of a period of six months from the date of receipt of the notification of denunciation by the Swiss Federal Council.
Rule 65
Are annexed to this Convention:
- Protocol No. 1, concerning certain jurisdictional, procedural and enforcement problems;
- Protocol No. 2 on the uniform interpretation of the convention;
-a Protocol No. 3, concerning the application of Article 57.
These protocols are an integral part of the convention.
Rule 66
Each Contracting State may request a review of this Convention. To this end, the Swiss Federal Council convenes a review conference within six months of the application for review.
Rule 67
The Swiss Federal Council will notify the States that have been represented at the Lugano Diplomatic Conference and the States that have subsequently acceded to the Convention:
(a) the deposit of any instrument of ratification or accession;
(b) the dates of entry into force of this Convention for the Contracting States;
(c) denunciations received in accordance with section 64;
(d) any declaration received under Article Ibis of Protocol No. 1;
(e) any declaration received pursuant to Article Iter d u Protocol No. 1;
(f) statements received pursuant to Article IV of Protocol No. 1;
(g) communications made pursuant to Article VI of Protocol No. 1.
Rule 68
This Convention, drafted in a single copy in the German, English, Danish, Spanish, Finnish, French, Greek, Irish, Icelandic, Italian, Dutch, Norwegian, Portuguese and Swedish languages, the fourteen texts being equally authentic, will be deposited in the archives of the Swiss Federal Council, which will hand over a certified copy to each of the Governments of the States that have been represented at the Lughérano Diplomatic Conference and to each State.
In faith, undersigned Plenipotentiaries have affixed their signatures at the bottom of this Convention.
Ten blijke waarvan de ondergetekende gevolmachtigden hun handtekening onder dit verdrag hebben gesteld.
Done in Lugano, the sixteenth September nine hundred and eighty.
Gedaan te Lugano, de zestiende september negentienhonderd achtentachtig.
PROTOCOL No. 1
Relating to certain jurisdictional problems,
of procedure and execution
CONTRACTING PARTIES CONVENUES OF SUIVING PROVISIONS, which ANNEX TO THE CONVENTION:
Article I
Any person domiciled in Luxembourg, appealed to a court of another Contracting State under Article 5, point 1, may waive the jurisdiction of that court. The court declares itself ex officio incompetent if the defendant does not appear.
Any jurisdictional attribute agreement within the meaning of Article 17 shall only affect a person domiciled in Luxembourg if the person expressly and specially accepted it.
Article Ibis
The Swiss Confederation reserves the right to declare at the time of deposit of the instrument of ratification that a judgment rendered in another Contracting State is not recognized or executed in Switzerland when the following conditions are met:
(a) the jurisdiction of the court that has pronounced the decision shall be based solely on article 5, paragraph 1, of this Convention;
(b) the defendant had his domicile in Switzerland at the time of the introduction of the proceeding; for the purposes of this Article, a corporation or legal entity is considered to be domiciled in Switzerland when it has its registered office and the effective center of its activities in Switzerland;
(c) the defendant shall oppose the recognition or enforcement of the judgment in Switzerland, provided that he has not waived the claim provided for in this paragraph.
2. This reservation will not apply to the extent that, at the time the recognition or enforcement is requested, an exemption has been made to section 59 of the Swiss Federal Constitution. The Swiss government will transmit such exemptions to the signatory and adherent States.
3. This reserve will cease to produce its effects on 31 December 1999. It can be lifted at any time.
Article Iter
Any Contracting State may, by declaration made at the time of signature or deposit of its instrument of ratification or accession, reserve the right, notwithstanding Article 28, not to recognize or enforce the decisions rendered in the other States parties when the jurisdiction of the original jurisdiction is founded, pursuant to Article 16,1, b), on the sole domicile of the defendant in the State of origin while the property is located on the territory of the State of origin.
Article II
Without prejudice to more favourable national provisions, persons domiciled in a Contracting State and prosecuted for an involuntary offence before the repressive courts of another Contracting State of which they are not nationals may be defended by persons authorized for that purpose, even if they do not appear personally.
However, the court in question may order personal appearance if it has not taken place, the decision on civil action, without the person in question having the opportunity to be defended, may not be recognized or executed in the other Contracting States.
Article III
No tax, right or tax, proportional to the value of the dispute, is collected in the requested State in the course of the procedure for granting the enforceable formula.
Article IV
The judicial and extra-judicial acts established in the territory of a Contracting State and which shall be notified or served on persons in the territory of another Contracting State shall be transmitted in accordance with the modes provided for in the conventions or agreements concluded between the Contracting States.
Unless the State of destination opposes it by declaration made to the Swiss Federal Council, these acts may also be sent directly by the ministerial officers of the State where the acts are directed to the ministerial officers of the State in whose territory the consignee of the act is located. In this case, the departmental officer of the State of origin transmits a copy of the act to the required State ministerial officer, who is competent to hand it over to the consignee. This discount is made in the forms provided by the law of the requested State. It is noted by a certificate sent directly to the departmental officer of the State of origin.
Article V
The judicial jurisdiction provided for in Article 6, item 2, and Article 10, for the application for a guarantee or the application for intervention, cannot be invoked in the Federal Republic of Germany, Spain, Austria or Switzerland. Any person domiciled in the territory of another Contracting State may be called before the courts to:
- the Federal Republic of Germany, pursuant to articles 68 and 72, 73 and 74 of the Code of Civil Procedure concerning litis denuntiatio;
- Spain, pursuant to article 1482 of the Civil Code;
- Austria, in accordance with Article 21 of the Code of Civil Procedure (Zivilprozessordnung) concerning litis denuntiatio;
- Switzerland, in accordance with the appropriate provisions concerning litis denuntiatio of cantonal civil procedure codes.
The decisions rendered in the other Contracting States under Article 6, paragraph 2, and Article 10 are recognized as being carried out in the Federal Republic of Germany, Spain, Austria and Switzerland, in accordance with Title III. The effects of third parties, pursuant to the preceding paragraph, by judgements rendered in these States are also recognized in the other Contracting States.
Article Vbis
With regard to food obligations, the terms "judge", "court" and "jurisdiction" include the Danish, Icelandic and Norwegian administrative authorities.
In civil and commercial matters, the term "judge", "court" and "jurisdiction" includes the Finnish "ulosotonhaltija/överexekutor".
Article Vter
In disputes between the master and a member of the crew of a sea ship registered in Denmark, Greece, Ireland, Iceland, Norway, Portugal or Sweden, relating to remuneration or other conditions of service, the courts of a contracting State must control whether the diplomatic or consular agent under the ship was informed of the dispute. They must stay to decide as long as this agent has not been informed. They must, even on their own motion, be deferred if this officer, duly informed, has exercised the powers recognized in this matter by a consular convention or, in the absence of such a convention, has raised objections to jurisdiction within the time limit.
Article Vquater
(Not applicable)
Article Vquinquies
Without prejudice to the competence of the European Patent Office in accordance with the Agreement on the Grant of European Patents signed in Munich on 5 October 1973, the courts of each Contracting State are solely competent, without consideration of domicile, in the matter of the registration or validity of a European patent granted for that State and which is not a Community patent under the provisions of Article 86 of the European Patent Convention for the Common Market, signed in Luxembourg on 15 December 1975.
Article VI
The Contracting States shall transmit to the Swiss Federal Council the texts of their legislative provisions which would amend either the articles of their laws which are mentioned in the Convention or the courts which are designated under title III, section 2.
PROTOCOL No. 2
on the uniform interpretation of the convention
Preamble
THE HIGH CONTRACTING PARTIES,
VU Article 65 of this Convention,
CONSIDERING the substantial link between this Convention and the Brussels Convention,
CONSIDERING that the Court of Justice of the European Communities was recognized competent by the Protocol of 3 June 1971 to rule on the interpretation of the provisions of the Brussels Convention,
EN PLEINE CONNAISSANCE OF Decisions rendered by the Court of Justice of the European Communities on the interpretation of the Brussels Convention until the time of signature of this Convention,
CONSIDERING that the negotiations leading to the conclusion of this convention were based on the Brussels Convention in the light of these decisions,
SOUCIEUSES, in full respect for the independence of the courts, to prevent divergent interpretations and to achieve a uniform interpretation as possible, on the one hand, of the provisions of this Convention and, on the other, of these provisions and those of the Brussels Convention which are reproduced in substance in this Convention,
AGAINST WHO ITS:
Article 1
The courts of each Contracting State shall take due account, in the application and interpretation of the provisions of this Convention, of the principles defined by any relevant decision rendered by the courts of other Contracting States concerning the provisions of that Convention.
Article 2
1. The contracting parties agree to establish a system for the exchange of information regarding the decisions made under this Convention and the relevant decisions rendered under the Brussels Convention. This system includes:
- the transmission to a central body by the competent authorities of decisions rendered by the courts of last instance and by the Court of Justice of the European Communities as well as other particularly important decisions passed in force of the case tried and rendered pursuant to this Convention or the Brussels Convention;
- the classification of these decisions by the central agency, including, to the extent necessary, the establishment and publication of translations and summaries;
- the communication by the central body of documentary material to the competent national authorities of all the signatories and adherents to this Convention and to the Commission of the European Communities.
2. The central body is the Registrar of the Court of Justice of the European Communities.
Article 3
1. A standing committee is established for the purposes of this protocol.
2. The committee is composed of representatives appointed by each signatory State and adherent.
3. The European Communities (Commission, Court of Justice and General Secretariat of the Council) and the European Free Trade Association can attend meetings as observers.
Article 4
1. At the request of a Contracting Party, the depositary of this Convention shall convene meetings of the Committee to exchange views on the operation of the Convention and in particular on the
- the development of the jurisprudence communicated in accordance with Article 2, paragraph 1, first dash,
- the application of Article 57 of this Convention.
2. The Committee, in the light of these exchanges of views, may also consider the opportunity for a review of this Convention on specific issues and make recommendations.
PROTOCOL No. 3
concerning the application of section 57
THE HIGH CONTRACTING PARTIES HAVE CONVENUES OF THIS ITS:
1. For the purposes of the Convention, the provisions which in particular matters regulate judicial jurisdiction, recognition or enforcement of decisions and which are or will be contained in acts of the institutions of the European Communities shall be treated in the same manner as the conventions referred to in Article 57, paragraph 1.
2. If, in the opinion of a Contracting State, a provision of an act of the institutions of the European Communities is not compatible with the convention, the Contracting States shall consider without delay amending it in accordance with Article 66, without prejudice to the application of the procedure established by Protocol No. 2.
DECLARATION
representatives of the governments of the States signatories to the Lugano Convention members of the European Communities on Protocol No. 3 concerning the application of Article 57 of the Convention
At the time of the signing of the Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters in Lugano on 16 September 1988,
OF THE GOVERNMENTS OF THE MEMBER STATES OF EUROPEAN COMMUNITIES,
NOTING in consideration the commitments made with respect to the Member States of the European Free Trade Association,
WHEREAS not to infringe the unity of the legal regime thus established by the convention,
DECLARING that they shall take all the provisions in their power to ensure, in the development of community acts referred to in paragraph 1 of Protocol No. 3 concerning the application of Article 57, respect for the rules of judicial competence and recognition and enforcement of the judgments established by the convention.
In faith, the undersigned signed this declaration.
Ten blijke waarvan de ondergetekenden deze verklaring hebben ondertekend.
Done in Lugano, the sixteenth September nine hundred and eighty.
Gedaan te Lugano, de zestiende september negentienhonderd achtentachtig.
DECLARATION
of the Governments of the States signatories to the Lugano Convention members of the European Communities
At the time of the signing of the Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters in Lugano on 16 September 1988,
OF THE GOVERNMENTS OF THE MEMBER STATES OF EUROPEAN COMMUNITIES,
DECLARING, that they consider appropriate that the Court of Justice of the European Communities, by interpreting the Brussels Convention, take due account of the principles contained in the jurisprudence resulting from the Lugano Convention.
In faith, the undersigned signed this declaration.
Ten blijke waarvan de ondergetekenden deze verklaring hebben ondertekend.
Done in Lugano, the sixteenth September nine hundred and eighty.
Gedaan te Lugano, de zestiende september negentienhonderd achtentachtig.
DECLARATION
representatives of the Governments of the States signatories to the Lugano Convention that are members of the European Free Trade Association
At the time of the signing of the Convention on Jurisdiction and the Execution of Decisions in Civil and Commercial Matters made in Lugano on 16 September 1988,
THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBERS OF THE EUROPEAN ASSOCIATION OF LIBRE-ECHANGE,
DECLARING that they consider appropriate that their courts, by interpreting the Lugano Convention, take due account of the principles contained in the jurisprudence of the Court of Justice of the European Communities and the courts of the Member States of the European Communities relating to the provisions of the Brussels Convention which are reproduced in substance in the Lugano Convention.
In faith, the undersigned signed this declaration.
Ten blijke waarvan de ondergetekenden deze verklaring hebben ondertekend.
Done in Lugano, the sixteenth September nine hundred and eighty.
Gedaan te Lugano, de zestiende september negentienhonderd achtentachtig.
FINAL ACT
Representatives
Government of the Kingdom of Belgium,
Government of the Kingdom of Denmark,
Government of the Federal Republic of Germany,
Government of the Hellenical Republic,
From the Government of the Kingdom of Spain,
Government of the French Republic,
From the Government of Ireland,
From the Government of the Republic of Iceland,
Government of the Italian Republic,
From the Government of the Grand Duchy of Luxembourg,
Government of the Kingdom of the Netherlands,
Government of the Kingdom of Norway,
From the Government of the Republic of Austria,
Government of the Portuguese Republic,
Government of the Kingdom of Sweden,
Government of the Swiss Confederation,
Government of the Republic of Finland,
Government of the United Kingdom of Great Britain and Northern Ireland,
At the Diplomatic Conference on Judicial Jurisdiction in Civil Matters, held in Lugano on sixteen September, nine hundred and eighty-eight, found that the following texts were prepared and arrested at the conference:
I. the Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters;
II. the following protocols that form an integral part of the Convention:
- No. 1, relating to certain jurisdictional, procedural and enforcement problems;
- No. 2, on the uniform interpretation of the Convention;
- No. 3, concerning the application of Article 57.
III. the following statements:
- Declaration by the representatives of the governments of the States signatories to the Lugano Convention members of the European Communities on Protocol No. 3 concerning the application of Article 57 of the Convention;
- Statement by the representatives of the Governments of the States signatories to the Lugano Convention members of the European Communities;
- Statement by the representatives of the governments of the States signatories to the Lugano Convention members of the European Free Trade Association.
CONVENTION
concerning judicial jurisdiction and enforcement of civil and commercial decisions made in Lugano on 16 September 1988
(90/C 189/07)
REPORT
prepared by
Mr. P. JENARD
Director of Honorary Administration at the Belgian Ministry of Foreign Affairs
and Mr. G. MÖLLER
President of the Toijala Court of First Instance
As well as the draft convention and other instruments developed by government experts, the draft supporting report was submitted, prior to the diplomatic conference held in Lugano from 12 to 16 September 1988, to the governments of the Member States of the European Communities and the European Free Trade Association (EFTA).
The present report takes into account the comments made by some Governments and the changes made by the diplomatic conference to the projects it had to know. He appeared as a commentary to the agreement signed in Lugano on 16 September 1988.
CHAPTER I
CONSIDERATIONS D'ORDRE GENERAL
1. LIMINARY NOTES
1. The Lugano Convention, opened for signature on 16 September 1988, is concluded between the Member States of the European Communities and the Member States of the European Free Trade Association (EFTA).
We will mention it, in the report, under the name of "Lugano Convention" although, in the preparatory work, it was called "parallel convention". This denomination had been retained since it corresponds very widely to the Brussels Convention of 27 September 1968 concerning judicial competence and enforcement of civil and commercial decisions, concluded between the six Member States originating from the Communities (1) as it was adapted following the accession of new States to the Communities (2) For reasons of ease, this convention, so adapted, will be called the Brussels Convention.
While the Lugano Convention not only takes over the structure but also many provisions of the Brussels Convention, it is no less a separate instrument.
2. This report does not contain a detailed comment on all the provisions of the Lugano Convention.
For the provisions that revert to those of the Brussels Convention, reference should be made to the reports that have already been prepared by Mr.P. Jenard on the 1968 Convention, by Mr.P. Schlosser on the 1978 Convention relating to the accession of Denmark, Ireland and the United Kingdom and by Mr.M. Evrigenis and Kerameus on the 1982 Convention relating to the accession of the Hellenic Republic (3)
The provisions in force in each of the EFTA member states concerning the recognition and enforcement of foreign judgments as well as the status of the conventions concluded in this matter by these States either between them or with member States of the Communities are not included in the very body of this report but are included in annexes I and II. This is, in order not to increase the text, a different presentation than that of previous reports.
2. JUSTIFICATION AND HISTORY OF THE LUGANO CONVENTION
3. The European Communities and the European Free Trade Association are currently a group of very many European countries that share very close conceptions on its constitutional plans (separation of legislative, executive and judicial powers), legal (primary of law and individual) and economic (market economy).
However, the two organizations differ in terms of their objectives and institutions. That is why it seemed useful to us to give a brief overview.
A. EUROPEAN COMMUNITIES
4. The European Communities differ significantly from other international or European organizations by their own purposes and the originality of their institutional apparatus.
They pursue the specific objectives assigned to them by the three treaties that base them (ECSC, EEC and Euratom) but their final objective is to establish a true European union.
The economic dimension of this union is added to a political discussion which is expressed by the channel of European political cooperation by which the Twelve seek to harmonize their foreign policies.
The European construction initiated by the six founding states that were Belgium, the Federal Republic of Germany, France, Italy, the Grand Duchy of Luxembourg and the Netherlands gradually developed by the signing first of all of the Treaty of Paris (18 April 1951) which established the European Coal and Steel Community (ECSC) and subsequently (25 March 1957) of the two treaties of Rome which serve as the basis for the European Economic Community (ECC)
Denmark, Ireland and the United Kingdom joined these three treaties on 1^er January 1973 (New Europe), Greece on 1^er January 1981 (Europe of the Ten), Spain and Portugal on 1^er January 1986 (Europe of the Twelve).
The European Communities therefore today include twelve European States that are bound by commitments in common.
5. By the single European act entered into force on 1^er July 1987, an additional step was taken on the path of a European Union. This new community legal instrument, in particular, tends to gradually be established during a period expiring on 31 December 1992, a real domestic market involving the free movement of goods, people, services and capital. It also aims to promote significant progress in both monetary and new policy sectors (including environment and new technologies). It combines community-based decision-making mechanisms in a number of areas and institutionalizes, on a conventional basis, European political cooperation.
6. The institutional architecture of the Communities is based on four pillars:
1° Council of Ministers
The Council is composed of representatives of the Member States and each government delegates one of its members to it according to the competence and nature of the files being processed.
The Ministers of Foreign Affairs coordinate the general community policy.
The Council of Ministers is the decision-making body of the Communities. It participates in the normative power and, as such, is empowered to take mandatory measures which, in the form of regulations or guidelines, directly bind member States and/or their nationals. The regulations are directly applicable in Member States while the guidelines must be transposed into national rights.
The decisions of the Council are prepared by the Committee of Permanent Representatives of the Member States to the (Communautés (Coreper).
The decisions of the Council are taken either unanimously or by a simple majority or by a qualified majority based on the legal basis on which they are based.
The single act tends to multiply cases where the majority vote becomes the rule in order to advance the work of a Community to the expanded contours.
The European Council brings together the heads of state and government of the Member States twice a year. This body, created at the highest level and on political bases in 1975, was awarded conventional recognition following the adoption of the single act.
Its mission is to provide the necessary guidance and impetus for the development of the community process.
2° The Commission
The Commission is currently composed of 17 members who are appointed jointly by governments.
The Commission is the most original institution of the community institutional apparatus: It cannot be assimilated to a secretariat because the authors of the treaties wanted to make it the driving force of European integration. It actively participates in the preparation and formulation of the Council's actions under its leadership.
3° The Court of Justice
The purpose of the Court is to ensure respect for community law in the execution of the provisions of the three constituent treaties. Her powers are numerous and she is empowered, among other things, to decide on the validity of the acts of the community authorities and on the interpretation of treaties and community acts.
By its jurisprudence, the Court affirmed the primacy of community law on the constitutional and legislative provisions of the Member States.
By the Luxembourg Protocol of 3 June 1971, the Member States of the Communities assigned jurisdiction to the Court of Justice to rule on the interpretation of the 1968 Brussels Convention, which particularly holds our attention.
4° The European Parliament
Since 1979, members of the European Parliament have been elected for a five-year term by direct universal suffrage.
If it has a sufficiently broad political control power over the Council and the Commission's action and in the budgetary field, the European Parliament does not have a legislative power similar to that of national parliaments.
The single act aims to involve Parliament more closely in the exercise of the legislative power vested in the Council and the Commission through new cooperation techniques.
In conclusion, in our field, it should be noted that:
(1) the Lugano Convention is attached to the 1968 Brussels Convention which originates in Article 220 of the Treaty establishing the European Economic Community;
(2) with respect to community acts, the normative power is the principal responsibility of the Council;
3) the European Communities have woven a very dense network of relations with the outside, which translate into various agreements, whether they are states or organisations.
B. EUROPEAN ASSOCIATION OF LIBRE-ECHANGE (EFTA)
8. The European Free Trade Association brings together six European States that share with the European Communities the objective of creating a dynamic and homogeneous European economic space comprising the member states of the EEC and EFTA. This objective was set out in the Luxembourg declaration adopted on 9 April 1984 by the ministers of all UNECE and EFTA member countries.
The aim of EFTA is to eliminate import rights, quotas and other trade barriers in Western Europe and to promote liberal, non-discriminatory practices in international trade. Founded in 1960, the association now comprises six states: Austria, Finland, Iceland, Norway, Sweden and Switzerland.
The creation and evolution of EFTA is part of the history of economic integration in Western Europe. Its founding members, which included Denmark, Portugal and the United Kingdom, set themselves as the first objective of establishing among themselves the freedom of trade in industrial goods. This was achieved three years before the scheduled date, at the end of 1966.
9. The exchanges between EFTA countries account for only 13 to 14% of the total volume of their trade. Their trade with EWC is much more important, as it represents more than half of their imports and more than half of their exports as well. EFTA countries are also important trading partners for the EEC that market between 20% and 25% of its exports (excluding trade between EEC countries).
The narrowness of trade ties between EFTA and EEC countries was one of the reasons why a free trade zone was attempted in the 1950s. including the six EEC nations and other Western European countries. This attempt failed, but when seven of the countries concerned decided to strengthen their ties by creating EFTA, they saw, among other things, a way to prepare the way to finally realize the unique market they hoped to see established in Europe. The EFTA was therefore born with the ambition to achieve a large market extending to all Western European countries. This was the second objective of the founding members of EFTA.
This second objective was actually achieved in the 1970s by negotiations that allowed each of the current EFTA members to develop new relations with the EEC, at the same time the EWC expanded by the accession of two former EFTA countries, Denmark and the United Kingdom, as well as Ireland. Free trade agreements entered into force between the EWC extended to Austria, Portugal, Sweden and Switzerland on 1^er January 1973, as well as between EWC and Iceland on 1^er April 1973. Similar agreements entered into force between Norway and ECE on 1^er July 1973, as well as between Finland and the EWC on 1^er January 1974. Under these agreements, the import rights of almost all industrial products were abolished in July 1977. These free trade agreements also apply to trade between EFTA countries and three countries that subsequently joined EEC: Greece on 1^er January 1981, Portugal and Spain on 1^er January 1986.
As mentioned above, the extension and intensification of EEC-EELE cooperation has led, since 1984, to talks between the two groups of States in many areas that are directly or indirectly linked to the EEC's ambitious programme to create a real domestic market for 1992. They concern topics such as technical barriers to trade, competition rules, industrial property rights, product liability, etc.
It is from this perspective that the negotiations of the Lugano Convention are located.
C. JUSTIFICATION OF THE CONVENTION
10. Following a report drawn to the attention of the Parliamentary Assembly of the Council of Europe, by Mr.Johnsen (doc. 5774 of 9 September 1987-FDO C 5774), "Today, the EFTA and EEC countries are a vast market of 350 million European consumers. Apart from a few exceptions, industrial products circulate within this area without being subject to customs duties or quantitative restrictions. It is the largest market in the world, as it exceeds that of the United States of America (240 million) and that of Japan (120 million). »
He therefore appeared to strengthen, through a convention on judicial competence and recognition and enforcement of judgments, this economic cooperation existing between these two groups of European States.
The view was expressed that the Brussels Convention contained a number of principles that could strengthen judicial and economic cooperation among the States concerned.
Indeed, the aim of the Brussels Convention is to simplify the formalities necessary for the mutual recognition and enforcement of judicial decisions. For this purpose, the Convention first determines the rules of jurisdiction with respect to the judge to be seized in civil and commercial matters of a heritage nature. It then provides for a simplified procedure, in relation to traditional and rapid rules, because not contradictory in the first stage, for the implementation of decisions rendered in another Member State.
The Brussels Convention and the 1971 Protocol on its interpretation by the Court of Justice have both acquired considerable practical importance: hundreds of decisions have been taken in the Member States based on the Convention and a series of decisions of the Court are related to its interpretation (see chapter VI).
Because, in particular, of the importance of trade between the member states of the EEC and EFTA, it was predictable that a need would be felt to enforce in a EFTA country a judgment rendered in a Member State of the Communities or vice versa to enforce in a Member State of the European Communities a judgment rendered in a member country of the EFTA.
D. HISTORY OF THE CONVENTION
11. The Swedish government, in 1973, at the time the discussions concerning the accession of Denmark, Ireland and the United Kingdom to the Brussels Convention were under way, noted its interest in the creation of a treaty relationship between the Member States of the Communities, on the one hand, and Sweden and other potentially interested countries, on the other hand, with a view to facilitating the recognition and enforcement of judgements rendered in civil matters.
In 1981, the Swiss mission to the European Communities relaying in this way the Swedish government, asked the competent authorities of the Commission whether, and under what conditions, the recognition and execution of decisions in civil and commercial matters between the Member States of the Communities and Switzerland could be facilitated according to the model of the Brussels Convention of 27 September 1968. The application was reiterated in April 1982 with Mr. Thorn, Chairman of the Commission, by Mr. Furgler, Member of the Swiss Federal Council.
In January 1985, on the terms of reference of the Council of Communities, an ad hoc group examined, on the basis of a document presented by the Commission, the possibility of holding negotiations with the EFTA countries for an extension of the Brussels Convention.
In this context, preliminary discussions were held, with the assistance of the secretariat of the Council and the services of the Commission, with the EFTA member States to verify whether an extension of the Brussels Convention could be envisaged.
The result was that Norway, Sweden, Switzerland and Finland, and later Iceland, were in favour of opening negotiations for the elaboration of a convention parallel to the Brussels convention.
In conclusion of this exploratory phase, the representatives of the Governments of the UNECE member States, gathered in the Committee of Permanent Representatives in May 1985, found that all conditions were met to open negotiations. They therefore agreed to invite EFTA member states to participate in such negotiations.
To this effect, a group of governmental experts from the Member States of the European Communities and experts appointed by the EFTA member states was established. This group, which met the first time on 8 and 9 October 1985, was alternately chaired by Mr. Voyame, Director of the Ministry of Justice of the Swiss Confederation and Mr.Saggio, adviser to the Italian Court of Cassation. These negotiations were attended as observers, a delegation of the Austrian government and representatives of the Hague conference. In addition, the group has designated two rapporteurs, in this case for the Member States of the European Communities, Mr.P. Jenard, then Director of Administration at the Belgian Ministry of Foreign Affairs and, for the EFTA member states, Mr. Moller, then Legislative Advisor at the Finnish Ministry of Justice and currently President of the Toijala Court of First Instance.
The group ' s work lasted two years and was able to develop the text of a draft convention to serve as a basic document for a diplomatic conference.
The overall appreciation of the results achieved by the working group can only be positive, as a broad consensus has been reached both with respect to the draft convention and the protocols that complement it and form an integral part of it and three statements.
In any case, the conclusion of a multilateral convention of many states offers more guarantees from the point of view of legal security and more practical ease than a series of bilateral agreements, fatally divergent. Such a convention also paved the way for the implementation of a common interpretation system. This is also enshrined in Protocol No. 2.
We could have devised another method which had consisted of accession by the EFTA member states to the Brussels Convention. This solution has not been adopted since the Brussels Convention, which originates in article 220 of the Treaty of Rome and which was supplemented by the Protocol of 3 June 1971 assigning jurisdiction to the Court of Justice of the Communities for its interpretation, is a community instrument to which it was difficult to ask third States to subscribe.
12. The draft convention and other instruments developed by the working group were submitted to a diplomatic conference held at the invitation of the Swiss federal government in Lugano from 12 to 16 September 1988. All Member States of the European Communities and the European Free Trade Association were represented at this conference. Some changes were made to the projects established by the working group. Under the final act of the conference (see annex III), representatives of all States concerned have finalized the final texts of the convention, the three protocols and the three declarations.
On the date of the opening for signature, on 16 September 1988, the signatures required were affixed by the representatives of ten States, namely, for the Member States of the European Communities: Belgium, Denmark, Greece, Italy, Luxembourg and Portugal, and for the Member States the EFTA: Iceland, Norway, Sweden and Switzerland. The agreement was signed by Finland on 30 November 1988 and by the Netherlands on 7 February 1989.
3. IDENTICAL STRUCTURE OF THE BRUXELLE CONVENTION AND THE LUGANO CONVENTION - FUNDAMENTAL PRINCIPLES
13. The two conventions are based on identical fundamental principles that we believe can set out as follows:
First principle:
The scope ratione materiae of the two conventions is limited to civil and commercial material of a heritage nature. The articles of the two conventions are exactly the same.
Second principle:
Both conventions belong to the category of "double treaties", i.e. they contain rules of direct jurisdiction. These so nt appl icables in the State where the initial trial takes place to determine the competent jurisdiction, while the "simple treaties" contain only "indirect" rules of jurisdiction which are taken into consideration only at the stage of recognition and enforcement on foreign decisions.
Third principle:
The defendant's domicile is the pivot of the rules of jurisdiction. For the application of the 1978 Accession Convention, the United Kingdom and Ireland have adapted their legislation to align their home concept with that of many countries on the continent (4). Any person domiciled in the territory of a Contracting State shall, unless the conventions otherwise provide, be referred to the courts of that State. In no case may exorbitant rules of jurisdiction be invoked against it (arts. 2 and 3).
On the other hand, where the defendant is not domiciled in the territory of a Contracting State, the jurisdiction continues to be settled in each State by the law of that State. In addition, a person, irrespective of his nationality, who is domiciled in the territory of a Contracting State may, like the nationals of that State, invoke the rules of jurisdiction in force therein and, in particular, those which are exorbitant (Article 4).
Fourth principle:
Both conventions contain specific and detailed rules of jurisdiction determining the cases in which a person domiciled in a Contracting State may be referred to the courts of another Contracting State.
In this regard, the structures of the two conventions are again identical to the fact that these rules are grouped in the following sections.
(a) Complementary rules of jurisdiction
Section 2 of Title II (Articles 5 and 6) contains co-operation rules in that the fores provided for in these articles are added to those provided for in Article 2. It is a question of disputes about which one can consider that there is a particularly close connection with the court that is called to know about it.
The jurisdictional requirements set out in this section are special because, in general terms, the conventions refer both directly to the competent court.
As we will see below, there are some differences between the provisions of this section in the Brussels Convention and those of the Lugano Convention (see articles 5 I and 6 paragraph 4, No.^s 36 to 44 and 46 and 47).
(b) Peremptory rules
Both conventions contain mandatory rules of jurisdiction that concern insurance matters (section 3) and consumer contracts (section 4) and whose primary objective is to protect the weakest part. These rules are imperative in that the parties cannot derogate from them prior to the birth of the dispute. These sections are identical in both conventions.
(c) Exclusive competencies
Both conventions contain rules of exclusive jurisdiction (section 5 article 16):
(a) in certain matters, the dispute must necessarily be brought before the courts of a specified State (real property and rent leases); validity, invalidity or dissolution of companies; validity of registrations on patents, marks, -dessins and models; disputes over enforcement of judgments);
(b) the parties may not derogate from the jurisdiction of the competent recognized courts, nor from a jurisdictional attribute convention after the birth of the dispute (art. 17), nor from a tacit extension (art. 18);
(c) a judge of a State other than a judge whose jurisdictions are recognized as exclusively competent shall deem themselves incompetent (Article 19);
(d) their violation constitutes a ground for refusal of recognition and enforcement (articles 28 and 34);
(e) they apply, whether or not the defendant is domiciled in a Contracting State.
The only discrepancy between the two conventions is the matter of rented leases (see paras. 49-54).
(d) Extension of jurisdiction
The two conventions also contain rules relating to the Conventional or Tacite Extension of Jurisdiction (Section 6 of Title II, Articles 17 and 18). There are differences between the two conventions with respect to Article 17 (conventional extension - see No. 55-61) but not with respect to Article 18 (Tacite extension).
(e) Litispendance and connexity
The two conventions contain in their section 8 provisions relating to litispendance (art. 21) and connexity (art. 22) to avoid infringements of decisions. The texts are slightly different with respect to litispendance (see No. 62).
Fifth principle:
Respect for the rights of defence must be ensured in the State of origin.
The first paragraph of Article 20 of the two conventions, whose importance merits being emphasized, provides that in the event of a defendant's default, the judge shall declare himself ex officio incompetent if his jurisdiction is not founded within the meaning of the agreement.
On the other hand, the second and third paragraphs of this Article 20 address the problem of the meaning of judicial acts to the defendant, the judge being required to rule as long as it is not established that the defendant received the introductive act of proceeding in a timely manner to defend himself. This article was not amended.
Sixth principle:
The causes of refusal of recognition and enforcement are limited.
Pursuant to Article 26 first paragraph of each of the two conventions, decisions rendered in a Contracting State shall be recognized in the other Contracting States without the need to resort to any procedure. Decisions are therefore recognized in full law: the conventions establish a presumption favourable to recognition that can only be overturned if there is one of the causes of refusal referred to in articles 27 and 28.
Two conditions which are usually mentioned in the treaties of the case are not repeated by the two conventions: on the one hand, it is not necessary, to be recognized, that the foreign decision has acquired force of thing tried and, on the other hand, the competence of the judge of the State of origin is no longer controlled by the judge of the requested State. On this point, there are some differences between articles 28 of the two conventions (see no.^s 16 and 82).
Seventh principle:
The exercise procedure is unified and simplified.
It is unified in that sense that in each of the Contracting States the procedure is introduced by way of request.
It is particularly simplified with regard to the exercise of remedies.
Technical adaptations are included in the Lugano Convention in relation to the 1968 Convention (see no. 68-70).
Eighth principle:
Conventions regulate relations with other international conventions. On this point, and with regard to the conventions concluded in particular subjects, there are, however, differences between the two conventions (see paras. 79-82).
Ninth principle:
The common interpretation of the two conventions tends to be assured.
The interpretation of the 1968 Convention is conferred on the Court of Justice by the Luxembourg Protocol of 3 June 1971.
The interpretation of the Lugano Convention is regulated by Protocol No. 2 to the Lugano Convention (see No. 110 to 1 19).
CHAPTER II
THE CHAMPS RESPECTION OF THE BRUXELLE CONVENTION AND THE LUGANO CONVENTION
(Article 54ter)
14. As we have stated, if both conventions are based on an identical structure and contain a very large number of similar provisions, they are nevertheless distinct.
15. The respective application of the two conventions is the subject of Article 54 ter. It is important to observe, first of all, that this article concerns mainly the judges of the member countries of the European Communities, since they are the only ones who can be called to take a decision on the basis of either of the two conventions. Indeed, the judges of the EFTA member states are not required to observe the provisions of the Brussels Convention, since their States are not parties to this Convention.
Article 54 ter, however, concerns the judges of the EFTA countries as it appeared useful to introduce in this article, with a view to clarity, clarifications concerning the litispendance, connexity and recognition and enforcement of judgments. The economy of Article 54 ter is as follows:
Paragraph 1^er of this article, the Brussels Convention continues to apply in relations between Member States of the European Communities.
These include:
(a) if a person, regardless of nationality, domiciled in one of these States, for example France, is called to appear before a court of another of these States, for example Italy. The nationality and domicile of the applicant shall not be taken into account;
(b) if a judgment is rendered in a Member State of the European Communities, for example France, and must be recognized or executed in another State, for example Italy.
The Brussels Convention also applies if a person domiciled outside the territory of a Member State of the European Communities and outside the territory of any other State Party to the Lugano Convention, for example in the United States of America, is quoted to appear before a court in one of the Member States of the European Communities (Article 4 of the Brussels Convention).
In each of these three cases, the Court of Justice of the European Communities is competent, in accordance with the 1971 Protocol, to decide on the problems of interpretation of the Brussels Convention that may arise.
16. However, according to paragraph 2, a judge of a Member State of the European Communities must apply the Lugano Convention:
1° if the defendant is domiciled in the territory of a State that is a party to the Lugano Convention and a member of the EFTA or is supposed to be domiciled there under Articles 8 or 13 of the Convention. For example, if a person domiciled in Norway is summoned to appear before a French court, the court will only be competent in the cases provided for in the Lugano Convention. Notably the so-called exorbitant rules of jurisdiction provided for in Article 4 of the Brussels Convention may not be invoked with respect to that person;
2° if there is an exclusive jurisdiction (Article 16) or an extension of court (Article 17) giving jurisdiction to the courts of a member State of the EFTA. The courts of the Member States of the European Communities, for example, may not be aware of a dispute in respect of real rights relating to an immovable situated in the territory of a State party to the Lugano Convention and a member of the EFTA, notwithstanding the provisions of Article 16 (1) of the Brussels Convention which applies only if the immovable is located in the territory of a State Party to the 1968 Convention;
3° if it is to have a judgment in a State party to the Lugano Convention and member of the EFTA in a member country of the Communities, in a country member of the Communities.
This paragraph 2 also provides that the Lugano Convention applies if it is to enforce in a member State of the EFTA party to the Lugano Convention, a judgment rendered in a Member State of the Communities.
This provision does not resolve any conflicts between the two conventions but is intended to clarify their respective scope. It is, indeed, obvious that if a judgment has been rendered in a State Party to the Lugano Convention and a member of the EFTA and must be enforced either in a Member State of the Communities or in a Member State of the EFTA, the Brussels Convention is not applicable.
4° Section 54ter also contains provisions relating to litispendance (see Article 21) and connexity (see Article 22). Pursuant to paragraph 2 (b) of Article 54ter, the judge of a Member State of the Communities shall apply these articles of the Lugano Convention if a judge of a member State of the EFTA is seized of the same dispute or a related application.
These provisions, which have also been inserted for the sake of precision, are twofold concerns: on the one hand, that of deviating any uncertainty and, on the other, that of avoiding conflicting decisions in the various States concerned.
5° Finally, Article 54ter provides in its paragraph 3 that the judge of a member State of the EFTA may refuse to recognize or enforce a judgment rendered in a member State of the communities where the judge of the EFTA has based his jurisdiction on a leader not provided for in the Lugano Convention and that the party against which the recognition is invoked or the prosecution is domiciled in the territory of a member State of any Contracting State of the
This case of refusal is in addition to those provided for in Article 28. This is essentially a guarantee that was requested by the EFTA member states. Assumptions may be considered relatively rare, since with respect to the rules of jurisdiction, both conventions are very close to each other. They are nevertheless possible. Such would, for example, be the case, with respect to a decision made in respect of a contract of work, if the judge of a member country of the Communities had, by mistake, based his jurisdiction with respect to a person domiciled in a member State of the EFTA either on article 4 or article 5 paragraph 1 of the Brussels Convention that is, in a sense not in conformity with article 5 (1)
However, in order to promote the free movement of judgments, the decision will be recognized and enforced if it may be based on the rules of common law in force in the requested State, especially with regard to the rules of jurisdiction of foreign courts.
6° For reasons of ease, we used in the above examples the expression "ETA member states". It goes without saying that the same regime is applicable to States which, without being members of the EEC or EFTA, would have acceded to the Lugano Convention [see article 62 paragraph 1 (b).
17. The question of what it is about the application of the Lugano Convention between Member States of the Communities, one of which would not be a party to the Brussels Convention, for example, Spain or Portugal, while both would be parties to the Lugano Convention, remained open. This would be the case, for example, if Belgium and Spain were both parties to the Lugano Convention before the Treaty of Accession of Spain to the Brussels Convention was concluded or entered into force and the exercise of a judgement rendered in one of the two States was requested in the other. In the view of the rapporteurs, the Lugano Convention, as a source of law, would be applicable, in the example cited, pending the entry into force between Belgium and Spain of the Treaty of Accession of Spain to the Brussels Convention.
CHAPTER III
SPECIAL PROVISIONS OF THE LUGANO CONVENTION BY REPORT TO THE BRUXELLES CONVENTION
1. SUMMARY OF CES PROVISIONS
18. The changes are not numerous. Before we examine them in an exhaustive manner, we believe it useful to quote the articles of the Lugano Convention which are different from the corresponding articles of the Brussels Convention.
Article 3
This article adds the rules of exorbitant jurisdiction in force in the EFTA member states and Portugal. It should be observed that such rules do not exist in Spain.
Article 5 (1)
A special provision has been inserted for the employment contract.
Article 6
A new paragraph 4 is related to the junction of an action in rem and an action in persona.
Article 16
The subject matter of rented leases is the subject of a new provision in paragraph 1 (b) and a reserve (Protocol No. 1, Article I ter).
Article 17
This article is amended with respect to the reference to commercial x-use and labour contracts.
Article 21
The statement of this article on litispendance has been somewhat modified.
Rule 28
This article was supplemented by adding causes of refusal of recognition and enforcement.
Articles 31 to 41
Technical amendments have been made to some of these articles which concern the exequatur procedure and the use of remedies.
Rule 50
The drafting of this article concerning authentic acts was slightly modified.
Rule 54
Details were made in this article, which concerns transitional provisions.
Article 54 bis
This article, inspired by article 36 of the 1978 accession agreement, was completed.
Article 54 ter
This article is new and regulates the respective fields of application of the Brussels Convention and the Lugano Convention.
Rule 55
This article, which concerns relations with other conventions, mentions only the conventions to which EFTA member states are parties.
Rule 57
This article on the application of conventions concluded in particular matters is significantly different from Article 57 of the Brussels Convention.
Article 60-68 (Final provisions)
These articles have been amended.
19. Protocol No. 1
Article Ibis
This new article contains a reservation requested by the Swiss delegation.
Article Iter
This new article contains a reservation resulting from the amendment to section 16, paragraph 1, concerning rent leases.
Article V
This article on requests for guarantees has been supplemented to take into account the laws in force in several States.
Article Vbis
This article on the subject of food obligations has been supplemented to take into account the situation in several States.
Article Vter
This article on disputes between the master and a member of a ship's crew was also supplemented to reflect the legislation of several states.
20. Protocol No. 2
This protocol has been introduced to ensure, to the extent possible, a uniform interpretation of the Lugano Convention and the provisions of this Convention and the corresponding Brussels Convention.
21. Protocol No. 3
This protocol addresses the problem posed by community actions.
22. Statements
First declaration: it completes Protocol No. 3.
Second and third statements: it supplements Protocol No. 2 on the uniform interpretation of the Lugano Convention.
2. EXHAUSIVE REVIEW
TITRE PREMIER
CHAMP OF THE LUGANO CONVENTION (Article 1^er)
23. As no amendments have been made to the Brussels Convention, reference should be made to the Jenard and Schlosser reports.
PART II
COMPETENCE (Articles 2 to 24)
Section I
General provisions (articles 2 to 4)
(a) Opening remarks
24. The proposed formal adaptations for articles 2 to 4 are limited to mentioning, in article 3 second paragraph, the exorbitant powers existing in the legal systems of the EFTA member states and Portugal. As in the Schlosser report, a specific brief explanation of the proposed additional provisions (see paragraph 1) will be followed by two more general remarks regarding the place of these provisions in the general structure of the Lugano Convention.
(b) Exorbitant rules of jurisdiction existing in EFTA member states and Portugal
1. Austria
25. Section 99 of the Judiciary Jurisdiction Act (Jurisdiktionsnorm) provides that any person who has neither his or her home nor his or her habitual residence in Austria may be appealed to the court of the place where he or she has property or in which the property that is the subject of the dispute is located. However, the value of the property in Austria cannot be significantly lower than the value in dispute.
Institutions, foundations, societies, cooperatives and other foreign associations may, in accordance with the aforementioned article (paragraph 3), also be appealed to the court of the place where they have their permanent representation in Austria or an agency.
2. Finland
26. Chapter 10, article 1^er Second sentence of the Finnish Code of Judicial Procedure, it is anticipated that a person who has no habitual residence in Finland may be appealed to the court of the place where the inductive act of proceeding has been notified to him or to the court of the place where it has property. The third sentence of this article provides that a Finnish national who resides abroad may also be brought before the court where he had his last residence in Finland. The fourth sentence of this article states that a foreign national who has neither his home nor his residence in Finland may be appealed to the court of the place where the induction of proceedings has been notified to him or to the court of the place where he or she owns property, unless there is a particular provision of effect contrary to the nationals of a particular State.
3. Iceland
27. Article 77 of the Icelandic Civil Procedure Code provides that in matters of heritage, if the creditor is a national, including a legal person, any person who is not domiciled in Iceland may be appealed to the court of the place where the introductive act of proceeding has been notified to him or to the court of the place where that person has property.
4. Norway
28. Section 32 of the Norwegian Civil Action Act states that in respect of heritage property any person not domiciled in Norway may be appealed to the jurisdiction of the place where he or she owns property or the place where the property objects of the dispute are located at the time the proceedings were notified to him or her.
5. Sweden
29. The first sentence of chapter 10, section 3, of the Swedish Code of Judicial Procedure provides that any person who has no domicile known in Sweden may, in the matter of payment of debt, be brought before the court of the place where they own property.
6. Switzerland
30. Article 4 of the Federal Law on Private International Law provides that, in the absence of another provision on jurisdiction in the Swiss law, a sequester validation action may be introduced to the Swiss Sequester.
7. Portugal
31. Section 65 of the Code of Civil Procedure provides that a foreign national may be appealed to a Portuguese court when
- paragraph 1 (c) the applicant is Portuguese and, in the opposite situation, it could be appealed to the courts of the State of which the defendant is a national,
- (paragraph 2) according to Portuguese law, the competent court would be that of the domicile of the defendant, if the defendant is a foreigner who has been in Portugal for more than six months or is accidentally in Portuguese territory, provided, in the latter case, that the obligation that constitutes the subject of the dispute has been contracted in Portugal.
Article 65 letter A point (c) of the Code of Civil Procedure attributes exclusive jurisdiction to the Portuguese courts for labour relations actions if one of the parties is of Portuguese nationality.
Article 11 of the Labour Procedure Code gives jurisdiction to the Portuguese labour courts for disputes concerning a Portuguese worker, when the contract was entered into in Portugal.
(c) Place of Article 3 second paragraph in the general structure of the Lugano Convention
1° Scope of Article 3, second paragraph
32. The fact that important rules of jurisdiction currently in force in the different states are described as exorbitant shall not, more than in Article 3 second paragraph of the 1968 Brussels Convention, incite to conclude in an erroneous manner on the scope of Article 3 first paragraph. What is explicitly emphasized is only a finding of a claim considered to be abusive of international jurisdiction in favour of the jurisdictions of a Contracting State. Other rules of jurisdiction of the domestic law of the Contracting States shall, too, be compatible with the Lugano Convention only if it respects Articles 2 and 4 to 18. For example, in respect of persons domiciled in a Contracting State, the jurisdiction of Swedish courts shall no longer be based, in contractual matters, on the fact that the contract was entered into in Sweden.
2° Inability to establish jurisdiction over the location of heritage property
33. For Austria, Denmark, Finland, Germany, Iceland, Norway, Sweden and the United Kingdom, the list of Article 3 second paragraph contains rules on the unacceptable nature of a jurisdiction based on the mere presence of property in the territory of the State of jurisdiction. Such jurisdiction may no longer be invoked where the action relates to the property, possession or ability to dispose of such heritage property.
34. With regard to Switzerland, the list of the second paragraph contains a rule excluding jurisdictional jurisdiction based on the simple sequester of property located in Switzerland. However, there is no objection to the granting by the Swiss courts, in accordance with Article 24, of interim and provisional measures provided for by Swiss law, even if under the agreement the courts of another Contracting State are competent to determine the merits.
35. With regard to persons domiciled outside the Contracting States, the provisions applicable so far in the Contracting States in matters of jurisdiction remain unchanged. Even the rules of jurisdiction specified in Article 3 second paragraph may continue to be applied to them. Furthermore, the judgments pronounced by courts whose jurisdiction has been so established must be recognized and enforced in other Contracting States, unless it is one of the exceptions provided for in Article 27, paragraph 5 or Article 59 of the Convention.
The latter provision is the only one for the application of which the list of Article 3 second paragraph not only has an example value, but also a constitutive and limitative meaning.
Section 2
Special competencies (articles 5 and 6)
(a) Article 5, paragraph 1 - Work contract
36. The defendant's domicile is the basic rule of both the Brussels Convention and the Lugano Convention.
However, section 2 (articles 5 and 6) of title II on jurisdiction contains a number of complementary provisions. Accordingly, the applicant may, at his or her choice, bring the action either before the court designated in that section or before the courts of the State where the defendant has his or her domicile (art. 2).
Article 5, paragraph 1, of the Brussels Convention provides that the defendant may be assigned "in contractual matters before the court of the place where the obligation that serves as the basis for the application has been or must be enforced".
37. This paragraph applies with respect to the contract of work (see the Jenard report on page 24 and chapter VI: Judgment of the Court of Justice of 13 November 1979, Sanicentral-Collin, according to which the right of work is part of the scope of the convention). Called to take action on this matter, the Court of Justice has decided that the obligation to consider, in the case of applications based on different obligations arising from a representation contract that binds a dependent worker to a company, is that which characterizes the contract, that is, the place where the work is performed (Court of 25 May 1982, Ivenel/Schwab, see Chapter VI).
This decision, in particular, took into account Article 6 of the Rome Convention on the Law Applicable to Contractual Obligations (OJ No. L 266 of 9. 10. 1980, p. 1), which provides that in the matter of contract of employment the contract is governed, in the absence of choice of the applicable law, by the law of the country where the worker, in execution of the contract, usually performs his work, unless the contract has closer ties with another country. In its above-mentioned ruling, the Court noted that the purpose of this provision is to provide adequate protection to the party who is to consider, from a sociological point of view, as the lowest in the contractual relationship see also the Giuliano-Lagarde report (OJ No. C 282 of 31 October 1980, page 1).
In another judgment, the Court of Justice has specified that labour contracts, as well as other contracts relating to dependent work, present in relation to other contracts, even where they are related to services benefits, certain particularities in that they create a lasting link that inserts the worker in the context of a certain organization of the business of the company or of the employer and in that they are located in the place of the exercise of the business
The EFTA member states asked during the negotiation of the Lugano agreement that the subject matter of the contract of work shall, with respect to Article 5 and Article 17 (for the latter article, see infra No. 60), be subject to an autonomous provision.
This request was granted.
38. Under new section 5, paragraph 1, of the contract of employment, the place where the obligation, which serves as the basis of the application, was or is to be performed where the worker usually performs his or her work. If he does not usually perform his work in the same country, this place is where the establishment hired him. Note that the Court of Justice is currently seized of such a matter (see Chapter VI, Six Constructions-Humbert case).
As can be seen, this provision is in line with the previous judgments of the Court of Justice and is closely related to article 6 of the Rome Convention (5).
39. The accuracy of section 5 (1) requires the following comments:
According to the general economy of the Lugano agreement, are therefore competent in case of disputes between employers and workers:
- the courts of the State where the defendant has his domicile (art. 2),
- the court referred to in section 5 (1). If a worker usually performs his or her work in the same country, but without doing so in a particular place, the domestic law of that country will determine the competent court,
- the court which has been extended on a treaty basis but after the birth of the dispute (see article 17, paragraph 5),
- the court extended tacitly (art. 18).
However, these rules apply only if the dispute contains an element of extraneousness. Conventions only establish rules of jurisdiction in international order (see preamble). They do not have an impact if the contract (employer's home, worker's home, workplace) is implemented in a single country. In this area, the nationality of the worker must not be taken into account, which must be considered to be similar to other workers.
On the other hand, if the defendant has his domicile outside the territory of one of the Contracting States, Article 4 is applicable.
40. When the defendant does not usually complete his work in the same country, the court of the place where the institution that took it will be competent. This solution is consistent with that provided for in Article 6 (2) (b) of the Rome Convention on the Law Applicable to Contractual Obligations.
It is justified by the desire to avoid an increase in the number of competent courts in disputes between employers and workers when the worker is called to perform his work in several countries. Moreover, for States parties to the Rome Convention and the Lugano Convention, there will therefore be a junction between jurisdiction and the law to be applied. The same is true in some States that are not parties to the Rome Convention.
41. The question of whether there is a contract of employment is not settled by the agreement. As soon as the judge concerned responds by the affirmative to this question, he shall apply the second part of article 5, paragraph 1, which constitutes a specific provision. Although there is not, so far, a self-contained notion of the employment contract, it can be considered that it involves a worker's dependence on the employer (see Chapter VI, Shenavai/Kreischer judgements already cited and Arcado/Haviland of March 8, 1988).
42. Article 5 (1) deals only with individual labour relations and not collective agreements between employers and workers' representatives.
43. The term "institution" must be understood in a broad sense and includes any entity such as a branch or agency that does not have a legal personality.
44. In conclusion, it may be considered that although the texts of the Brussels Convention and the Lugano Convention are not identical, there is nevertheless convergence because of the interpretation given by the Court of Justice in Article 5 paragraph 1 of the Brussels Convention.
(b) Article 6, paragraph 1 - Plurality of defendants
45. No amendment was made to the text of the Brussels Convention which provides that "a defendant domiciled in the territory of a Contracting State may be appealed, if there are several defendants, to the court of the domicile of one of them". This provision was, however, taken up only on the basis of the comment contained in the Jenard report on the 1968 Convention (OJ No. C 59 of 5.3.1979, p. 26) that "the application of this rule requires that there be a link between the requests made against each respondent, for example, whether it be in solidarity defendants. As a result, an application can only be filed to subtract one of the defendants from the courts of the State where it is domiciled." A few days after the diplomatic conference, a decision of the Court of Justice in this direction was published (stop of 27 September 1988, Kalfelis/Schröder, see chapter VI, OJ No. C 281 of 4 November 1988, page 18).
(c) Article 6, paragraph 4 - Jonction of actions in rem and in persona
46. When a person holds a mortgage on a building, the owner of that building often also has a personal obligation under the secured debt. This is why the right of some states allows to join an action concerning the personal obligation of the owner to an action for the forced sale of the building. This obviously implies that the court of the place where the building is located is also competent to hear actions concerning the owner's personal obligation.
It was felt that it was practical to be able to join an action concerning the personal obligation of the owner of a building to an action for the forced sale of that building in the states where such a junction is possible. It therefore seemed appropriate to include in the agreement a provision under which a person domiciled in a Contracting State may also be appealed in contractual matters, if the action may be attached to an action against the same defendant in respect of real property rights, before the Court of the Contracting State in which the building is located.
To illustrate this point, assume that a person domiciled in France is the owner of a building located in Norway. This person contracted a loan that is guaranteed by a mortgage encumbering his building in Norway. If the creditor, provided that the loan is not refunded on the due date, wishes to bring an action for the forced sale of the immovable, the Norwegian court has exclusive jurisdiction under Article 16 (1). However, pursuant to this provision, the court is more competent to hear an action against the owner of the immovable and its personal debt obligation, if the creditor wishes to join the latter in an action for the forced sale of the immovable.
47. It goes without saying that this rule of jurisdiction is not enough for itself. It must necessarily be supplemented by legal criteria setting the conditions under which such a junction is possible. Thus, the Lugano Convention does not affect the provisions that already exist or that may be introduced in the future in the legal systems of the Contracting States with regard to the junction of the actions mentioned above. However, it is unnecessary to specify that the two joint actions referred to in this paragraph must have been brought by the same appellant.Of course, the term "even appellant" also includes a person to whom another person has transferred his or her rights or cause.
Sections 3 and 4
Competence in insurance (sections 7 to 12 bis) and consumer contracts (sections 13 to 15)
48. As no changes have been made to these sections, reference should be made to the Jenard and Schlosser reports.
Section 5
Exclusive
Article 16, paragraph 1 - Rent leases
49. Under Article 16 (1) of the Brussels Convention, only the courts of the Contracting State in which the building is located are competent in respect of real property rights or leases of buildings. The wording adopted not only applies to all disputes relating to real property rights, but also to property leases. According to the Jenard report (page 35), the committee that drafted the Brussels convention heard about disputes between donors and tenants regarding the existence or interpretation of leases or the repair of damage caused by the tenant, the evacuation of premises, etc. According to this committee, the set rule does not apply to shares intended solely for the purpose of paying rent, which may be considered to be detached from the leased building.
However, the Schlosser report (paragraph 164) states that the working group that drafted the convention on the accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention and the protocol concerning its interpretation by the Court of Justice could not reach a consensus on whether the actions relating exclusively to rents, i.e., to exclude simple cases of recovery of Article 1.
As the Jenard report specifies, the leases of residential or commercial use, commercial leases and rural leases must be heard by building leases. According to the Schlosser report, the legis ratio of the provision certainly does not require that it be applicable to the contract of assignment of use for a limited period of time, particularly for the purpose of a holiday stay.
50. The Court of Justice of the European Communities has established that Article 16 (1) does not cover disputes relating to the transfer of a right of exploitation on an immovable property (decision of 14 December 1977, Sanders/Van der Putte, see Chapter VI). The Court stated that section 16 (1) should not be construed as including the case of a contract relating to the operation of a trade in a building leased by a third party lessor. However, deviating from the will of the authors of the 1968 Convention, the Court recently established that the exclusive jurisdiction provided for in article 16, paragraph 1, also applies to all shares relating to the payment of rent, including in the case of limited vacation rentals (sentence of 18 January 1985, Rosler/Rottwinkel, see chapter VI). The Court held that this exclusive jurisdiction is applicable to any lease agreement of a building, even for a limited period of time, and even if it relates only to an assignment of use of a holiday home and that this jurisdiction extends to all disputes concerning the respective obligations of the lessee and the lessee arising out of the lease contract, and in particular those relating to the existence or interpretation of leases, their duration, the restitution of the property This decision seems at least partially in contradiction with the intention that, according to the Jenard and Schlosser reports, was that of the authors of the Brussels Convention.
51. Referring in particular to the decision of the Court in the Rosler/Rottwinkel case, the EFTA member states insisted that a special provision should be included in the Lugano Agreement concerning leases of limited-term buildings. As an alternative, these States have suggested that the leases in the scope of the convention or more specifically in Article 16. The working group agreed that it was not appropriate to completely exclude leases from the scope of the convention because of the interest in this matter. As to exclude them from article 16 in particular, the delegations of the Member States of the Communities found this solution totally unacceptable because the normal rules of competence of the convention would have been applicable to building leases, which opposed all the conceptions existing in this regard, at least in those States. Accordingly, the working group decided to insert a new item (b) in article 16, paragraph 1, containing a special provision on limited-term leases.
52. The result of this amendment is that two exclusive jurisdictions, which could be described as alternative exclusive skills, will exist in terms of rent leases. According to point (a) will always be competent and without any restrictions, the courts of the Contracting State in whose territory the building is located. However, according to point (b), in respect of leases of immovable property for temporary personal use for a period of up to six consecutive months, which mainly applies to contracts concluded for vacation purposes, the applicant may also apply to the courts of the Contracting State in whose territory the defendant has his domicile. This faculty is only open to it if the tenant (and not the owner) is a natural person and, moreover, only if none of the parties to the contract is domiciled in the Contracting State where the building is located.
Legal persons as tenants were excluded as they usually engage in commercial operations.
On the other hand, if one of the parties is domiciled in the Contracting State in which the building is located, he appeared to stick to the rule of Article 16 (1) which lays down the principle of the jurisdiction of the courts of that State.
53. Article 16, paragraph 1 (b), however, created serious political difficulties for some Member States of the Communities. To overcome these difficulties, the working group agreed that this provision should be accompanied by a possibility of reservation. This will allow any Contracting State to declare that it will not recognize or enforce a decision in respect of leases of immovables if the building concerned is located in its territory, even if the lease is of the type referred to in Article 16 (1) (b) and if the jurisdiction of the original jurisdiction is based on the domicile of the defendant. This reservation is contained in Article I ter of Protocol No. 1.
This possibility of reservation only concerns cases in which the building is located in the requested State. Thus, if Spain, for example, resorts to this possibility, it does not mean that it has the right to refuse the recognition or enforcement of a decision rendered in an action that has the purpose of a lease of the type referred to in Article 16 (1) (b) if the building is located in another State, for example in Italy, and that the judgment is rendered by a court in a third State where the defendant has his domicile, for example Sweden. The fact that the State where the building is located has made use of the possibility of reservation is of no importance in this case.
It is understood, however, that a State that wishes to use the reservation may formulate a reservation narrower than that expected. A State may, for example, declare that the reservation is limited if the owner is a legal entity.
54. The provisions of Article 16 (1) apply only if the building is located in the territory of a Contracting State. The text is sufficiently explicit in this regard. If the building is located in the territory of a third State, the other provisions of the agreement shall apply, for example, Article 2 if the defendant is domiciled in the territory of a Contracting State, and Article 4 if he is domiciled in the territory of a third State, etc.
Section 6
Extension of jurisdiction (articles 17 and 18)
(a) Article 17 - Conventional extension
55. The first paragraph of this article is primarily concerned with the formal requirements to be met by the jurisdictional attributable conventions. The question of whether an attributive jurisdiction agreement has been validly concluded (e.g., consent) must be settled by the applicable law (see the decision of the Court of Justice of 11 November 1986, Iveco Fiat/ Van Hool, see chapter VI). As to whether such a convention may be validly concluded in particular matters, it should be observed that the Court of Justice (sentence of 13 November 1979, Sanicentral/Collin, see chapter VI) has decided that domestic procedural laws are excluded in matters governed by the Convention for the benefit of the provisions of the Convention.
56. According to the original text of Article 17 of the Brussels Convention, an attributive jurisdiction agreement must be concluded either in writing or verbally with written confirmation. In the light of the interpretation given by the Court of Justice of the European Communities in some of its first judgments concerning Article 17 of the Brussels Convention (see Chapter VI), the working group that elaborated the 1978 convention on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention and the Protocol of 3 June 1971 concerning its interpretation by the Court of Justice met the needs of the European Union. It therefore seemed necessary to soften them with regard to the attributable conventions of jurisdiction in international exchanges. Under Article 17 (1) of the Brussels Convention as amended by the 1978 accession agreement, an attributive jurisdiction agreement may be entered into in international trade in a form that is accepted by the uses in this field and that the parties know or are expected to know.
57. During negotiations on the Lugano Convention, however, EFTA member States considered that this provision was too vague and could lead to a lack of legal security. These States feared that paragraph 1 of Article 17 could not, with respect to the jurisdictional attribute conventions in international trade, allow for a convention to be considered as accepted by the mere fact that no objection would have been raised against an attributive clause of jurisdiction contained in certain unilateral declarations from a single party, for example in an invoice or under general terms of sale varing confirmation of the contract. For this reason, EFTA member states proposed for the second sentence of the first paragraph of Article 17 the following amendment:
"This jurisdictional attribute convention is:
(a) be concluded in writing (or verbally with clear confirmation in writing) including an exchange of letters, telegrams and telex (or any other modern communication technology);
(b) be inserted or mentioned in a lading or similar transport document. »
The representatives of the member States of the Communities, however, considered that this proposal would not only lead to excessive rigidity but, in addition, would be the case law of the Court of Justice of the European Communities that it should be possible to take into account special practices (seat of 14 December 1976, Segoura/Bonakdarian, see chapter VI).
58. Paragraph 1 (c) of Article 17 of the Lugano Convention is based on Article 9(2) of the 1980 United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention). Since the member States of the European Economic Community and EFTA States may join this convention, the working group considered it desirable to align in this regard the text of Article 17 on that of Article 9 paragraph 2 of the Vienna Convention. It may be considered that this provision constitutes a compromise between the two groups of States.
First, under paragraph 1 (b) of Article 17 of the Convention, an attributive jurisdiction agreement shall meet the formal conditions if it is entered into in a form that conforms to the habits established by the parties. This provision is not included in the text of Article 17 of the Brussels Convention. However, in the light of the jurisprudence of the Court of Justice of the European Communities (see Chapter VI), it seems that this is the meaning of Article 17 of the Brussels Convention. The working group considered that this meaning should be explicitly reflected in the text of the Lugano Convention.
Secondly, in international trade, an attributive jurisdiction agreement fulfils the formal requirements if it is concluded in a form that is in conformity with a use of which the parties were aware or believed to have knowledge and which is widely known and regularly observed in this type of trade by the parties to contracts of the same type in the trade industry.
Thus, even in international trade, it is not enough that an attributive convention of jurisdiction is concluded in a form that is consistent with the habits (or usage) in force in this type of trade and which the parties were aware of or were supposed to be aware of. In addition, this use must be, on the one hand, widely known in international trade and, on the other hand, regularly observed by the parties to contracts of the same type in the trade industry concerned.
In particular, given the words "International Handelsbrauche" and "use" which are used in the German and French versions of Article 17 of the Brussels Convention, there seems to be no major substantive differences between the relevant provisions of the two conventions. The EFTA states, however, considered that in order to ensure uniform interpretation it was necessary to adopt the formula currently provided for in paragraph 1 (c) of the Lugano Convention.
59. Article 17 of the Brussels Convention gave rise to a large number of judgments of the Court of Justice of the European Communities. In this regard, we refer to chapter V1.2 point 12 article 17 no. 1 to 12.
However, it is useful to recall in this context that the Court of Justice has established that a convention between the parties and dealing with the place of execution, which constitutes a basis of jurisdiction under Article 5 (1), is sufficient to assign a jurisdictional jurisdiction and is not subject to the conditions of form provided for the extension of jurisdiction to Article 17 (decision of 17 January 1980, Zelger/Salinitri, see Chapter VI).
60. Paragraph 5 of Article 17 was proposed by the EFTA member states. It states that in the matter of labour contracts, the attributable conventions of jurisdiction within the meaning of the first paragraph are only allowed if they are after the birth of the dispute. The underlying concept of this provision is the same as in section 5, paragraph 1, that is, the protection of an employee who, from an economic and social perspective, is considered to be the weakest element in the contractual relationship. It was desirable that the protection intended to be afforded to employees under section 5, paragraph 1, should not be withdrawn by attributable jurisdiction agreements concluded prior to the birth of the dispute. Like section 5, paragraph 1, this provision applies only to individual labour relations and not to collective agreements between employers and workers' representatives.
61. At the diplomatic conference, the discrepancy between the Brussels Convention and the Lugano Convention with regard to the jurisdictional conventions relating to the labour contract was highlighted and some difficulties were highlighted. The example that was given is that of an attributive convention of jurisdiction which, at the time it intervened, was concluded between parties domiciled in the territory of two States having ratified the Brussels Convention. According to the latter convention, the treaty extension of the forum may, for a contract of work, intervene before the dispute arises.
Who if, later, one of the parties resides in a member state of the EFTA? What will be the attitude of the judge of the Member State of the Communities seized on the basis of this attributive convention of jurisdiction, or of the judge of a member State of the EFTA seized in spite of this convention?
The question was left open and could, although the solutions adopted by both the Brussels Convention and the Lugano Convention were not without merit, be eventually settled in the accession agreement of Spain and Portugal to the Brussels Convention in the sense of alignment of the Brussels Convention with the Lugano Convention.
(b) Article 18 - Tacite prorogation
62. Differences were found between the different versions of the Brussels Convention. Thus, some versions, such as those in English and German, provide that the jurisdiction of the judge of the Contracting State does not apply if the appearance was "only" in order to contest jurisdiction, a restriction that does not appear in the French text.
However, no amendments were made to the various texts, as a result of a judgment rendered by the Court of Justice of the Communities that section 18 is applicable, under certain conditions, when the defendant contests the jurisdiction of the court and concludes, in addition, on the merits (June 24, 1981, Elefanten Schuh/Jacqmain, see chapter VI).
Section 7
Audit of jurisdiction and admissibility (arts. 19 and 20)
63. Although these articles correspond to Articles 19 and 20 of the Brussels Convention, Article 20 calls for some comments as this is a particularly important provision in the event of the defendant's default (see Jenard Report, p. 39).
The judge called for the application of the Lugano Convention shall, on his or her own motion, declare that he or she is incompetent first if his or her jurisdiction is not founded under heading II, sections 2 to 6 of that Convention. For example, the French judge before whom a person domiciled in Norway would be required to appear on the basis of Article 14 of the Civil Code (competition based on the applicant's French nationality) must, in the event of the defendant's default, declare himself ex officio.
Similarly, the judge shall declare himself ex officio incompetent if his jurisdiction is not founded under an international convention that, in particular matters, regulates judicial jurisdiction, as provided for in paragraph 2 of Article 57. In this regard, reference should be made to the commentary to article 57.
Indicative. Let us note that almost all Member States of the European Communities and EFTA are currently parties to the Hague Convention of 15 November 1965 on the meaning and notification of judicial and extrajudicial acts in civil and commercial matters since the only exceptions are, as of 1^er June 1988, Austria, Ireland, Iceland and Switzerland.
Section 8
Litispendance and connexity (articles 21-23)
64. Article 21
Only this article was amended in section 8.
Article 21 of the Brussels Convention provides that, in the event of litispendance, the court seized in the second place must, even on the other hand, stand in favour of the first court before it and may suspend to rule whether the jurisdiction of the other jurisdiction is contested.
The representatives of the EFTA member states felt that this solution was too radical.
They observed that it is common for an action to be filed to comply with a time limit or to interrupt the prescription and that notices differ on whether a time limit is met when the action is brought to an internationally incompetent forum.
Thus, in their view, if the action is brought before a judge who would be competent but secondly seized, the judge should defer the case to the court of first instance. However, this court could eventually decide that it is not competent. In this case, both actions would be excluded with the consequence that the deadlines could be exhausted and the action prescribed.
These remarks were taken into consideration.
Section 21 has been amended in that the second-place jurisdiction overseoira to rule until the jurisdiction of the first judge is established.
The judge, secondly, will only be in favour of the court of first instance when the court ' s jurisdiction has been established (see the Schlosser report, paragraph 176).
The Court of Justice has ruled that the notion of litispendance referred to in Article 21 " covers the case in which a party brought before a jurisdiction of a Contracting State an application for the annulment or resolution of an international sale contract while a request of the other party for the execution of that contract is pending before a jurisdiction of another Contracting State" (sentence of 8 December 1987, Guum).
Section 9
65. Article 24 - Provisional and provisional measures
Since this provision has not been amended, reference should be made to the Jenard reports, page 42 and Schlosser, paragraph 183.
PART III
(Articles 25 to 49)
Section I
Recognition (articles 26 to 30)
(a) Article 27, paragraph 5
66. Section 27, paragraph 5, deals only with the case where the decision whose recognition is. requested is inconsistent in the requested State with a decision previously rendered in a non-contracting State and likely to be recognized in the requested State.
Where a decision rendered in a Contracting State would be inconsistent with a decision previously rendered in another Contracting State and likely to be recognized in the requested State is not expressly referred to, nor is it specifically referred to in the Brussels Convention. It was considered that these cases should be quite exceptional because of the mechanisms provided for in title II and in particular articles 21 and 22 in order to avoid conflicting decisions. If such an eventuality should nevertheless arise, it will be the duty of the judge of the requested State to enforce its rules of procedure and general principles derived from the convention to refuse to recognize and enforce the decision subsequently rendered to the recognition of the first decision. In fact, it could be considered that, having already been recognized in the requested State, the first decision must produce the same effects as a decision rendered by the courts of that State, as provided for in paragraph 3 of Article 27.
(b) Rule 28
67. Two reasons for refusal were added. They refer to the cases provided for in articles 54 ter and 57 which should be referred to.
Section 2
Implementation (articles 31-45)
(a) Article 31
68. According to the first paragraph of this article as contained in the Brussels Convention, "the decisions rendered in a Contracting State and enforceable therein shall be enforced in another Contracting State after they have been put into effect by the enforceable formula upon request of any interested party". Since the law of the United Kingdom does not know the system of the exequatur of foreign decisions, the second paragraph of this article states that these decisions are implemented in England and Wales, Scotland or Northern Ireland, after being registered for execution, upon request of any interested party, in either of these parts of the United Kingdom, following the case (see Schlo report).
69. In Switzerland, there is a need to distinguish between judgments on a monetary conviction and those that condemn benefits other than a payment of a sum of money. Execution of judgments on conviction to pay a sum of money is governed by sections 69 et seq. of the Federal Law on Debt Prosecution and Bankruptcy (LP). Sections 80 and 81 of the PCA require the production of enforceable civil judgment for forced execution. With regard to foreign judgments concerning a pecuniary conviction, a procedure for exequatur is only necessary if they arise from a State that has not concluded a treaty of recognition and enforcement with Switzerland. If such a treaty exists, a foreign judgment condemning a payment is enforceable in the same way as a Swiss judgment. Only exceptions provided for in the Convention in question (article 81 third paragraph of the PCA) may be raised.
A foreign judgment condemning a benefit other than a payment is executed according to cantonal law, even if there is a treaty with the State concerned. In general, the cantonal rules on the enforcement mandate are then applicable. In the context of the convention, Switzerland stated that it intended to continue to grant the preferential treatment enjoyed by judgments on a monetary conviction.
The working group recognized that the wording adopted for Article 31 first paragraph of the Brussels Convention corresponded to the legal system of the six Member States originating from the European Communities and could create problems for States with enforcement procedures different from those of those six States. Accordingly, and to take into account in particular the position of Switzerland, the term "coated with the enforceable formula" in Article 31 first paragraph of the Brussels Convention was replaced in the Lugano Convention by the words "declared enforceable".
(b) Articles 32 to 45
70. The formal adaptations made under articles 32 to 45 relate exclusively to the competent courts and the types of remedies that may be brought against their decisions.
In Iceland and Sweden only one jurisdiction was declared competent for applications for exequatur. In Sweden, it is a practice in this country that the "Svea hovrätt" is competent to declare enforce foreign judgments and arbitral awards rendered abroad.
Where the party against which the execution is requested wishes to challenge the enforcement authorization, it must appeal not, as in most Contracting States, to a higher degree of jurisdiction but, as in Austria, Belgium, Ireland, Italy, the Netherlands and the United Kingdom, to the same jurisdiction as that which declared the enforceable judgment. The procedure will take the form of a conflicting civil trial. This also applies to the appeal that the applicant may file if his request is rejected.
Section 3
Common provisions (arts. 46-48)
71. As no amendments have been made to the provisions of this section, reference should be made to the Jenard reports (pp. 54-56) and Schlosser (para. 225).
PART IV
AUTHENTIC ACTS AND JUDICTIONS (articles 50 and 51)
Article 50 - Authentic acts
72. The representatives of the EFTA member states were able to agree on the text of Article 50, although the notion of authentic act was not resumed in their legislation, except in Austria.
However, they requested that the report specify the conditions for an authentic act to be considered authentic within the meaning of section 50 (see the Schlosser report, paragraph 226).
These conditions are as follows:
- the authenticity of the act must have been established by a public authority,
- this authenticity must concern its content and not only, for example, its signature,
- the act must be enforceable by itself in the state in which it was established.
Thus, for example, transactions outside a court that are known by Danish law and which are enforceable under this law (Udenretlig Forlig) do not fall under the application of section 50.
Similarly, the exchange letters and cheques are not covered by section 50.
As in section 31 (see No. 69) the term "coated with the enforceable formula" was replaced by the words "declared enforceable".
It should be noted that cases of application of Article 50 of the Brussels Convention appear to be relatively rare.
PART V
GENERAL PROVISIONS (arts. 52 and 53)
Article 52 - Home
73. Article 52 third paragraph of the Brussels Convention relates to persons whose domicile depends on that of another person or the seat of an authority.
It adopts a common conflict rule based on the personal status of the dependent person, in this case, the national law of that person.
This rule has been challenged by EFTA member states, particularly in light of the developments that have taken place since the drafting of the 1968 Convention regarding the domicile of the married woman.
It was decided to delete the third subparagraph.
As a result, to determine whether the defendant is a minor or a major incapacity, the judge will enforce the law designated by the conflict rules allowed in his country.
If so, to determine the legal domicile, it shall be applied, in the case of the first paragraph or the second paragraph of section 52. Thus, to determine whether the minor has his domicile in the territory of the State whose courts are seized, the judge will apply his domestic law.
When the minor has no domicile in the territory of the State whose courts are seized, the judge shall, in order to determine whether the minor has a domicile in another Contracting State, enforce the law of that State.
PART VI
TRANSITIONAL PROVISIONS (Articles 54 and 54 bis)
(a) Article 54 - Implementation of the Convention in time
74. Only technical adaptations have been made to this article since the modalities for the entry into force of the two conventions are not identical but, on the merits, no amendments have been made (see the Jenard report, pp. 57 and 58 and the Schlosser report, paras. 228-235).
(b) Article 54 bis (Maritime)
75. Article 54bis corresponds to Article 36 of the 1978 accession agreement (see the Schlosser report paras. 121 et seq.).
Paragraph 5 of this article defines the terms "marital receivable". According to this definition, a maritime debt is. among other things, a right or debt resulting from a cale charge (paragraph 1). The German version of this convention as well as that of the Brussels convention uses the term "Hafenabgaben" for cale fees. This should, however, absolutely not suggest that port fees, basin fees or fees or other similar taxes are considered to be calf charges for the purposes of this section.
PART VII
RELATIONS WITH THE CONVENTION OF BRUXELLES AND OTHER CONVENTIONS
(a) Article 54ter (Relations with the Brussels Convention)
76. Reference should be made to the comments in chapter II, paragraph 1.
(b) Articles 55 and 56 (Conventions concerning EFTA member States)
77. Article 55 mentions, on the one hand, the conventions concluded between the member states of the EFTA and, on the other, those concluded between these States and the member states of the Communities (see annex II).
The conventions between the Member States of the Communities have not been repeated since they are already the subject of Article 55 of the Brussels Convention and, with regard to Spain and Portugal, will do so in the conventions of accession to the Brussels Convention.
78. Section 56 was not amended.
(c) Article 57 (Conventions in special subjects)
79. The problem of conflicts of laws has been with that of conflicts of jurisdictions the most, perhaps, of private international law.
But the problem of convention conflicts also holds attention. Many of the international conventions, which, either directly or indirectly, deal with the same object, are many of the international organizations that are called upon to elaborate them. As for solutions, several systems are perfectly possible in international law. Some are based on the principle specialia generalibus derogant, others on the rule of anteriority. In the end, others propose to take into consideration the efficiency criterion. For example, with regard to the recognition and enforcement of judgments, they advocate taking into account that of the conventions in attendance, which, reflecting the purpose pursued by the authors of these conventions, ensures in the best conditions that the judgment was rendered in a country, the possibility of having it recognized and executed in another country.
As Professor Schlosser points out in his report (paragraphs 238 to 246), the issue was dealt with at length during negotiations on the 1978 accession convention.
The solution was enshrined in Article 25 of this Convention.
80. The problem was thus taken up in the negotiation of the Lugano Convention. The same basic principle is retained in the two conventions: that they do not derogate from the conventions entered into in particular matters to which the Contracting States are or will be parties and that regulate the judicial jurisdiction, recognition and enforcement of judgments (6),
The solutions selected are contained in Article 57. They can be examined at a double level: that of competence, on the one hand, and that of recognition and enforcement, on the other.
81. With regard to judicial jurisdiction, the two conventions, that is, the 1968 Convention as amended by the 1978 Convention and the Lugano Convention, contain similar provisions.
Article 57, paragraph 2, of the Lugano Agreement, as well as Article 25, paragraph 2, of the 1978 Agreement of Accession, provides that this Convention does not constitute an obstacle to the fact that a court of a Contracting State, a party to a convention relating to a particular matter, may base its jurisdiction on such a convention even though the defendant would be domiciled in the territory of a State party to the non-ugano Convention.
On this point, Article 57 therefore brings a new exception to Article 2 which sets out the principle that the defendant must be assigned to the court of his domicile.
Examples include:
The international convention for the unification of certain air transport rules signed in Warsaw on 12 October 1929 was not ratified by Luxembourg. The carrier is domiciled in Luxembourg but the Warsaw Convention provides as competent that of the place de " destination" (for not retained as by the Lugano Convention, nor by the Brussels Convention).
Article 57 allows the applicant to assign the Luxembourg carrier to the court of a State party to the Lugano Convention and to the Warsaw Convention, since this is admitted by this agreement.
The solution is identical in the Brussels Convention. The priority has been given to the convention in particular, as Professor Schlosser wrote in his report on the 1978 Convention [paragraph 240 (b), in "a concern for simplification and clarification of the legal situation" and, in addition, we will not ignore the rights that third-country nationals might have of the convention in particular.
However, the jurisdiction before it must enforce Article 20 of the Lugano Convention with a view to ensuring respect for the rights of defence.
In this case, in the event of a defendant's default, the judge will have to check ex officio whether he is competent under the particular matter agreement and whether the defendant has been assigned regularly and in time to defend himself.
82. With regard to recognition and enforcement the solutions are not identical in the Brussels Convention (as adapted on this point by the 1978 convention) and in the Lugano Convention. It provides, in fact, unlike the Brussels Convention, that recognition and enforcement may be refused if the requested State is not a party to the particular convention and if the person against whom recognition or enforcement is requested is domiciled in that State.
This difference is motivated by the fact that the Brussels Convention applies between Member States of the same Community while the Lugano Convention is not based on the same principle.
The member states of the EFTA have therefore requested that the courts of the requested State be allowed to refuse recognition and enforcement if the person against whom they are requested is domiciled in the territory of that State, considering that such a guarantee should be granted to that defendant, in particular in the fear that the agreement concluded in particular does not contain the heads of jurisdiction considered exorbitant by the requested State in accordance with the law of that State.
It should be emphasized that this ground of refusal is exceptional since paragraph 3 establishes the principle of recognition and enforcement. It is therefore not an automatic application but left to the appreciation of the judge of the State required according to the law of that State.
It goes without saying that a judgment rendered in a member state of the EFTA, on the basis of a rule of competence provided for in a particular convention, could, under the same conditions, not be recognized or executed in a Member State of the Communities.
83. In the view of the rapporteurs, and although the matter is not expressly resolved by the text of Article 57, if a court of a Contracting State, competent under a convention concluded in a particular matter, is first seized, the rules of litispendance and connexity provided for in Articles 21 and 22 are applicable. Thus, for example, in the event of litispendance, the courts of another Contracting State, even though this State would not be a party to the Convention in particular matter, should ex officio suspend to decide whether they were seized second. The competence of the judge first seized is, indeed, recognized by the Lugano Convention by combination of articles 21 and 57, recognizing the competence of the judge first seized on the basis of a convention concluded in particular matter.
84. For the purposes of the Lugano Convention, community acts were assimilated to conventions concluded in particular subjects. In this regard, we refer to the commentary to Protocol No. 3.
PART VIII
FINAL PROVISIONS (arts. 60-68)
(a) Opening remarks
85. While the final provisions are generally fairly classical, they are somewhat unique in this Convention and they require, therefore, sufficiently developed comments. It is, first of all, a convention that requires, between the contracting States, very close constitutional and economic conceptions (see chapter I, paragraph 2 No. 3). Moreover, it was negotiated between States that all belong to European organizations, the European Communities and EFTA.
Several questions were raised to the sponsors of the convention. The first, in general terms, was to know which States could become parties to the convention. Others, of a more particular nature such as:
Who, after the opening to the signing of the convention, would become members of either the European Communities or EFTA?
Whose third-party states, who, not belonging to either of the two organizations, would like to become parties to the convention?
Whose territorial application of the convention?
Quid finally, if one of the territories of which a Contracting State assures international relations becomes independent?
Each of these issues has been discussed in depth and a set of solutions have been identified (7).
(b) Article 60 - States that may become parties to the Convention
86. Article 60 is related to this subject, although articles 61 and 62 determine the terms of it, using either the procedure of signature and ratification (Article 61), or the procedure of accession (Article 62).
In any case, may become parties to the convention:
1st the States that, on the date of the opening of the convention for signature, were members of either the European Communities or EFTA;
2° States that, after that date, would become members of either of the two organizations. Given the origin of the convention, this solution was virtually self-evident, neither of the two organizations could be frozen in time;
Third-party states. It is, of course, the most delicate question. There are, in fact, outside the member states of the two organizations, States that share the same fundamental concepts while they are not European. As we will see, during the commentary to article 62, strict conditions were provided for the accession of these States to the convention. In summary, if the convention translates a willingness to open, it still shows some caution.
(c) Article 61 - Signature, ratification and entry into force
87. According to Article 61, the Lugano Convention is open for signature by the States that were members of either of the two organizations on the date of its opening for signature on 16 September 1988.
It was thus agreed because it was at the diplomatic conference that the final text was drafted and adopted by the persons authorized for that purpose by their States.
The convention was signed by ten States on that date: Belgium, Denmark, Greece, Italy, Luxembourg and Portugal, and the member states of EFTA: Iceland, Norway, Sweden and Switzerland. Subsequently, the agreement was signed by Finland on 30 November 1988 and by the Netherlands on 7 February 1989.
The agreement may be signed at any later time by the other six states (the Federal Republic of Germany, Spain, France, Ireland and the United Kingdom, on the one hand, Austria, on the other).
88. According to Article 61, paragraph 3, the Convention shall enter into force when it has been ratified by a Member State of the Communities and a Member State of the EFTA.
With regard to a multilateral convention, we might be surprised at this mode of entry into force.
We deliberately wanted to speed up the entry into force of the convention. In fact, for persons domiciled in the territory of a member State of the EFTA, a number of guarantees are presented when they are appealed to the courts of a Member State of the Communities. Thus, for example, Article 4 of the Brussels Convention will cease to apply to them. Furthermore, persons domiciled in the territory of a Member State of the Communities may not be appealed to the courts of a member State of the EFTA on the basis of the exorbitant rules of jurisdiction in force in that State.
On the other hand, ratification procedures may be fairly slow, which is likely to delay the entry into force of a multilateral convention when a number of ratifications are required.
For example, the 1968 Convention entered into force only in 1973 and the 1978 accession agreement entered into force between the six member states originating in Denmark only 1^er October 1986, the United Kingdom on 1^er January 1987 and Ireland 1^er June 1988. Greece's accession agreement of 25 October 1982 entered into force on 1^er April 1989 in respect of Belgium, Denmark, the Federal Republic of Germany, Greece, France, Ireland, Italy, Luxembourg and the Netherlands, and 1^er October 1989 with respect to the United Kingdom.
In summary, it is sufficient that a Member State of the Communities and a member State of the EFTA ratify the Lugano Convention to be in force between the two States from the first day of the third month following the date of the deposit of the second instrument of ratification.
(d) Article 62 - Accession
1st New Member States
89. States that, after the opening to the signature, become members, either of the Communities or of the EFTA, may accede to the convention.
According to paragraph 4 of Article 62, however, a Contracting State may consider itself not bound by that accession.
This clause has been adopted since a Member State of one of the two organizations has no right to look at the access of new organizations States to the other organization and that, for its own reasons, it would consider that it would not be possible to be held with this new State by such close links as those established in the Lugano Convention. This is a safeguard clause that also applies to third States.
2° Third States
90. Prudence in their regard is reflected in special conditions.
In the first place, their desire to adhere to the convention must be "sponsored" by a Contracting State, that is, a State that is to have ratified the Convention or acceded to it, which will inform the depositary State of the intention of the third State.
Secondly, this third State shall provide to the depositary State, which shall then communicate to the other signatory States and to the States which have acceded, the contents of the declarations it intends to make for the application of the convention and the details it wishes for the application of Protocol No. 1. Negotiations can take place in this regard: they cannot, in any case, question the provisions of the Lugano Convention itself. The mechanism envisaged is therefore different from that of Article 63 of the Brussels Convention which provides that a new Member State of the European Economic Community may request that "necessary modifications" be subject to a special convention. This procedure, which was followed in particular during the elaboration of the 1978 accession agreement, is therefore not applicable in this case.
Thirdly, the States mentioned in Article 60 (a) and (b), so informed of the declarations and clarifications envisaged by the candidate State for accession, shall unanimously decide whether to invite that State.
The States referred to in Article 60 (a) and (b) are either those that were members of either of the two organizations at the date of the opening of the agreement for signature, that is, on September 16, 1988, or those that would have become members of either of these two organizations after that date. The agreement of third States that would have acceded to the convention is therefore not required. It was thus agreed because the convention is. in its essence, a convention between member states of the Communities and EFTA and that, therefore, it did not seem to assign to a third State that would have become a party to this convention, a right of " veto" as to the accession of another third State.
In the fourth place, the decision being taken to "receive" the candidature of the third State, negotiations may be initiated either at its request or at the request of other interested States, with regard to the clarifications it intends to provide in Protocol No. 1.
Finally, let us recall, the last safeguard clause, that any Contracting State may (under paragraph 4) refuse that the Convention applies in its relations with the third State which has acceded to the Convention. This system, which is based on various conventions developed in the framework of the Hague Conference on Private International Law, takes into account problems that, possibly politically, may arise between a Contracting State and a third State.
(e) Territorial application
91. Article 60 of the 1968 Convention and Article 27 of the 1978 Convention concern the territorial application of these conventions, limiting it, subject to well-defined exceptions, to the European territory of the Contracting States.
92. In the negotiations leading to the convention. of Lugano, it was found that the application of the convention to non-European territories which, either form an integral part of the national territory of the Contracting States, or which they assume international relations, should be considered in a broader way. Indeed, some of these territories are often important financial centres with close relations with contracting States. In view of the speed with which the means of communication are developed, assets could be transferred to these territories, which, if the convention could not be applicable to them, would create a situation contrary to the purpose pursued, since the judgements rendered in a State party to the convention could not be carried out in accordance with these provisions.
93. It was agreed at the diplomatic conference that it would be preferable for the convention, like many other international conventions, to contain no provisions relating to its territorial application. As a result, the limitation to the European territories, which in principle appears in the 1968 and 1978 conventions, is no longer included in the Lugano Convention.
94. However, the negotiations made it clear that in the absence of a specific provision, the Lugano Agreement applies ex officio:
- to the whole territory of the kingdom of Spain,
- to the entire territory of the Portuguese Republic,
- for France: to all the territories that are an integral part of the French Republic (see articles 71 et seq. of the constitution) including the French overseas departments (Guadeloupe, Martinique, Guyane, Réunion), the overseas territories (Polynesia, Nouvelle-Calédonie, Southern and Antarctic lands) and the specific territorial authorities (Saint-lonPierre-et-Mique).
95. For Denmark and the Netherlands, the situation is somewhat different.
Denmark
With a view to ratifying the Lugano Convention, Denmark indicated that it wished to reserve the possibility of extending it subsequently to the Faroe Islands and Greenland which are part of the Kingdom of Denmark but which enjoy autonomy in their internal affairs (Law No. 137 of 23 March 1948 for the Faroe Islands and No. 577 of 29 November 1978 for Greenland) and which affects their territories Depending on the outcome of these consultations, Denmark may, by a declaration that may be sent to the depositary State at any time, specify what is relevant to the application of the convention to these territories.
The Netherlands
From 1^er January 1986, the Kingdom of the Netherlands consists of three countries, namely the Netherlands, the Netherlands Antilles [the Bonaire, Curaçao, Sint-Martin (the Dutch part of the island), Sint-Eustatius and Saba] and Aruba. Since consultations are necessary, the Netherlands, as well as Denmark with regard to the Faroe Islands and Greenland, may, by a declaration that may be addressed at any time to the depositary State, specify what is relevant to the application of the convention in the Netherlands Antilles and in Aruba.
96. However, other contracting States (the United Kingdom and Portugal for Macau and Timor Leste) include separate entities from the metropolitan territory. International conventions can only be concluded on behalf of these entities by the United Kingdom and Portugal.
The United Kingdom
During the negotiations, the United Kingdom and other States provided a complete list of non-European territories to which it assumes international relations (8), For European territories, see the Schlosser report, paragraph 252.
This list of non-European territories is contained in the acts of the diplomatic conference. The United Kingdom has also provided guidance on those Territories to which it may face effective implementation of the convention. It was agreed that providing this information did not amount to a binding commitment not to carry out other extensions but that it was intended to allow other States to better assess the practical consequences of an extension of the application of the convention.
To that end, the United Kingdom indicated that, among these non-European territories, Anguilla, Bermuda, the British Virgin Islands, Montserrat, the Turks Islands and the Caicos Islands and Hong Kong were territories to which it could consider making the convention applicable.
Portugal
The question of an extension of the convention in Macau and Timor Leste is not yet decided
(f) Access to independence
91. The question of what would come from the application of the convention to territories that would gain independence was also considered.
The Convention does not contain any provision in this regard. On the one hand, such a clause is not usual in international conventions. On the other hand, it is a classic problem of public international law and it is generally accepted that, if a country is granted independence, any Contracting State is free to consider itself bound or not, by the convention in question, with that new State and vice versa (on this point, see the Schlosser report, paragraph 254).
In any case, the State which has become independent may, if it wishes to become a party to the convention, have recourse to the procedure for accession, for third States, to article 62 of the Lugano Convention (see point 90).
CHAPTER IV
PROTOCOLES
98. Under Article 65, the three protocols that complement the Convention are an integral part of the Convention.
PROTOCOL No. 1 RELATING TO PROCEDURES FOR COMPETENCE AND EXECUTION
1. Opening remarks
99. This protocol corresponds to the protocol annexed to the Brussels Convention. The provisions of articles I, II, III and V quinquies of this protocol are reproduced as in Protocol No. 1 to the Lugano Convention. The provisions of Article V quater of the Protocol annexed to the Bruxelle Convention are not included in this Protocol. These provisions had been inserted in the protocol annexed to the Brussels Convention only to clarify that the concept of "residence" in the English text of the European Patent Agreement for the Common Market, signed in Luxembourg on 15 December 1975, is deemed to have the same scope as the term "home" in the Brussels Convention. Such provisions would, however, have been superfluous in the Lugano Convention. The other provisions of the protocol annexed to the Brussels Convention are reproduced in this protocol with minor modifications, most of which are due to the legislation in force in several EFTA member states: In addition, the protocol contains two articles (Ier bis and Ier ter) which do not have equivalents in the protocol annexed to the Brussels Convention.
2. Article 1^er bis: Reserve requested by Switzerland
100. This article contains a reservation requested by Switzerland. It provides that Switzerland may declare at the time of deposit of its instrument of ratification that a judgment rendered in another Contracting State shall not be recognized or executed in Switzerland if the jurisdiction of the court which has pronounced the decision is based solely on Article 5 (1) (the place of execution of the contract) of the Convention and if certain other conditions are met. Since this chief of competence is considered by many States as being, from a commercial point of view, the most significant of all the specific rules of competence in the convention, the content of this part of Protocol No. 1 has been discussed in depth.
For Switzerland, the need for a reservation originates in Article 59 of the Swiss Federal Constitution (9) which guarantees the right of a person domiciled in Switzerland, regardless of nationality, to be appealed, in contractual matters, to the courts of his domicile. Although there are some exceptions to this general principle, it was clear that a provision such as article 5 (1) of the convention could conflict with the law: Swiss constitutional and make it impossible for Switzerland to participate in the convention. The developed compromise limits the impact of the reservation to a minimum essential.
101. First, the reservation only applies if the defendant was domiciled in Switzerland at the time of the commencement of the proceeding. For the application of the reservation, the domicile will be determined and recognized in accordance with the general principles and the rules of the convention. However, a corporation or other legal entity shall be considered to have its domicile in Switzerland only if it has its registered office and the effective center of its activities in that country. The reservation will therefore not apply if the actual centre of the activities of a company or other legal entity is outside Switzerland even if they have their statutory seat in Switzerland. In addition, the reservation will only apply if they have their statutory seat in Switzerland.
Secondly, recognition and enforcement may only be denied on the basis of the reservation if the jurisdiction of the court that has pronounced the decision is based solely on Article 5 (1). If, for example, a defendant domiciled in Switzerland has been subject to a jurisdiction of another Contracting State, the reservation will not apply since, in that case, jurisdiction would not have been based exclusively on Article 5(1) but also on Article 18. Similarly, the reservation will not apply if the jurisdiction of the original court is based on an attributive jurisdictional agreement for the settlement of disputes in contractual matters, since in this case the jurisdiction would arise from Article 17.
Third, the reservation will only play if the defendant opposes the recognition or enforcement of the judgment in Switzerland. This opposition must be made in good faith. The Swiss delegation pointed out that it was perfectly possible, according to Swiss law, that the defendant waives the protection afforded by Article 59 of the Constitution and that this waiver may validly intervene at any time. Thus this waiver could take place even before Switzerland made its declaration. This is derived, in the text of the article, from the words "the declaration provided for in this paragraph". It is therefore possible for those who contract with persons domiciled in Switzerland to state a waiver of the protection provided for in Article 59 of the Swiss Federal Constitution, which otherwise would apply. An agreement between the parties on waiver of this protection could be concluded either orally or in writing to the extent that there is sufficient evidence that there has been waiver. If such an agreement has been reached or the Swiss court is. in fact, convinced that the defendant has waived his rights, recognition and enforcement will not be denied in Switzerland even though the defendant has made the reservation statement.
In the fourth place, the reservation does not apply to contracts for which, when recognition or enforcement is requested, an exemption has been made to section 59 of the Swiss Federal Constitution. The Swiss government has an obligation to communicate such exemptions to the signatory States and to the States that have acceded to the convention.
In the fifth place, the Swiss delegation stated that a reservation envisaged in this article would not apply to labour contracts. Thus, Switzerland will not in any case refuse the recognition or enforcement of a judgement in a matter relating to an individual contract of work on the ground that the jurisdiction of the court that rendered the judgment is based only on article 5, paragraph 1, second part of the sentence of the agreement.
Finally, any statement made by Switzerland, on the basis of this article, must expire at a specified date, that is, 31 December 1999. If, at that time, the Swiss federal constitution had not been amended to lift this constitutional challenge, Switzerland could denounce the convention and become a party to it once such difficulties have been overcome.
102. If Switzerland makes the reservation provided for in this article, the other States shall be entitled to apply the reciprocity to Switzerland by refusing to recognize and enforce judgements rendered in Switzerland if the jurisdiction of the Swiss courts is based solely on Article 5 (1) of the Convention and if the other conditions corresponding to those mentioned in Article 1^er protocol bis are filled.
Because of the difference in the existing constitutional systems, a reciprocity clause was not included in the protocol. As a result, this reciprocity will be determined by the rules of public international law. Since such rules can be reproduced differently in national legislation, solutions in this area of reciprocity may vary from country to country.
In the states applying the "dualist" system this issue of reciprocity will be dealt with at the legislative level and generally settled. In countries where the monist system exists, it will be up to the courts or other authorities to solve this problem of reciprocity. For example, in France, where the "monist" system applies, a treaty, according to the French constitution, prevails over the law provided that the treaty applies on the basis of reciprocity. If the question of whether the treaty applies on this basis is raised before a court, and the answer is not clear, the court must refer to the Ministry of Foreign Affairs which is competent for the interpretation of treaties.
With regard to the application of Article 7 of the Treaty establishing the European Economic Community (prohibition of discrimination on the basis of nationality), the judge of a Member State of the Community may, if the matter is raised, request the Court of Justice of the European Communities to rule on a preliminary basis, in accordance with Article 177 of the EEC Treaty.
It is the result of discussions that some States will not apply reciprocity.
3. Article 1^erter - Leasing Reserve
103. This Article provides that a State may, by a declaration made at the time of signature or deposit of its instrument of ratification or accession, reserve the right not to recognize or enforce the decisions rendered in other Contracting States where the jurisdiction of the original jurisdiction is founded, pursuant to Article 16 (1) (b), on the sole domicile of the defendant in the State of origin.
This provision has already been commented above (see supra No. 53).
4. Article IV - Judicial and extrajudicial acts
104. This article reproduces Article IV of the Protocol annexed to the Brussels Convention. However, the declaration provided for in the second subparagraph of this article should be addressed not to the Secretary-General of the Council of European Communities but to the depositary of the Lugano Convention.
5. Article V - Application for warranty or intervention
105. In Austrian, Spanish and Swiss law, as well as in German law, a request for a guarantee or a request for intervention is made by the questioning of the third party. A rule similar to that contained in Article V of the protocol annexed to the Brussels Convention (see the report Jenard, p. 27, commentary to Article 6(2), was therefore extended to Austria to Spain and Switzerland. Unlike what is expected for Austria, the Federal Republic of Germany and Spain, it has not been possible to refer to a single legislative source for Switzerland. Provisions on the questioning of third parties are in fact divided both in the Federal Civil Procedure Act and the twenty-six cantonal codes of civil procedure.
"With respect to Spain, the intervention of third parties in the proceedings is not expressly regulated in the Spanish legal order and the absence of adequate procedures creates uncertainty as to how to proceed. The doctrine strongly denounced this legal gap by wishing it to be filled in the next future. This does not, however, mean that this institution is not already admitted in certain areas in the jurisprudence or in civil laws governing certain specific cases; This is, for example, that of section 124 (3) of Act No. 11 of 20 March 1986 on patents or that of article 1482 (*) of the Civil Code concerning eviction. This is the latter rule which, in general, is likely to be applied in cases of forced or provoked intervention; It therefore seemed opportune, within the framework of negotiations between the Member States of the European Community and those of the European Free Trade Association, to include it in Article V of Protocol No. It is referred, was it indirectly, to this article 1482 in articles 638 (donation), 1145 (solidarity bonds), 1529 (transfer of receivables), 1540 (exchange), 1553 (bail), 1681 (bonds of associates), 1830 (fidejusseur), 1831 (cofidéjusseur), etc., of the civil code. »
6. Article Vbis - Competence of administrative authorities
106. In Iceland and Norway, administrative authorities are, as in Denmark, competent in respect of food obligations. Iceland and Norway were therefore lying in this article in addition to Denmark.
107. In Finland, for historical reasons, the "ulosotonhaltija/overexekutor" (regional authority) is competent to take the interim measures provided for in Article 24 of the Lugano Convention. In addition, the documentary procedure for the collection of debts based on the promissory note or a similar document, as well as some other summary procedures, such as the eviction, take place before this authorisation. The choice exists between the use of this trial or judicial proceedings. The "ulosotonhaltija/overexekutor" is obviously not a court but an administrative authority which in the above cases plays a judicial role. The removal of this authority is envisaged and its functions, to the extent that they are engaged in civil and commercial matters, would be transferred to the courts.
In order to balance, a second paragraph was inserted in this article to clarify that the term "court" includes the Finnish "ulosotonhaltija/overexekutor" in civil and commercial matters.
7. Article Vter: Litics between the master and a member of the crew of a ship
108. At the request of their delegations, Iceland, Norway, Portugal and Sweden were mentioned in this article.
8. Article VI: Amendment of domestic legislation
109. This article reproduces Article VI of the Protocol annexed to the Brussels Convention. The communications under this article should, however, be addressed not to the Secretary-General of the Council of the European Communities but to the depositary of the Lugano Convention.
PROTOCOL No. 2 ON THE UNIFORM PROPRETATION OF THE CONVENTION
1. Opening remarks
110. In the absence of a uniform interpretation, the unifying scope of the Lugano Convention would be significantly reduced. In addition to this, many provisions of the convention, if not most, are included in the Brussels Convention, which posed an additional problem. As is known, the Member States of the Communities have, in order to avoid such differences, concluded the Protocol of 3 June 1971 which assigned jurisdiction to the Court of Justice of the Communities to rule on the interpretation of the Brussels Convention. When applying this convention, the tibunals of the Member States of the Communities must comply with the interpretation given by the Court.
However, the Court of Justice could not be recognized as competent to interpret Lugano's suit which is not a source of community law. Moreover, the EFTA member states could not have admitted a solution that provided that an institution of the Communities should, as a last resort, decide on the Lugano dge convention. It was not more conceivable to assign such jurisdiction to another intemational jurisdiction or to create a new jurisdiction, since, in particular, the Court of Justice of the Communities was already competent, under the 1971 Protocol, to rule on the interpretation of the Brussels Convention and that in any case, there was no need to create conflicts of jurisdiction between international jurisdictions.
111. The solution that has been chosen to meet this somewhat complex situation (i.e., to ensure the uniformity of interpretation of the Lugano Convention while taking into account the powers of the Court of Justice of the Communities regarding the interpretation of the Brussels Convention, many of which are included in the Lugano Convention) is based on the principle of consultation and not on that of the judicial hierarchy.
It was therefore agreed that the decisions made pursuant to the Lugano Convention or the Brussels Convention will be communicated by a central organism to all signatories and Member States and that the representatives they designate will be invited to meet to exchange their views on the operation of the convention. As to the legal technique, it was decided that the provisions for uniform interpretation would be consolidated in a protocol annexed to the Convention, the provisions of which would be an integral part of the Convention. It was also decided to include two declarations to the protocol. One will be signed by representatives of the governments of the States signatories to the convention and members of the European Communities, the other by representatives of the governments of the States signatories to the convention and members of the EFTA.
2. Preamble
112. The first consideration of the preamble refers to Article 65 of the Lugano Convention. This article states that a protocol No. 2, concerning the uniform interpretation of the convention by the courts, is an integral part of it.
The second consideration refers to the substantial link between the Lugano Convention and the Brussels Convention.
As we have already mentioned, the Court of Justice of the European Communities was recognized competent, under the Protocol of 3 June 1971, to rule on the interpretation of the provisions of the Brussels Convention. At the time of negotiations for the conclusion of the Lugano Convention, it was established from the outset that the provisions of the Brussels Convention that would be repeated in substance in the Lugano Convention were to be understood in the light of the relevant decrees that the Court of Justice would have rendered until the date of the opening to the signature of the latter convention. The group that drafted this convention knew all decisions made in this direction until that date. The intention was to arrive at a uniform interpretation as possible when it comes to identical provisions in both conventions. However, when a provision of the Brussels Convention in the interpretation given by the Court of Justice of the European Communities, for example, article 16, paragraph 1, was considered unacceptable, it was not taken up as in the convention (on the judgments of the Court of Justice, see chapter VI).
The threeth, fourth and fifth considerations were inserted in the preamble to emphasize the importance of the decisions regarding the interpretation of the Brussels Convention rendered by the Court of Justice of the European Communities until the date of signature of the Lugano Convention.
The sixth considering confirms the wish of the Contracting States to prevent, while respecting the independence of the courts, divergent interpretations.
3. Article 1^er
113. This article applies only to decisions concerning provisions of the Lugano Convention. It provides that the courts of each contracting party shall give due consideration, in the application and interpretation of the provisions of the Lugano Convention, to the principles defined by any relevant decision made by the courts of other contracting parties concerning the provisions of the said Convention. The terms "any relevant decision" mean in this article the decisions rendered by the courts of the contracting parties that have been forwarded to the central body in accordance with Article 2 paragraph 1 first dashes, i.e. the judgements rendered by the courts of last instance and other particularly important decisions passed by force of the trial.
114. This article does not specifically address decisions relating to the application and interpretation of the Brussels Convention, which are reproduced in substance in the Lugano Convention.
It cannot, in fact, be lost in view that the courts of the Member States of the Communities are the only courts to apply the Brussels Convention and that, when interpreting its provisions, they must comply with the Court of Justice decisions. However, the Member States of the Communities could not appeal to the Court of Justice, which is a separate institution, to take into account decisions rendered by the courts of the EFTA member States. For their part, the representatives of the latter States considered that it would not be entirely fair to insert, in the protocol, a provision expressly providing that the courts of these States should take into account the decisions rendered not only by the courts of the other Contracting States, but also by the judgments of the Court of Justice of the Communities, whereas it would not be subject to any undertaking provided that this is the interpretation of provisions of the convention of the Brussels Convention.
115. However, it was recognized that when they would interpret the provisions of the Lugano Convention that reproduce provisions of the Brussels Convention, the courts of the Member States of the Communities would hear these provisions in the same direction as the identical provisions of the Brussels Convention and in accordance with the interpretation given by the Court of Justice of the European Communities in its decisions. It was therefore essential, in order to ensure a uniform interpretation as possible of the Lugano Convention, that the courts of the EFTA member States apply it as the courts of the Member States of the Communities But it was equally necessary that the Court of Justice, by interpreting the provisions of the Brussels Convention, which were adopted in the Lugano Convention, takes into account in particular the jurisprudence of the courts of the EFTA member States.
116. To achieve this double objective, the convention has two declarations. In one of the representatives of the governments of the States signatories to the Lugano Convention members of the Communities declare that they consider it appropriate that the Court of Justice, when interpreting the Brussels Convention, take duly into account the rules established by the jurisprudence relating to the Lugano Convention. In the other, the representatives of the EFTA states declare that they consider it appropriate for their courts to take into account, when interpreting the Lugano Convention, the rules established by the jurisprudence of the Court of Justice of the European Communities and the courts of the Member States of the European Communities regarding the provisions of the Brussels Convention which are reproduced in substance in the Lugano Convention.
At the request of the representatives of the EFTA States, a list and the content of the judgements rendered by the Court of Justice in interpretation of the 1968 Convention is reproduced in this report (see chapter VI).
4. Article 2
117. As we have already stated, it was decided that the uniformity of interpretation of the common provisions of the Lugano and Brussels conventions would be ensured by an information and consultation system. Pursuant to paragraph 1 of this Article, the Contracting States agree to establish a system for the exchange of information concerning the decisions rendered under the Lugano Convention and the relevant decisions rendered under the Brussels Convention. The terms "relevant decisions" mean, in this context, the decisions made under the Brussels Convention that are also relevant to the interpretation of the Lugano Convention.
This information exchange system includes:
- the transmission to a central body by the competent national authorities of decisions made pursuant to the Lugano Convention or the Brussels Convention,
- the classification of these decisions by the central agency, including, to the extent necessary, the establishment and publication of translations and summaries,
- the communication by the central body of documentary material to the competent national authorities of all States that are signatories to or acced to the Lugano Convention and to the Commission of the European Communities.
According to paragraph 2 of this article, the central body mentioned above will be the Registrar of the Court of Justice of the European Communities. The Court agreed on this subject, provided that the terms and conditions of the information exchange system, including the question of the translation of judgments that are not drafted in an official language of the Communities, are specified with the Court after the diplomatic conference and that the services of the Court will benefit from the necessary budgetary support and support. The competent national authorities referred to in the first and third dash of paragraph 1 of this article shall be designated by each Member State concerned.
However, this information exchange system will not include all decisions made by a national court pursuant to the Lugano Convention or all relevant decisions rendered pursuant to the Brussels Convention. For the purpose of the protocol, it will be sufficient to forward the decisions of the courts of last instance and the Court of Justice to the central body provided for in that article (paragraph 1 first dash) and the decisions of the other tribunals that are particularly important and forcible. Only such decisions will therefore be categorized by the central body and communicated in accordance with the third dash of paragraph 1 of this article.
When the communication of documentation requires the publication of translations and summaries by the central agency, it was agreed that this publication would take a very simple form in order to save money.
5. Article 3
118. In order to ensure uniform interpretation of the common provisions of the Lugano and Brussels conventions, it appeared necessary that representatives appointed by each signatory or adherent State meet to exchange their views on the operation of the Lugano Convention. Article 3 provides for the establishment of a permanent committee composed of representatives designated by each signatory State or adherent. This standing committee is not conceived as a bureaucratic body but as a forum where national experts could exchange their views on the functioning of the convention and, in particular, on the jurisprudence to which it gives rise in the various contracting States, with the aim of promoting, as far as possible, uniformity in the interpretation of the convention. The protocol does not provide that the committee meets regularly. Under Article 4(1), such meetings shall be held only at the request of a contracting party.
It should be emphasized, in this regard, that not only those States that are already parties to the convention (either they have ratified it or acceded to it), but also those that have signed it but are not yet parties can designate representatives to the Standing Committee. This solution was adopted since a distinction between signatory States and contracting States would suggest that some States would sign the Lugano Convention without intending to ratify it.
Divergent views were expressed on the composition of the Standing Committee: should judges or officials be appointed? It was decided that each State would be free to appoint its representatives to the committee. It may therefore be that some states designate judges, while others will designate officials or persons from other backgrounds. It goes without saying that each State will decide freely how and for how long a person will be appointed to represent him in the Standing Committee.
Because of the links between the Lugano Convention and the Brussels Convention, paragraph 3 of this article provides that may participate in meetings of the Committee, as observers, representatives of the European Communities, namely the Commission, the Court of Justice and the General Secretariat of the Council and the EFTA.
The committee may be responsible for establishing its rules of procedure.
6. Article 4
119. The provisions of paragraph 1 of this article relate to the convening and assignment of the Standing Committee. As noted, the meetings of the committee are convened, at the request of a contracting party, to exchange views on the operation of the convention. It should be emphasized, in this regard, that a State which has only signed the Convention without being yet a Contracting Party may not request the convening of a meeting of the Committee, even if Article 3(2) provides that the Committee shall be composed of representatives appointed by each signatory State or adherent. The task of convening the committee was entrusted to the depositary of the convention.
No restrictions are provided on matters relating to the operation of the convention that require the depositary to convene meetings of the committee at the request of a contracting party.
Due to the purpose of the protocol, Article 4 provides that meetings of the committee may be convened, in particular, to exchange views on the development of the case law communicated in accordance with Article 2 paragraph 1 first dash. However, the purpose of this provision is not to assign to the committee the role of a higher body that would assess decisions made by national courts. Rather, the task of the committee is to examine these decisions to identify differences in interpretation and to promote consistency in the interpretation of the convention as far as possible.
Article 57 paragraph 1 of the Convention provides that it shall not affect the conventions to which the Contracting States are or shall be parties and that, in particular matters, shall rule the judicial competence, recognition or enforcement of decisions. According to Protocol No. 3, the provisions that regulate judicial jurisdiction, recognition or enforcement of decisions and which are or will be contained in acts of the institutions of the European Communities will be treated in the same manner as the conventions referred to in the first paragraph of Article 57.
The provisions which, in particular matters, regulate jurisdiction may, whether contained in a convention or in a community act, be equivalent to an amendment to the rules of jurisdiction contained in the Convention without the agreement of all Contracting Parties. Therefore, paragraph 1 of Article 4 of the Protocol further provides that meetings of the Committee shall be convened to exchange views on the application of Article 57 of the Convention. Paragraph 2 of Protocol No. 3 on Community Acts provides for a similar procedure. The committee will thus form a forum where points of view may be exchanged, inter alia, on provisions regulating jurisdiction in specific matters that are adopted or envisaged in community acts.
In the light of these exchanges of views, an amendment to the convention may seem opportune. This could be the case if the committee, by examining the case law communicated in accordance with Article 2, was subject to differences of interpretation that would result from imprecisions in one or more provisions of the convention. Therefore, paragraph 2 of this article provides that the committee may also consider the opportunity for a review of the convention on specific issues and make recommendations.
This competence of the committee should not be confused with the right recognized by any Contracting State under Article 66 of the Convention to request revision. The faculty and procedure provided for in Article 67 are radically different from those provided for in Article 4, paragraph 2, of the Protocol. A recommendation of the committee shall not be assimilated to an application made under Article 67 of the Convention by a Contracting State that wishes to open a review conference. Only a Contracting State, and not the Committee, may request the depositary of the Convention to convene a review conference. A recommendation of the Committee does not further constitute a precondition for the right of a Contracting State to request a review of the Convention.
PROTOCOL No. 3
CONCERNING L'APPLICATION DE L'ARTICLE 57
120. This protocol addresses the problems that could be posed by provisions on judicial jurisdiction and recognition and enforcement of judgments that would appear in community acts.
1° Concerns of States parties to the Lugano Convention
121. The very well-founded concerns, both the member States of the Communities and the EFTA member States, expressed their strong interest in community actions. Why?
(a) For the Member States of the Communities, because, somehow, they have a double personality. They are sovereign states. But they are also members of the Communities and are dispossessed under this second component to comply with their obligations under the treaties establishing the European Communities (ECSC, ECE and Euratom). According to these treaties, the Council is competent to make regulations and directives which, in specific matters, may possibly relate to judicial jurisdiction and recognition and enforcement of judgments according to the needs of these Communities (10).
The concern of these States was based on a threefold concern:
- that of fulfilling their obligations by becoming parties to the treaties establishing the Communities,
- that of not hindering any development within the framework of these treaties and under the responsibilities of community institutions,
- on the other hand, that of respecting the commitments made by the Lugano Convention with respect to the EFTA member states.
(b) For the EFTA member states, because they feared that the guarantees offered to them by the Lugano Convention with regard to judicial competence and recognition and enforcement of judgments may, in certain matters, be almost wiped out by a community act. In particular, the representatives of the EFTA member states expressed the fear that the protection provided by the Lugano agreement and above all by Article 3 to the defendants domiciled in an EFTA member state could be undermined through a community act. These defendants could thus be treated other than defendants domiciled in a Member State of the Communities, or even placed in the same situation as defendants domiciled in third States. For example, for the representatives of these States, it was not conceivable to admit, without any more, that a person domiciled in the territory of a member state of EFTA (e.g., Norway) may be called to appear before the courts of a Member State of the Communities (e.g. France) on the basis of a community act in which they would not have participated and on the basis of a non-anoid convention. In any case for these States, it was unacceptable that a judgment rendered on the basis of such a rule of jurisdiction could be recognized and enforced on their territory under the Lugano Convention. These concerns were just as well founded as those of member States of the Communities.
In short, for the EFTA member states, the insertion of rules of jurisdiction and recognition and enforcement of judgments in community acts could, without correct mechanism, be considered as giving power to the Member States of the Communities to unilaterally amend the Lugano convention.
2° Response to these concerns
122. It was for the authors of the convention to address these various concerns, both based on one another and to provide an acceptable solution for all contracting parties. We will try to answer two questions, the problem that could have been resolved: why could it be? And how could he be?
One answer could be given to these concerns, because there existed, on both sides, the conviction or, if one prefers, the profound consciousness that despite these difficulties the problem posed could and should be resolved, in accordance with the principles of public international law, because of the fundamental objectives pursued by the Lugano Convention, that is, the granting of guarantees to the defendant domiciled in the territory of a Contracting State and the freedom of movement.
In addition, it appeared during the debates that, despite its theoretical dimension, the problem had in practice only a very relative scope; Thus the emphasis was placed by the Member States of the Communities on the fact that in thirty years no community act containing provisions on judicial jurisdiction was adopted. It should be noted, however, that a draft Community Mark Regulation, which contains such rules of jurisdiction, is currently being drafted.
In addition, some Member States of the Communities have made it clear that, for practical considerations, they are not in favour of the inclusion in community actions of provisions relating to judicial jurisdiction and recognition and enforcement of judgments. For these States, the matter must be settled by the Brussels Convention, even if it is revised, amended or supplemented since for the practitioner (lawyer, magistrate, etc.) this convention constitutes a community code that begins to be well known. Dispersal of such provisions in multiple community instruments would weaken the scope of this code and make it more difficult. For these States, which do not ignore the importance of community actions, in this regard, the use of these instruments, in the areas considered, must remain quite exceptional.
3° Restraint solution
123. How could the problem be solved?
The solution is found in Protocol No. 3 and in the declaration of the member States of the Communities, which constitutes the supplement.
What about this solution that gave satisfaction to each other?
Protocol No. 3 and the full declaration form a set.
(a) Protocol No. 3
124. In its paragraph 1, Protocol No. 3 assimilates, for the purposes of the Lugano Convention, community acts to conventions concluded in particular substances and whose impact on the Lugano Convention is regulated by Article 57 of the Lugano Convention (see paras. 79-83). For representatives of the Member States of the Communities, there is no difference, if not as to their way of development, between these two types of instruments.
In this regard, they pointed out that if the EFTA member States were willing to accept the possibility for the States parties to the Lugano Convention to be amended, by conventions concluded in particular subjects (transports, etc.), the rules of this Convention, they could also accept that the Community amends the convention by community acts. These representatives also stressed that a community act, in order to be approved, required, in principle, the agreement of the twelve States, while a particular convention, whose rules would be different from those of the Lugano convention, could be concluded between only two States. According to them, there was therefore no substantive difference between the two types of instruments: conventions in particular matters and community actions.
This point of view could only be admitted by the representatives of the EFTA member states for the purposes of this Convention and in combination with paragraph 2 of Protocol No. 3 and the full declaration (see infra No. 127). In addition, these representatives said that their States did not intend to hinder the specific and specific demands of the Communities to keep some freedom to develop community law.
125. What are the consequences of paragraph 1 of Protocol No. 3, which, for the purposes of this Convention, is similar to community acts to conventions concluded in particular subjects?
A person domiciled in the territory of a Contracting State (e.g. Switzerland) may be assigned to the territory of another Contracting State that is a member of the Communities (e.g. Belgium) on the basis of a rule of jurisdiction, not provided for in the Lugano Convention, but resulting from a community act (as well as a convention rendered in particular matter).
The judgment rendered by a court of a Member State of the Communities, competent under the Community Act which derogates from the point of view of competence to the Lugano Convention, will be recognized and executed in the other Member States of the Communities. However, recognition and enforcement may be denied, under the conditions provided for in Article 57(4), i.e., in a member State of the EFTA where the person against whom the recognition or enforcement of the decision is requested is domiciled, unless the latter is permitted by the law of that State.
It should be noted that paragraph 1 of the protocol only applies to community acts and not to the laws of the member States of the Harmonized Communities in carrying out these acts, in this case the directives. The assimilation of community acts to conventions concluded in particular subjects can, in fact, only be directed to an act equivalent to such a convention and cannot therefore extend to national legislation.
Moreover, if a national legislation, departing from a directive, introduced rules of derogatory jurisdiction to the Lugano convention, one would be in another area, namely, that of the responsibility of the State which would have taken such measures.
As discussed above, the representatives of the EFTA member states were unable to accept the assimilation of community acts to the conventions concluded in particular matters only through a declaration by the Member States of the Communities to respect the rules of judicial competence and recognition and enforcement of the judgments established by the Lugano Convention (for the commentary to this declaration, see infra n° 127).
126. Paragraph 2 of Protocol No. 3 refers to the case in which, despite the precautions taken, a provision of a community act would not be compatible with the Lugano Convention. Such would, for example, be the situation that might arise if the Community Act provided for the jurisdiction of the court of the applicant's domicile in respect of any defendant domiciled outside the Community and thus in a member state of the EFTA.
This paragraph 2 has the scope of a "negotiando pactum". If a contracting party is of the opinion that there is incompatibility between the Community Act and the Lugano Agreement, negotiations will be initiated to amend, if necessary, the Lugano Agreement. To this end, the review procedure provided for in Article 66 of the Lugano Convention shall apply without prejudice to the possibility of bringing together the permanent committee established by Article 3 of Protocol No. 2 and which shall be called upon to take action in accordance with Article 4 of the said Protocol.
Negotiations must be initiated without delay in order to see quickly whether or not to amend the Lugano Convention. Paragraph 2 contains, in fact, the commitment to consider an amendment but not to amend the convention.
Furthermore, paragraph 2 of Protocol No. 3 does not contain any undertaking, and it could not, consider a modification of the community act. Such negotiations would emerge from the framework of relations between the States parties to the convention and should be undertaken with the institutions of the Community, the community act within the competence of the latter.
It is important to note that the procedure provided for in paragraph 2 could be triggered both by a Member State of the Communities and by a member State of the EFTA. A member State of the EFTA may wish to amend the Lugano Convention to prevent derogatory measures from being taken by a community act with respect to persons domiciled in its territory. On the other hand, a Member State of the Communities may have an interest in an adaptation of. the Lugano Convention so that the judgments rendered on its territory may be recognized and executed in any EFTA Member State, which could be an obstacle to article 57 paragraph 4.
(b) La déclaration des gouvernements des États membres des Communautés
127. Protocol No. 3 is accompanied by an important declaration of the Member States of the Communities. This unilateral declaration is an essential element of the solution, the other two consisting of one, in the assimilation of community acts to the conventions in particular matters, and the other, in a commitment to negotiate in the event of a distortion between a community act and the Lugano convention.
As we explained, the member states of the Communities are taken between two requirements. On the one hand, it must respect the institutional mechanisms provided for by the treaties establishing the Communities. The latter, on the other hand, to comply with their commitments under the Lugano Agreement with respect to the EFTA member states.
The declaration is important because the member States of the Communities, without misunderstood their membership and respect for their institutions:
a) take into account the commitments they have made to the EFTA member states. The Lugano Convention is therefore an instrument for these States to observe. There is therefore, on their part, what was considered a "best efforts" clause to avoid, to the extent possible, distortions between the provisions of community acts and those of the community. Lugano Convention;
(b) express their concern that they do not infringe the unity of the legal regime established by the Lugano Convention. This concern is evident if one considers that this convention, by rules strongly inspired by the Brussels Convention, is intended to ensure the free movement of judgments between the vast majority of Western European States, that is, including the judgments rendered by the courts of the Member States of the Communities;
(c) the Member States of the Communities undertake, therefore, to take, in the development of community acts, the provisions in their power to ensure compliance with the rules contained in the Lugano Agreement, in particular with regard to the protection afforded to the defendant domiciled in a Contracting State. As a result, when a community act comes under discussion in the Council of Communities, particular attention must be paid, by each member State, to the rules of the Lugano Convention.
In summary, the declaration reflects a moral and political commitment, based on good faith, of the Member States of the Communities, to maintain intact the work of unification carried out by the Lugano Convention.
4) Conclusion
128. The questions posed by community acts were among the most difficult of which the authors of the Lugano Convention had to know. A solution could be reached through the constructive will of representatives of all interested States. This compromise solution seems to us to address the concerns that have been expressed on both sides. It translates, in summary, into a three-storey construction:
(a) the assimilation of community acts to the conventions concluded in particular subjects, which corresponds to the wishes of the member States of the Communities;
(b) the unilateral commitment of the Member States of the Communities to take all the provisions in their power so that it is not undermined the unity of the legal regime established by the Lugano Convention, which gives satisfaction to the EFTA member States;
c) as a corrective, the commitment to seek a negotiated solution in the event of a discrepancy between a community act and the Lugano agreement, which, as we have stated, gives satisfaction to both.
In conclusion, the compromise seems perfectly balanced.
CHAPTER V
DECLARATIONS ANNEX TO THE CONVENTION
129. Three statements complete the Lugano Convention. The first is in relation to protocol No. 3 concerning community acts (see no. 120 to 128) and the other two to protocol No. 2 on the uniform interpretation of the convention (see no. 110 to 119).
CHAPTER VI
ARRETS OF THE JUSTICE OF EUROPEAN COMMUNITIES RELATING TO THE UNITED NATIONS BRUXELLES CONVENTION, 27 SEPTEMBER 1968
1. Opening remarks
130. The protocol of 3 June 1971 assigned jurisdiction to the Court of Justice of the European Communities to rule on the interpretation of the Brussels Convention.
The accession agreement of 9 October 1978 (Denmark, Ireland, United Kingdom) provides in Article 30 that the Court of Justice is also competent to rule on the interpretation of this Convention. Article 10 of the Convention of 25 October 1982 relating to the accession of Greece contains a similar provision.
Date of 1^er June 1988, the six Member States originating from the Communities and Denmark, Ireland and the United Kingdom are parties to the Protocol.
On the scope of this protocol, reference should be made to the Jenard reports (pages 66 to 70) and Schlosser (paragraphs 255 and 256).
It should be recalled, however, that the protocol provides for two forms of appeal: Prejudicial recourse and appeal in the interests of the law. This last track has not been used so far. With regard to the pre-judicial remedy, it implies that a national jurisdiction to decide on a matter of interpretation of the convention or protocol shall take the matter before the Court of Justice and shall rule pending its decision.
Since the entry into force of the protocol, 1^er September 1975, almost sixty judgements were rendered by the Court (see para. 3) and several cases are currently pending (see para. 4 below).
As stated in the commentary to Protocol No. 2 (see points 112 and 116), during the negotiations of the Lugano Convention, it was agreed that the provisions of the Brussels Convention should be understood as interpreted by the Court of Justice and that the report would mention the various decisions rendered by the Court.
This chapter responds to this last concern.
The judgements are not mentioned according to their chronological order but in relation to the articles of the Brussels Convention, the annexed Protocol and the 1971 Protocol which gave rise to interpretation, since this method appeared more pragmatic.
Only the operative part of the decision is reproduced in this chapter but not, except in exceptional circumstances, its motivation. The purpose of this report is not to study the judgments of the Court of Justice, but only to mention the interpretation it gave to a number of articles.
2. Contents of stops (11)
131. 1° Application of the convention
Internal procedural legislation is excluded in matters governed by the Convention for the benefit of the provisions of the Convention (Court decision of 13 November 1979 in case 25/79, Sanicentral/Collin, Court Case Law Series 1979, pages 3423 to 3431).
Article 1^erfirst paragraph: Civil and commercial matters
1. The Court ruled for an autonomous concept of civil and commercial matters e. She decided that a decision in a dispute between a public authority and a private person was excluded from the scope of the convention in the event that the public authority acted "in the exercise of public power" (sentence of 14 October 1976 in case 29/76, firm LTU/Eurocontrol, Court Case Law Series 1976, pages 1541 to 1552).
2. It confirms its decision in its decision of 16 December 1980, case 814/79, Dutch State/Ruffer, according to which the concept of civil and commercial matter does not encompass the recovery of the costs set out by the public channel manager, in this case the Dutch State, in order to remove a wreck pursuant to an international convention (Regave of the jurisprudence of the Court 1980, pages 3807 to 3822).
3. The contract of work is part of the scope of application of the convention (sentence of 13 November 1979 in case 25/79, Sanicentral/Collin, Court Case Law Series 1979, pages 3423 to 3431).
(3) Article 1^ersecond paragraph
(1) (a) Status of persons
1. Judicial decisions authorizing interim measures during divorce proceedings do not fall within the scope of the agreement as long as these measures relate to or are closely related to, or are related to, the status issues of persons involved in the divorce proceedings, or property legal reports resulting directly from the marital link or the dissolution of the marital link (decree of 27 March 1979 in Case 143/78, De Cavel J./De Cavel, 1979).
2. However, the agreement is applicable, on the one hand, to the execution of an interim measure ordered by a French judge in a divorce procedure by which one of the parties to the proceeding obtains a monthly maintenance and, on the other, a provisional compensatory benefit, payable monthly according to a French judgment rendered under section 270 et seq. of the French Civil Code.
For the Court, the subject matter of food obligations falls within the scope of the agreement and the fate of an incidental application is not necessarily related to that of the main application.
The incidental application falls within the scope of the convention following the matter which it relates and not in accordance with the subject matter of which the main request arises (decision of 6 March 1980 in case 120/79, De Cavel L./De Cavel J., Case Law of the Court 1980, page 731).
(b) Matrimonial regimes
1. The concept of "matrimonial regimes" includes not only the regimes of property specifically and exclusively designed by certain national legislation for marriage, but also all the marital legal relations directly resulting from the marital relationship or the dissolution of the marital relationship (Court decision of 27 March 1979 in Case 143/78, De Cavel Jacques/De Cavel Louise, Court Case Law Series 1979, pp. 1055-108).
2. A request for interim measures to obtain the handover of a document to prevent its production as evidence in a dispute concerning the management of the property of the husband does not fall within the scope of the convention if this management closely relates to the heritage reports resulting from the legal report (sentence of March 31, 1982, in Case 25/81, CHW/GJH, Court Case Law Series 1982, 1189, pp.
(2) Faillite
It is necessary to consider as rendered in the context of a bankruptcy or similar procedure a decision such as that of a French civil court based on Article 99 of the French law of 13 July 1967 and Condemning the de facto leader of a legal person to pay a certain sum to the mass (sentence of 22 February 1979 in Case 133/78, Gourdain/Nadler Reports of the jurisprudence of the Court 1979, pp. 733 to 786).
(4) Article 5, paragraph 1: Contractual matters
1. The place where the obligation has been or is to be fulfilled is determined in accordance with the law which regulates the disputed obligation under the rules of the jurisdiction seized (sentence of 6 October 1976 in case 12/76, Tessili/Dunlop, Case Law of the Court 1976, pp. 1473-1487).
2. If the place of performance of a contractual obligation has been designated by the parties by a valid clause in accordance with the national law applicable to the contract, the court of that place is competent to hear disputes relating to the same obligation under Article 5, paragraph 1, regardless of the compliance with the formal conditions provided for in Article 17 (sentence of 17 January 1980 in Case 56/79, Zelger/Salinitri, Case Law of the Court 1980, etc.)
3. The term "required" in section 5, paragraph 1, refers to the contractual obligation as the basis for judicial action, i.e., in the event of an exclusive sale contract, the obligation of the grantor (sentence of 6 October 1976 in case 14/76, De Bloos/Bouyer).
4. The appellant is entitled to the place of execution of the contract in accordance with article 5, paragraph 1, of the agreement, even if the formation of the contract is litigious between the parties (Trial of the Court of 4 March 1982 in case 38/81, Effer/Kantner, Jurisdiction of the Court 1982, pp. 825-836).
5. The obligation to consider for the application of Article 5 paragraph 1 of the Convention in the event of applications based on different obligations arising from a contract of representation that binds a dependent worker to a company is that which characterizes the contract, that is, the place where the work is performed (sentence of the Court of 26 May 1982 in Case 133/81, Ivenel/Schwab, 1982).
6. The concept of contractual matters is autonomous. Obligations for the purpose of paying a sum of money and finding their basis in the bond of affiliation between an association and its members fall under the "contractual matter", that these obligations flow directly from membership or result from decisions taken by the bodies of the association (COUR decision of 22 March 1983 in Case 34/82, Peters/ZNAV, Case Law of the Court of 1983,4).
7. For the purpose of determining the place of execution, within the meaning of Article 5 paragraph 1, the obligation to consider, in a dispute relating to a lawsuit filed by an architect responsible for making a project for the construction of houses, is the contractual obligation that serves concretely as a basis for judicial action.
In this case, this obligation is that of a debt of a sum of money payable to the defendant's home.
The place where the payment is to be made is determined by the law applicable to the contract (Trial of the Court of 15 January 1987 in Case 266/85, Shenavai/Kreischer, JO No. C 39 of 17 February 1987, page 3).
8. (a) On the question of whether the claim for compensation for a sudden and untimely breach of the contract falls under the notion of a contractual or quasi-legal matter, the Court of Justice replied that "a dispute relating to the abusive breach of an autonomous trade agency contract and the payment of commissions due in the performance of this contract is a contractual dispute within the meaning of Article 5 (1) of the Brussels Agreement. »
(b) She recalled that the concept of contractual matters should be considered as a "self-governing" concept (see decision of 22 March 1983, Peters/ZNAV case 34/82).
(c) The compensatory allowance for improper breach of a contract finds its basis for non-compliance with a contractual obligation.
(d) Finally, the Court refers to the Rome Convention of 19 June 1980 on the Law Applicable to Contractual Obligations, which includes (Article 10), in the area of the law applicable to the contract, the consequences of the total or partial non-performance of its obligations and consequently the contractual liability of the party to which the non-performance is attributable (Trial of the Court of 8 March 1988 in Case 9/87, Arcado/Haviland, JO of 8 March 1988).
5° Article 5, paragraph 2: Food bond matter
The matter of food obligations falls within the scope of the Convention even if it is an incidental application to a divorce procedure (decision of 6 March 1980 in case 120/79, De Cavel L./De Cavel J., Case Law of the Court 1980, page 731).
Article 5, paragraph 3: Criminal matter
1. The expression "the place where the harmless fact occurred" must be understood in that it is intended for both the place where the damage occurred and the place of the causal event.
As a result, the defendant may be appealed to the court, at the choice of the plaintiff, either to the place where the damage occurred, or to the place of the causal event at the origin of that damage (sentence of November 30, 1976 in case 21/76, Bier, Reinwater/Mines de potasse d'Alsace, Recueil de la jurisprudence de la Cour 1976, pages 1735 to 1748).
2. (a) The notion of criminal or quasi-delict material within the meaning of Article 5 (3) of the Convention shall be regarded as an autonomous concept that includes any application that aims to put the defendant's responsibility at stake, and that does not relate to the contractual matter within the meaning of Article 5(1).
(b) A competent court under Article 5 (3) to determine the element of a claim based on a criminal basis is not competent to hear other elements of the same application based on non-legal basis (sentence of 27 September 1988 in Case 189/87, Kalfelis/Schroder, OJ No. C 281 of 4 November 1988, page 18).
7° Article 5, paragraph 5: Branch, agency, establishment
1. The grantor of an exclusive sale may not be considered to be at the head of a branch, agency or establishment within the meaning of section 5, paragraph 5, when he is not subject to his or her control or direction (sentence of 6 October 1976 in case 14/76, De Bloos/Bouyer, Court Case Law Series 1976, pp. 1497-1511).
2. The Court gives an autonomous interpretation of the notions "operating a branch, agency or other institution".
(a) the concept of branch, agency or any other institution involves a centre of operations that is manifested in a sustainable way outside as a continuation of a mother house. This establishment must be provided with management and materially equipped so that it can negotiate business with third parties, in such a way that they know that a possible legal link. will be established with the mother house whose seat is abroad, are exempted from addressing directly to the mother house and may enter into business at the centre of operations that constitutes the extension of the house;
(b) the concept of exploitation includes:
1° disputes relating to contractual or non-contractual rights and obligations relating to the proper management of the agency, branch or establishment themselves, such as those relating to the rental of the building where such entities would be established or to the on-site engagement of the staff working therein;
2° the disputes relating to the commitments made by the above-mentioned centre of operations described or name of the parent house and to be carried out in the Contracting State in which the centre of operations is established;
3° the disputes relating to non-contractual obligations that would originate in the activities that the branch, agency or any other institution has assumed at the place where it is established on behalf of the parent house (decision of 22 November 1978 in case 33/78, Somafer/Ferngas, Case Law of the Court 1978, pages 2183 to 2195).
3. An "independent commercial agent" does not meet the specific conditions of a branch when it is free to organize its activity when the company it represents cannot prohibit it from representing at the same time several firms and when it only transmits orders to the parent house without participating in their rules or in their execution (Court decision of 18 March 1981 in Case 139/80, Blanckaert and Willems/Trost
4. Article 5 (5) shall be construed in that sense that it applies to a case where a legal person established in a Contracting State while not operating a branch, agency or establishment without autonomy in another Contracting State, nevertheless carries out its activities therein by means of an independent company bearing the same name and having the same direction that acts and concludes cases on its behalf and which it uses as a child extension (decision of the Court of the Court of the Court of the Court of the Republic of
7°bis. Article 6, paragraph 1: Plurality of defendants
For the purposes of article 6, paragraph 1, of the agreement, there must be a connexity link between the various requests made by the same plaintiff against various defendants, as there is an interest in judging them together in order to avoid solutions that could be inconsistent if the causes were judged separately (Court decision of 27 September 1988 in case 189/87, Kalfelis/Schrop.
8° Article 13: Sales and temporary loans
The Court ruled for an autonomous notion of temperament sale, but implicitly in that the notion of temperament sale cannot be understood as extending to the sale of a machine consented by a company to another company, at a price payable by staggered trades.
Jurisdictional privilege must be reserved only to buyers in need of protection (June 21, 1978, Case 150/77, Bertrand/Ott, Court Case Law Series 1978, pp. 1431-1447).
It should be noted that this article was amended in the 1978 convention in the meaning of the decision.
9° Article 16 (1): Real estate
1. The notion of "material of... property leases" should not be interpreted as including the case of a contract relating to the operation of a trade in a property leased by a third party lessor.
Article 16, paragraph 1, should not be interpreted in a broader sense than its objective (decision of 14 December 1977 in Case 73/77, Sanders/Van Der Putte).
2. Article 16 (1) applies to any contract for the rental of a building (sentence of 15 January 1985 in case 241/83, Rosler/Rottwinkel, Case Law of the Court 1985, pp. 99-129).
This decision, for the least controversial, was not followed in the Lugano Convention (see paragraphs 50 and 51). He did not respond to the views of the authors of the 1968 Convention (see the Jenard report, page 35 and Schlosser report. para. 164).
3. Article 16 (1) shall be construed in that sense that in a dispute whose purpose is to determine the existence of a lease agreement relating to a property located in two Contracting States (in this case Belgium and the Netherlands) are exclusively competent in respect of real property located in the territory of each Contracting State the courts of that State (sentence of 6 July 1988 in Case 158/87, Scheren
10° Article 16, paragraph 4: Patent matter
See the decision of 15 November 1983 in case 288/82 » Duijnsstee/Goderbaum, Jurisdiction of the Court 1983, pages 3663 to 3679.
11° Article 16, paragraph 5: Actions in opposition to enforcement
The actions in opposition to enforcement, as provided for in Article 767 of the German Code of Civil Procedure, shall, as such, fall within the jurisdictional rule of Article 16 paragraph 5 of the Convention, but that latter provision does not permit, however, to apply to the courts of the Contracting State of the place of execution, by way of an opposition to enforcement, the compensation between the right under which the performance is pursued and
According to the Court, this is, on the part of the appellant, a manifest diversion of proceedings with a view to obtaining indirectly, from the German courts, a decision on a debt for the examination of which these jurisdictions do not have jurisdiction under the convention (sentence of the Court of 4 July 1985 in case 220/84, As. Auto Teile/Malhe, Recueil de la jurisprudence de la Cour 1985, pp. 2267-2279).
12° Article 17: attributable conventions of jurisdiction
1. (a) It is not satisfied with the written form requirements set out in article 17 first paragraph in the event that the attributive clause of jurisdiction is contained in the general terms and conditions of sale of one of the parties, printed on the back of a contractual act, only if the contract signed by the two parties contains an explicit reference to these general terms and conditions and
(b) in the case of a contract concluded by reference to earlier offers made with reference to the general terms and conditions of one of the parties having an attributive clause of jurisdiction, it is only satisfied with the written form requirement provided for in article 17 first paragraph if the reference is express and therefore likely to be controlled by a party applying normal diligence (sentence of the Court of 14 December 1976 in case 24/76, Colzani/Ruwa Reports, 1976
2. (a) It is only satisfied with the formal requirements of Article 17 first paragraph, in the case of a contract concluded verbally, if the written confirmation of the seller with communication of the general terms and conditions of sale gave rise to a written acceptance by the buyer and
(b) the fact that the purchaser does not raise objections against a unilateral confirmation emanated from the other party is not acceptable with respect to the attributive jurisdiction clause, unless the verbal agreement. is within the framework of common trade relations between parties, established on the basis of general terms and conditions of one of them, including an attributive clause of jurisdiction (decision of 14 December 1976 in case 25/76, Segoura/Bonakdarian, Case Law of the Court 1976, pages 1851 to 1863).
3. (a) Article 17 (1) shall not be construed as excluding a contractual clause whereby each of the two parties to a contract of sale, which has their domicile in different States, shall be appealed only to the courts of that State and
(b) this article shall not be construed, in the above-mentioned case, as excluding the possibility for the judge seized under such a clause, to take into consideration a compensation related to the report of litigious law (Decision of the Court of 9 November 1978 in Case 23/78, Meeth/Glacetal, Case Law of the Court 1978, pp. 2133-2144).
4. (a) Internal procedural laws are excluded in the matters regulated by the Convention for the benefit of the provisions of the Convention and
(b) in the judicial proceedings introduced after the entry into force of the convention, the attributable clauses of jurisdiction, stipulated in the contracts of work, concluded prior to that entry into force, must be held for valid reasons, even in the case where they were deemed null under the national rules in force at the time of the conclusion of the contract (sentence of the Court of jurisprudence of 13 November 1979 in case 25/79, Sanicentral/Collin,
5. If the place of performance of a contractual obligation has been designated by the parties by a valid clause in accordance with the national law applicable to the contract, the court of that place is competent to hear disputes relating to the same obligation under article 5, paragraph 1, of the Convention, regardless of the compliance with the formal conditions set out in article 17 (decree of 17 January 1980 in case 56/79, Zelger/Salinitri, Reports of the jurisprudence of the
6. Article 17 shall be interpreted in that sense that a law of a Contracting State shall not preclude the validity of a jurisdictional attributing convention on the sole ground that the language used is not the law prescribed by its legislation (decision of 24 June 1981 in case 150/81, Elefanten Schuh/Jacqmain, Case Law of the Court 1981, pp. 1671-1690).
7. Article 17 must be construed in that, in the case of an insurance contract between an insurer and an insurance taker, stipulated by the insurer for himself and in favour of third parties and containing an extension of jurisdiction clause referring to disputes that may be raised by the said third parties, the latter may invoke this clause even if they have not expressly subscribed to it (July 14, Court of the Italian Court, 1983, pp.
8. In respect of billing, the Court rendered the following decision:
(a) The bill of lading delivered by the shipping carrier to the shipper may be considered a "confirmed in writing" agreement between the parties, within the meaning of Article 17. The jurisdiction clause applies if the parties have signed the bill of lading. If the jurisdiction attribute clause is included in the general conditions, the shipper must have expressly and in writing accepted it. The bill of lading signed by both parties must expressly refer to these general terms and conditions. However, if the marine carrier and the shipper maintain common commercial relations, which are governed as a whole by the conditions of the billing of the marine carrier, the jurisdiction attributive clause applies even in the absence of a written acceptance.
(b) The bill of lading delivered by the shipping carrier to the shipper may not be considered as a "confirmed in writing" agreement within the meaning of Article 17, vis-à-vis the third-party holder only if the third-party holder is bound by a convention with the shipping carrier under applicable national law. and if the bill of lading, as "written confirmation of this agreement" meets the formal conditions of Article 17 (Trial of the Court of 19 June 1984 in Case 71/83, Russ/Nova-Goeminne, Court Case Law Series 1984, pp. 2417-2436).
9. The judge of a Contracting State, before which the applicant has agreed to debate, without raising the exception of incompetence, an application for compensation based on a contract or a situation of fact other than that or that which is based on the claims of appeal, and for which an exclusive competence in favour of the judges of another Contracting State has been validly agreed under Article 17 is. pursuant to Article 18, competent (Decision of the Court of 7 March 1985 in Case 48/84, Spitzley/Sommer, Case Law of the Court 1985, pp. 787-800).
10. Article 17 first paragraph shall be construed in that it is satisfied with the formal condition that it enacts when it is established that the award of jurisdiction has been the subject of a verbal agreement expressly relating to this point, that a written confirmation of this agreement from any of the parties has been received by the other and that the latter has not made any objection (84 judgment of the Court of 11 July 1985, in the case of Berg1/9910)
11. A jurisdictional attribute convention shall not be considered to have been stipulated only in favour of one of the two parties within the meaning of Article 17 third paragraph of the Convention when it is merely established that the parties have agreed to the jurisdiction of a court or tribunals of a Contracting State in the territory of which that party has its domicile.
According to the Court, they must be considered as clauses, the terms of which indicate that they have been stipulated to the exclusive benefit of one of the parties, the clauses which expressly indicate the party in favour of which they have been, and those which, while specifying before which courts each of the parties must abort the other, give to one of them a greater choice of jurisdictions (sentence of the Court of 24 June 1986 in onnais 22/85
12. Article 17 shall be construed in that, where a written agreement with an attributive clause of jurisdiction and providing for, for its extension, the written form has expired but has continued to constitute the legal basis of the contractual relations between the parties, this clause satisfied the formal requirements of this article if, according to the applicable law, the parties could validly extend the original contract without observing the written form or if, in the opposite case,
Article 18: Tacite prorogation
1. (a) Article 18 is applicable even if the parties have conventionally designated a jurisdiction of another State since Article 17 is not among the exceptions provided for in Article 18 and
(b) Article 18 is applicable where the defendant contests the jurisdiction of the court and further concludes on the merits provided that the challenge of jurisdiction, if it is not preceded by any defence on the merits, is not after the time of the taking of position considered by national procedural law as the first defence addressed to the judge seized (sentence of 24 June 1981 in case 150/81, Elefanten Schuh/Jacqmain; Case law of the Court 1981, pages 1671 to 1690).
See also the judgements of 22 October 1981 in case 27/81, Rohr/Ossberger, of 31 March 1982 in case 25/81 C. H. W./G. J. H. and on 14 July 1983 in case 201 /82, Gerlin/Italian Public Prosecutor.
2. The judge of a Contracting State, to which the applicant has agreed to debate, without raising the exception of incompetence, an application for compensation based on a contract or a situation of fact other than that or that found on the basis of the claims of the appeal, and for which an attribution of exclusive jurisdiction in favour of the judges of another Contracting State has been validly agreed under Article 17 of the Convention of 27 September 1968
14° Article 19: Delaying of office
Article 19 imposes on the national judge the obligation to declare himself ex officio incompetent whenever he finds the existence of an exclusive jurisdiction of another Contracting State within the meaning of Article 16 of the Convention, even in the context of a cassation appeal, while the rule of national procedure limits the examination of the jurisprudence to the means invoked by the parties (sentence of the Court of 15 November 1983 in
15° Article 21 : Litispendance
1. See the decision of 7 June 1984 in case 129/83, Zelger/Salinitri.
2. The notion of litispendance referred to in Article 21 shall cover the case in which a party brought before a court of a Contracting State an application for the annulment or resolution of an international sale contract while a request by the other party for the execution of that contract is pending before a jurisdiction of another Contracting State.
It should also be noted that, according to the Court, the concepts used in article 21 to determine a situation of litispendance must be considered autonomous (decision of the Court of 8 December 1987 in case 144/86, Gubisch/Palumbo, JO No. C 8 of 13 January 1988, page 3).
16° Article 22:
Article 22 is not a jurisdictional attribute.
It is applicable only when related applications are filed before the courts of two or more Contracting States (decision of 24 June 1981 in case 150/81, Elefanten Schuh/Jacqmain, Case Law of the Court 1981, pages 1671 a 1690).
17° Article 24: Provisional and provisional measures
1. The membership of interim measures in the scope of the convention is determined not by their own nature but by the nature of the rights they provide for the safeguarding of it (Court of 27 March 1979 in Case 143/78, De Cavel Jacques/De Cavel Louise, Court Case Law Series 1979, pp. 1055-108).
2. With regard to the enforcement of judicial decisions authorizing interim and provisional measures, see infra article 27 (Order of 21 May 1980 in case 125/79, Denilauler/Couchet, Court Case Law Series 1980, page 1553).
3. Article 24 shall not be invoked to bring into the scope of the Convention the interim measures relating to matters excluded from it (Decision of the Court of 31 March 1982 in Case 25/81, C. H. W./G. J. H., Case Law of the Court 1982, pp. 1189-1205).
Article 26: Recognition
A foreign decision recognized under Article 26 must in principle deploy in the requested State the same effects as those in the State of origin.
But - will we add - subject to the reasons for refusal provided for by the convention (Decision of the Court of 4 February 1988 in case 145/86 Hoffmann/Krieg. See also in this case the interpretation given by the Court in articles 27, paragraphs 1 and 3, 31 and 36, OJ No. C 63 of 8 March 1988, page 6).
Article 27, paragraph 1: Public order
The use of the public order clause that must only play in exceptional cases is in any case excluded when the problem is that of the compatibility of a foreign decision with a national decision. This problem must be resolved on the basis of article 27, paragraph 3, which refers to the case where the foreign decision is inconsistent with a decision made between the same parties in the requested State (Court of 4 February 1988 in case 145/86, Hoffmann/Krieg, JO No. C 63 of 8 March 1988, page 6).
Article 27 (2): Rights of defence
1. Judicial decisions authorizing interim or interim measures rendered without the fact that the party against whom they are directed was not called to appear and intended to be executed, without having been previously served, do not benefit from the recognition and enforcement regime provided for in Title III of the Convention (sentence of 21 May 1980 in case 125/79, Denilauler/Couchet, Case Law of the Court 1980, page 3).
2. Article 27 (2) shall be interpreted in that sense that:
(a) the notion of "introductive act" includes an act, such as the injunction to pay (Zahlungsbefehl) of German law;
(b) a decision, such as the authorization of execution (Vollstreckungsbefehl) of German law, does not fall within the notion of "introductive act of proceeding";
(c) to assess whether the defendant has been able to defend himself within the meaning of section 27 (2), the judge required must only take into account the time limit, such as the time limit for filing a case against him (Widerspruch) in German law, for which the defendant has the right to avoid a decision that is enforceable under the agreement;
(d) Article 27 paragraph 2 remains applicable, where the respondent objected to the decision rendered by default and a State jurisdiction. of origin declared the opposition inadmissible on the grounds that the time limit for opposition had expired;
(e) even where a court of the State of origin has decided, following a separate adversarial procedure, that the service or notification was regular, Article 27 (2) requires that the requested judge consider, nevertheless, whether that service or notification has been made in due time for the defendant to defend himself;
(f) the judge may, as a general rule, be limited to examining whether the time limit, from the date on which the service or notification has been made regularly, has left the defendant a useful time for his defence; However, it is up to it to assess, if, in a case of a species, there are exceptional circumstances such as service or notification that, although regular, has not been sufficient to open such a period;
(g) Article 52 of the Convention and the fact that the judge of the requested State leads to the conclusion that, according to the law of that State, the defendant was domiciled in the territory of that State on the date of the service or notification of the introductive act of proceeding, have no impact on the above-mentioned replies (Michelle Court of Justice of 16 June 1981, in Case 166/93 pages
3. The judge of the requested State may, when he considers satisfied with the conditions laid down in article 27 paragraph 2, refuse the recognition and enforcement of a judicial decision, even if the jurisdiction of the State of origin has established, pursuant to the combined provisions of article 20 third paragraph and article 15 of the Hague Convention of 15 November 1965, that the defendant, who has not appeared, had
4. (a) Article 27 paragraph 2 is also applicable with respect to the obligation provided for therein of a service or notification in a timely manner of the act initiating proceedings when the service or notification took place in accordance with the period fixed by the judge of the State of origin or when the defendant was domiciled exclusively or not in the exchange in the State of that judge.
(b) The judge required, when examining whether the notification took place in a timely manner, may also take into account exceptional facts or circumstances that occurred after the regular notification.
(c) The circumstance that the plaintiff was aware, after the notification, of a new address of the defendant and the circumstance that the defendant is responsible for the fact that the regularly notified act did not reach him constitute elements that the required judge may take into account in order to assess whether the notification was made in due course (sentence of the Court of 11 June 1985 in case 49/84 Debaecker and Plouvier/Bouw79man, Court of 11 June 1985).
21° Article 27, paragraph 3: Inconciliarable decisions
A foreign decision condemning a spouse to pay food to his or her spouse under his or her maintenance obligations as a result of marriage is inconsistible within the meaning of Article 27 (3) with a national decision that divorced the spouses concerned (Court of 4 February 1988 in Case 145/86, Hoffmann/Krieg, OJ No. C 63 of 8 March 1988, page 6).
22° Articles 30 and 38: Notion of ordinary remedies
The Court ruled for an autonomous notion of the ordinary remedy. Makes a "regular remedy" any remedy that:
(a) is in a manner that may result in the cancellation or modification of the decision under the recognition or enforcement procedure and
(b) the introduction of which is linked in the State of origin to a period determined by law and taking place under the same decision (sentence of 22 November 1977 in Case 43/77, Industrial Diamond/Riva, Case Law of the Court 1977, pp. 2175-2191).
23) Article 31: Implementation
1. The provisions of the Convention impede that the party who has obtained, in a Contracting State, a judicial decision in its favour, which may be covered by the enforceable formula under Article 31 in another Contracting State, asks a court of the latter to condemn the other party to what it has been condemned in the first State (sentence of the Court in Case 42/76, De Wolf/Cox).
2. A foreign decision which has been taken from the enforceable formula in a Contracting State under Article 31 and which remains subject to enforcement in the State of origin, shall not continue to be carried out in the requested State when, according to the law of the latter State, execution cannot be granted for reasons beyond the scope of the convention.
In this case, a foreign decision condemning a spouse to pay food to his or her spouse under his or her maintenance obligations resulting from the marriage is inconsistent with a national decision that divorced the spouses concerned (Court of 4 February 1988 in Case 145/86, Hoffmann/Krieg, OJ No. C 63 of 8 March 1988, page 6).
24° Article 33: Election of domicile
(a) Article 33 second paragraph must be interpreted in that the obligation to elect domicile enacted by this provision must be fulfilled in the manner described by the requested State and, in the silence of this law as to when this formality must be fulfilled, at the latest in the meaning of the judgment granting the execution.
(b) The consequences resulting from the violation of the terms and conditions relating to the election of domicile are, pursuant to Article 33 of the Convention, defined by the law of the requested State, subject to the objectives set out in the convention, that is, the law of the requested State remains subject to the observance of the objectives set out in the convention: the sanction provided shall not, therefore, challenge the validity of the judgment granting the violation of the judgment in 1986.
25° Article 36: Exequatur procedure
1. (a) Article 36 of the Convention excludes any appeal by interested third parties against the decision; granting the exequatur, even when the domestic law of the State in which the exequatur is granted opens to these third parties a remedy.
(b) According to the Court, the Convention has created an exequatur procedure that constitutes an autonomous and comprehensive system, including in the area of remedies. The result is that section 36 excludes remedies that domestic law opens to interested third parties against an exequatur decision.
(c) The Convention, which is limited to the resolution of the exequatur proceedings and does not relate to the execution itself, which remains subject to the national law of the judge seized, the third parties concerned may bring against the measures of enforced enforcement the appeals which are open to them by the law of the State where the forced execution takes place (sentence of the Court of 2 July 1985 in case 148/asserie, Deutsche Genossenschaftsbank/Brbank
2. This article must be construed in that the party who has not filed the appeal against the exequatur provided for in section 31 - (in this case within one month of the meaning of the exequatur decision) - may no longer argue, at the stage of the enforcement of the decision, a valid reason that it could have invoked, in the context of this appeal, against the exercise. This rule must be applied ex officio by the courts of the requested State. However, this rule does not apply when it has the effect of requiring the national judge to subordinate the effects of a national judgment excluded from the area of the convention (divorce) to its recognition in the State of origin of the foreign decision whose execution is in question (sentence of the Court of Justice of 4 February 1988 in case 145/86, Hoffmann/Krieg, JO No. C 63 of 4 February 1988).
26° Article 37: Exequatur procedure
(a) Article 37 second paragraph must be interpreted in that it does not allow for the appeal in cassation and, in the Federal Republic of Germany, the "Rechtsbeschwerde" only against the ruling on the appeal.
(b) This provision cannot be extended in such a way as to allow for an appeal against a decision other than the ruling on the appeal, such as an appeal against a pre-hearing or interlocutory decision ordering the measures of instruction (Court decision of 27 November 1984 in Brennero/Wendel, Court Case Law Series 1984, pages 3971 to 3984).
27° Article 38: Exequatur procedure
1. See above, item 20 on the concept of ordinary remedies.
2. Article 38 second paragraph of the 27 September 1968 Convention concerning the Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters must be construed in that a court seized of an appeal against the authorisation of enforcement granted under the Convention may not subordinate the execution to the constitution of a guarantee only at the time when it decides on the appeal (Decision of the Court of 27 November 1984 in Case 258/83,
28° Article 39: Exequatur procedure
(a) According to Article 39 of the Convention, the party who has requested and obtained the enforcement authorization may, during the period specified in this Article, make direct precautionary measures on the property of the party against which the execution is requested, without being required to obtain a specific authorization.
(b) The party who has obtained the execution may proceed with the precautionary measures referred to in section 39 until the time limit for appeal under section 36 has expired and, if such an appeal is filed, until it has been decided on it.
(c) The party having taken the precautionary measures referred to in article 39 of the Convention shall not obtain, for the measures in question, a validation judgment as provided for by the national law of the judge seized (Decision of the Court of 3 October 1985 in case 119/84, Capelloni/Pelkmans, Case Law of the Court 1985, pp. 3147-3164).
29° Article 40: Exequatur procedure
The jurisdiction before the appeal of a party requesting enforcement under Article 40, second paragraph 1 of the Convention, must call to appear the party against whom the execution is requested, even when the application for opposition to the enforceable formula was rejected in the first instance for the sole reason that the documents had not been produced in due course.
This is because the convention formally requires that the proceedings be adversarial at the level of the appeal, without distinguishing according to the scope of the decision taken in the first instance (July 12, 1984) in P/K, Case Law of the Court 1984, pp. 3033-3043)
30° Article 54: Application of the convention in time
It is the result of section 54 that the only necessary and sufficient condition for the regime of the agreement to apply in respect of disputes relating to legal reports arising prior to the date of entry into force of the agreement is that the judicial action was filed after that date. Thus, even if the jurisdictional attribute convention was concluded before the entry into force of the convention and could be considered null under the law applicable to it: in this case it is a contract of work between a French worker and a German company to which the French law was applicable (sentence of the Court of 13 November 1979 in case 25/79, Sanicentral/Collin, 1979, Reports of the Jurisprudence 3423
31° Articles 55 and 56: Bilateral conventions.
Article 56 first paragraph of the Convention stating that the bilateral conventions referred to in Article 55 continue to produce their effects in matters to which the convention is not applicable, the judge of the requested State may apply them to decisions which, without reference to Article 1^er second paragraph is excluded from the scope of the convention. It is thus the application of the 1958 German-Belgian Convention, which may continue to produce its effects "in civil and commercial matters" regardless of the autonomous notion that the Court has given to this matter for the interpretation of the 1968 Convention (decision of 14 July 1977 in the attached cases 9/77 and 10/77 in question, Bavaria and Germanair/Eurocontrol, Recueil de la jurisprudence de la Cour 1977, pages 1517 to 1527).
32° Article 1^er second paragraph of the protocol annexed to the Convention (case of Luxembourg)
A person domiciled in Luxembourg is bound by a jurisdiction attribute clause only if this clause is the subject of a provision:
(a) that is particularly and expressly consecrated to it;
(b) that was "specially" signed by this party, the signature of the entire contract being not sufficient in this regard. It is not necessary for the clause to be mentioned in a separate document (Decision of the Court of 6 May 1980 in case 784/79, Porta Leasing/Prestige International, Case Law of the Court 1980, page 1517).
33° Article 11 of the Protocol annexed to the Convention
1. "Involuntary offence" means any offence whose legal definition does not require the existence of an intentional element and
2. Article 11 of the Protocol extends to any criminal proceedings relating to an involuntary offence "as long as the civil liability of the defendant arising out of the facts constituting the offence is retained or subject to further question" (sentence of 26 May 1981 in case 157/80, Rinkau, Court case law 1981, pages 1391 to 1484).
34° Article 11 of the Protocol of 3 June 1971
Courts of first instance that do not adjudicate on appeal are not competent to request the Court of Justice to adjudicate on a matter of interpretation of the convention.
See order of the Court of Justice of 9 November 1983 in case 80/83, Habourdin/Italocremona (Recollecting the Jurisdiction of the Court 1983, pages 3639 to 3641) and order of 28 March 1984 in case 56/84, Von Gallera/Maître (Recollecting the Jurisdiction of the Court 1984, pages 1769 to 1772).
For the consultation of the table, see image
4. Cases in progress as of 1^er February 1989
133. The Court of Justice has before it a number of prejudicial decisions. These are:
(a) Case 32/88, Six Constructions/Humbert
Article 5 (1) - Work contract
Whod if this is a work contract that runs in several countries?
OJ No. C 55 of 26.2.1988, p. 12.
(b) Case 36/38, Schilling/Merbes
Article 27 (2)
Quid if the introductive act of proceeding has not been served or notified to the defendant regularly failing, but in good time to defend himself?
JO No. C 79 of 26.3.1988, p.4
This case was terminated as a result of the withdrawal of the appeal.
(c) Case 115/88, Reichert-Kockler/Dresdner Bank
Article 16 (1) - Notion of real property rights
OJC 125 of 12.5.1988, p. 13.
(d) Case 220/88, Sté Dumez Building/Sté Hessische Landesbank
Article 5 (3)
OJ No. C 226 of 1.9.1988, p.6.
(e) Case 305/88, Lancray SA/Firma Peters und Sickert KG
Article 27 (2)
OJ No. C 300 of 25.1.1988, p. 10.
(f) Case 365/88 Congress Agentur Hagen GmbH/Zeehaghe BV
Article 5 initio and paragraph 1 and article 6 initio and paragraph 2
OJ No. C 20 of 26.1.1989, p. 8. .
Annex I
LEGISLATION IN THE MEMBERS OF THE EFTA
THE RECOGNITION AND EXECUTION OF THE
A. AUTRICHE
134. Foreign judgments in civil and commercial matters are not recognized and cannot be executed in Austria unless a treaty is in force with the State in which the judgment was rendered. However, foreign judgments regarding the state and capacity of persons are recognized in most cases, although there are no legal provisions that impose this recognition. However, a foreign judgment that is neither recognized nor executed in Austria can be a certain amount of evidence. The value of evidence granted to a foreign judgment will depend on the circumstances of the case.
B. FINLAND AND SUEDE
135. The essential principle of Finnish and Swedish legislation is that foreign judgments are neither recognized nor enforced unless a legal provision requires to do so. There are very few such provisions and they are almost always based on international conventions or agreements. Most of these provisions concern only decisions on specific issues such as certain aspects of international transport, food obligations or civil liability in the field of nuclear energy.
What has just been said does not apply, however, to decisions regarding state and capacity. These decisions are recognized in most cases, although there are no legal provisions that impose this recognition.
The fact that in the absence of legal provisions in this matter foreign judgments are neither recognized nor executed in Finland and Sweden does not mean that these judgments have no value in these countries. In the first place, a foreign judgment may be invoked as evidence of certain facts or as an indication of the contents of the applicable foreign law. In Finnish and Swedish law ii does not generally exist any evidence that is "dismissible. In light of this principle, the court may take into account the facts set out in a foreign proceeding and the reasons for decisions of foreign courts. Of course, the value of evidence granted to a foreign judgment will depend on the circumstances of the case of a species and in particular on the confidence of the foreign court. In certain situations, and in particular where, under the jurisdiction of conflict of law, the dispute must be settled on the basis of the material law of the foreign court and that the court has applied the same law (lexfori), the foreign judgment may reject the burden of proof on the party that contests the outcome. If the judgment of a foreign court concerns real property under its jurisdiction, the dispute will not be subject to, at least in most cases, a substantive review.
Secondly, a foreign judgment may be of great value in Finland and Sweden also in cases where the courts of Finland and Sweden do not have jurisdiction and where, however, a party has an interest in availing itself of the judgment in the country concerned, for example, in order to obtain the execution of a judgment on a monetary conviction. For example, if a foreign court has exclusive jurisdiction to hear a dispute under a court choice clause, the Finnish and Swedish courts will generally declare themselves incompetent. However, the judgment of the foreign court chosen quorum prorogatum cannot be executed as such in Finland or Sweden. In such cases, the plaintiff may bring an action before a Finnish or Swedish court invoking the foreign judgment. In such circumstances the court will most likely renounce the matter on the merits and will base its decision on the foreign judgment, In any case there will be no revision to the merits of the foreign judgment.
C. ISLAND
136. The fundamental principle of Icelandic law is that foreign judgments are neither recognized nor enforced unless otherwise provided by law. So far, such provisions are always based on international conventions. However, foreign judgments regarding the state and capacity of natural persons are generally recognized even if there are no legal provisions for their recognition. However, foreign judgments that are not recognized or executed in Iceland may be of some value. This is due to the fact that the evidence is widely admissible in Icelandic courts. The findings of facts referred to in a foreign judgment are likely to be of certain importance.
D. NORVEGE
137. Foreign judgments in civil and commercial matters are not recognized and cannot be executed in Norway unless a treaty has been concluded with the State in which this judgment was rendered.
However, foreign judgments concerning the state and capacity of persons are recognized in Norway, even if there is no treaty with the State in question, provided that certain criteria are met.
With regard to judicial jurisdiction and enforcement of judgements based on a jurisdictional attribute convention, Norway applies a procedure similar to those applicable in Finland and Sweden (see supra, No. 135).
The statement in No. 135 on the value of proof of a foreign judgment also applies to Norway.
E. SWITZERLAND
138. In Switzerland, the rules relating to international jurisdiction and the principles governing the recognition and enforcement of foreign judgments were, up to a recent past, dispersed in several legal sources which were, in part, federal and, in part, cantonal. On several issues related to international jurisdiction, neither federal law nor cantonal law contained ex-press rules. In such situations; the principles of inter-cantonal law were applied, by analogy, to international cases.
On 18 December 1987, the Swiss Parliament adopted a new law on private international law. This new law will come into force on 1^er January 1989, contains provisions on the international jurisdiction of the Swiss courts and on the recognition and enforcement of civil and commercial judgements. These provisions replace the current provisions of cantonal and federal law relating to jurisdiction and recognition and enforcement of judgments. Accordingly, the recognition and enforcement of judgments in civil and commercial matters will be entirely governed by federal law which precedes cantonal law. According to the LDIP, reciprocity will no longer be a formal condition for obtaining recognition or enforcement of a foreign judgment. In fact, the effects of the reciprocity criterion are replaced by the new system of control of the jurisdiction of the State of origin.
- Under Article 25, a foreign decision will be recognized in Switzerland:
(a) if the courts of the State of origin were competent in accordance with the IPL:
(b) if it is no longer subject to ordinary appeal or is final;
(c) if there is no grounds for refusal within the meaning of section 27 of the IPL.
- Under section 26 of the IDA, the jurisdiction of the foreign court is based on:
(a) if it results from a provision of the LDIP (in respect of contracts and civil liability, for example, articles 112 to 115 and, in respect of corporate law, articles 151 to 153) or, in the absence of such a provision, if the defendant was domiciled in the State of origin;
(b) if, in heritage matters, the parties have submitted a valid agreement under the IPL to the jurisdiction of the court that rendered the judgment;
(c) if, in matters of heritage, the defendant proceeded to the merits without contesting the jurisdiction of the Court or without making any reservation in that regard (except incompetentiae internationalis);
(d) if, in the event of a counterclaim, the court was competent to determine the main application and whether there is a connexity between the two applications.
- Under Article 27 first paragraph of the IDA, a foreign judgment will not be recognized if recognition is manifestly contrary to the Swiss public order.
- Under Article 27 second paragraph, recognition of a judgment will also be denied if the party against which it is requested establishes:
(a) that it has not been cited regularly, in accordance with the law of its domicile, or in accordance with the law of its habitual residence, unless it has proceeded to the merits without making a reservation;
(b) that the judgment was rendered in violation of fundamental principles arising from the Swiss conception of procedural law, including that the said party was not given the opportunity to assert its means;
(c) a dispute between the same parties and the same object:
(i) has already been introduced to Switzerland, or
(ii) has already been tried by a Swiss court;
(iii) has already been tried in a third State provided that the latter decision meets the conditions of recognition in Switzerland.
Pursuant to Article 29 first paragraph, a judgment which is recognized under Articles 25 to 27 of the IPL is declared enforceable in Switzerland upon request of any interested party. The application is submitted to the competent authority of the canton where the foreign judgment is invoked. The following documents are attached to the request:
(a) a complete and authentic shipment of the decision;
(b) an attestation that the decision is no longer subject to ordinary appeal or is final;
(c) if the decision has been rendered by default, an official document stating that the deficient party has been cited regularly and has been given the opportunity to assert its means.
In recognition and enforcement proceedings, the party against which the execution is prosecuted must be heard (Article 29, second paragraph).
ANNEX II
CONVENTIONS EXISTANTS CONCERNING THE MEMBERS OF THE
EUROPEAN DE LIBRE-ECHANGE (EELE)
139. Apart from the conventions dealing with specific issues, there are various conventions on the recognition and enforcement of judgments that have been concluded between certain member states of the EFTA and certain States of the European Communities. These are the conventions listed in Article 55 of the Lugano Convention and concluded between Denmark, Finland, Iceland, Norway and Sweden, of the bilateral treaties concluded between Austria and Belgium, Spain, France, Italy, Luxembourg, the Netherlands, the Federal Republic of Germany and the United Kingdom, of the bilateral treaties concluded between the Swiss Confederation and Belgium, Spain and the United Kingdom.
In addition to the conventions dealing with specific issues, various conventions on recognition and enforcement were also concluded between the EFTA member states. This is the above-mentioned convention between Denmark, Finland, Iceland, Norway and Sweden, of the bilateral conventions concluded by Austria with Finland, Norway, Sweden and the Swiss Confederation and of the bilateral agreement between Sweden and the Swiss Confederation, which are listed in Article 55 of the Lugano Convention. Thus, relations between Switzerland, on the one hand, Finland, Iceland and Norway, on the other hand, as well as relations between Austria and Iceland, suffer from the absence of such conventions.
There are also differences from one convention to another. The agreement between Switzerland and France is based on a "direct" competence, while all others are based on an "indirect" competence. These conventions still have other differences that need not be examined in detail; in particular, they concern the determination of the competent courts and the conditions under which recognition and enforcement are subject.
ANNEX III
FINAL ACT
Les représentants :
DU GUVERNEMENT DU ROYAUME DE BELGIQUE,
DU GUVERNEMENT DU ROYAUME DE DANEMARK,
THE GOVERNMENT OF THE GERMANY FEDERAL REPUBLIC,
OF THE HALNICAL REPUBLIC,
THE GOVERNMENT OF THE SPANISH ROYAUME,
OF THE GOVERNMENT OF THE FRENCH REPUBLIC,
THE GOVERNMENT OF IRELAND,
OF THE GOVERNMENT OF IsLAND REPUBLIC,
OF THE GOVERNMENT OF THE ITALIAN REPUBLIC,
DU GUVERNEMENT DU GRAND-DUCHE DE LUXEMBOURG,
DU GUVERNEMENT DU ROYAUME DES PAYAUME-BAS,
DU GUVERNEMENT DU ROYAUME DE NORVEGE,
THE GOVERNMENT OF THE REPUBLIC OF AUTRIA,
OF THE GOVERNMENT OF THE PORTUGAISE REPUBLIC,
DU GUVERNEMENT DU ROYAUME DE SUEDE,
DU GUVERNEMENT DE LA CONFEDERATION SUISSE,
OF THE FINLAND REPUBLIC,
DU GUVERNEMENT DU ROYAUME-UNI DE GRANDE-BRETAGNE ET D'IRLANDE DU NORD,
At the Diplomatic Conference on Judicial Jurisdiction in Civil Matters, held in Lugano on sixteen September, nine hundred and eighty-eight, found that the following texts were prepared and arrested at the conference:
I. The Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters.
II. The following protocols that form an integral part of the Convention:
- No. 1 concerning certain problems of competence, procedure and enforcement,
- No. 2, on the uniform interpretation of the Convention,
- No. 3, concerning the application of Article 57.
III. The following statements:
- declaration of representatives of the governments of the States signatories to the Lugano convention members of the European Communities on Protocol No. 3 concerning the application of Article 57 of the Convention,
- statement by the representatives of the Governments of the States signatories to the Lugano convention members of the European Communities,
- declaration of the representatives of the governments of the States signatories to the Lugano convention members of the European Free Trade Association.
(1) In this case, Belgium, the Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands.
(2) Convention of 9 October 1978 relating to the accession of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ No. L 304 of 30.10.1978) and Convention of 25 October 1982 relating to the accession of Greece (OJ No. L 388 of 31.12.1982).
(3) The Jenard and Schlosser reports were published in OJ No. C 59 of 15.3.1979. The report of Mr. Evrigenis and Mr. Kerameus was published in OJ No. C 298 of 24.11.1986.
(4) In order to align the British conception of the home with that of many countries on the continent, the Civil Jurisdiction Act 1982, which introduces the convention into the law of the United Kingdom, regulates this issue in article 41. According to this Act, a person is considered to be domiciled in the United Kingdom if he or she resides there and the nature and circumstances of his or her residence indicate that there is an effective link between his or her residence and the United Kingdom. In Ireland, see Jurisdiction of Courts and Enforcement of judgments (European Communities) Act 1988, Section 13 and 5 in Schedule.
(5) Article 6 of the Rome Convention states that:
“1. Notwithstanding the provisions of Article 3, in the employment contract, the choice by the parties of the applicable law may not result in depriving the worker of the protection provided for by the mandatory provisions of the law which would be applicable, if no choice, under paragraph 2 of this Article.
2. Notwithstanding the provisions of Article 4 and in the absence of a choice in accordance with Article 3, the contract of work shall be governed by:
(a) by the law of the country where the worker, in performance of the contract, usually performs his or her work, even if he or she is temporarily seconded to another country, or
(b) if the worker does not usually perform his or her work in a country, by the law of the country in which the worker is employed, unless it is the result of all the circumstances that the employment contract has closer ties with another country, in which case the law of that other country is applicable. »
(6) These international agreements are numerous and include areas such as maritime, air, road and rail transport or food obligations. For example, see the Jenard report, pages 59 and 60.
(7) During the negotiations, the distinctions made by the Vienna Convention on the Law of Treaties (Article 2 (f) and (g)) between the Contracting State and the State party were not taken into account. The term "contracting State" is intended as well, as in the Brussels Convention, a State which has consented to be bound by the convention either by ratifying it or by acceding to it, that a State in respect of which the convention is in force.
(8) ° Non-European Territories dependent on the United Kingdom having expressed interest in participating in the EEC/EFTA Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters: Anguilla, Bermuda, British Virgin Islands, Montserrat and the Turks and Caicos Islands, Hong Kong.
- Non-European territories dependent on the United Kingdom other than those mentioned above:
- Caribbean and North Atlantic: Cayman Islands,
- South Atlantic: British Antarctic Territory, Falkland Islands, South Georgia and South Sandwich Islands, St. Helena and Dependencies (Ascension) (Tristan da Cunha),
- Indian Ocean: British territory of the Indian Ocean,
- South Pacific: Pitcairn, Henderson, Ducie and Oeno.
(9) Section 59 of the federal constitution is as follows:
“1. For personal claims, the creditor domiciled in Switzerland must be sought before the judge of his domicile; its property may therefore not be seized or sequestered outside the canton where it is domiciled under personal claims.
2. remain reserved for foreigners; the provisions of international treaties. »
(10) Note that so far a draft regulation contains such provisions.
(11) Much of this section is taken over from MM's work. Weser-Jenard : Manuel de droit international privé Van der Elst, volume II : Les conflits de juridictions, Bruylant Bruxelles, 1985.
List of related States
For the consultation of the table, see image
For viewing the footnotes, see image