Brussels I Recast Set in Stone

At its 3207th meeting held in Brussels, the Council of the European Union has approved the recast of the Brussels I Regulation in the form settled with the European Parliament in a first reading agreement. The accompanying press release announces as follows:

The purpose of this regulation is to make the circulation of judgments in civil and commercial matters easier and faster within the Union, in line with the principle of mutual recognition and the Stockholm Programme guidelines.

The recast regulation will substantially simplify the system put in place by “Brussels I” as it will abolish exequatur, i.e. the procedure for the declaration of enforceability of a judgment in another member state. According to the new provisions, a judgment given in a member state will be recognised in the other member states without any specific procedure and, if enforceable in the member state of origin, will be enforceable in the other member states without any declaration of enforceability.

The recast regulation will provide that no national rules of jurisdiction may be applied any longer by member states in relation to consumers and employees domiciled outside the EU. Such uniform rules of jurisdiction will also apply in relation to parties domiciled outside the EU in situations where the courts of a member state have exclusive jurisdiction under the recast regulation or where such courts have had jurisdiction conferred on them by an agreement between the parties.

Another important change will be a rule on international lis pendens which will allow the courts of a member state, on a discretionary basis, to stay the proceedings and eventually dismiss the proceedings in situations where a court of a third state has already been seized either of proceedings between the same parties or of a related action at the time the EU court is seized (sic).”

Under Art. 81, the recast Regulation (“Brussels 1a”?) will apply from a date 24 months after its entry into force, being 20 days after its publication in the Official Journal. The new rules will not, therefore, apply until early 2015, by which time their potential impact will likely have been closely scrutinised on this site and elsewhere. The UK and Ireland are taking part in the adoption of the recast Regulation, which will also be applicable to Denmark under the terms of the 2005 Agreement between that country and the EC extending the Brussels I regime.

One thought on “Brussels I Recast Set in Stone

  1. Jan von Hein

    It is rather surprising that the Council argues that “[t]he recast regulation will provide that no national rules of jurisdiction may be applied any longer by member states in relation to consumers and employees domiciled outside the EU”.
    Actually, Article 6 of the Recast Regulation provides that, “[i]f the defendant is not domiciled in a Member State, the jurisdiction of the courts of each
    Member State shall, subject to Article 18(1) [...] be
    determined by the law of that Member State.” Article 18(1), however, only concerns the scenario where a consumer brings proceedings against the other party, i.e. the party pursuing a commercial or professional activity. In this regard, it is true that the recast Regulation now opens the possibility of suing in the EU consumer’s forum a professional who is domiciled in a third state, because of the inserted phrase “regardless of the domicile of the other party”. The picture is quite different, though, when we look at proceedings brought by a professional against a consumer. In this regard, Art. 18(2) provides that “[p]roceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled”. If the consumer is domiciled in a third state, one has to infer a contrario that we have to apply Art. 6 again, which is explicitly left untouched by Article 17(1) (“without prejudice to Article 6″). Yet Art. 6(1) does not contain a carve-out for Art. 18(2). This leads to the conclusion that jurisdiction against consumers domiciled in a third state is still governed by domestic rules on civil procedure. So, is the press release plainly wrong on this point? Does the Council know what it is legislating? Or have the members of the Council finally adopted the controversial theory of a reflexive effect of exclusive EU jurisdictional rules vis-à-vis third states? Food for thought, indeed….

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