European Parliament Votes to Recast the Brussels I Regulation
Yesterday (20 November 2012) the European Parliament voted, in plenary session, to adopt the report of the Legal Affairs (JURI) Committee (rapporteur: Tadeusz Zwiefka) on the Commission’s Proposal (COM (2010) 748) to recast the Brussels I Regulation. A substantial majority (567-28, 6 absentions) expressed support for the Proposal, subject to the JURI Committee’s amendments. As followers of the process will be aware, the result is a mixed one for the Commission. Although its primary objective of abolishing (procedural) exequatur is supported by the Parliament, other features of the Proposal (most notably, the recommendations to restrict the substantive grounds for opposing enforcement and to harmonise rules of jurisdiction for defendants not domiciled in a Member State) have been ejected.
The focus now moves to the Council, which is due to meet next month to consider its own position on the Proposal and on the amendments put forward by the European Parliament. The changes will not likely enter into force for another 24 months.
The wheels of European private international law keep turning.
Well, yes. The Commission did get the abolition of exequatur, but did not succeed in its objective of getting a review in the state addressed abolished in all but exceptional circumstances. Applications can still be made, in the state addressed; it’s just that the onus is now on the ‘interested party’ (who will now usually be the judgment debtor) to apply for the non-recognition of the judgment rather than the other way around.
Probably the most important changes, at least for commercial cases, are (1) the reversal of the Gasser decision – that is, the reversal of lis alibi pendens priority rule in cases where there is a choice of court clause; and (2) the addition of four new recitals intended to isolate arbitration from the workings of the Regulation and to mitigate the effects of the West Tankers decision.
Perhaps the biggest set-back for the Commission was the abandonment of the attempt to abolish Artiucle 4, so that the Brussels I rules would apply to preoceedings even against non-EU domiciled defendants. National rules remain for that purpose, although there are now provisions enabling EU proceedings to be stayed in favour of prior proceedings in non-member states.
The Council is most unlikely to make any further changes to the text, as it entered into an informal ‘first reading agreement’ with the Parliament to adopt it in this form if the Parliament did so. It will start to apply 24 months after its publication in the OJ, so probably early in 2015.
The overall effect is that, after several years of wrangling, remarkably little will have changed.
Dear Alex,
Should we understand that your implicit conclusion is that the recast process should not have been started in the first place?
To be sure, it is hard to blame the commission for the result.
Indeed, I think that debate is always good. Whoever started this debate is to be thanked.
The Commission’s approach to this review was a model for future exercises of this kind. Some aspects of the Proposal were, of course, open to criticism and it has rightly been pruned and amended (albeit not to everyone’s taste). Nevertheless, Gilles is right that the debate and opportunity for reflection have on the whole been positive.
Dear Gilles,
Of course not. You know me too well to think that that might be my view. I am sorry that the debate has not been more fruitful in the result. I think the role of Council in pressing for an early end to the negotiations between the institutions is problematical, as are first-reading agreements in the ‘trilogue’. They led on this occasion to an over-hasty end to what had been a potentially very productive process.
In particular I think that there was serious room for widening the reflexive effect of the regime, especially for choice of court agreements in favour of third countries, and for other careful extensions into the international legal order. The Commission’s proposals were bold, possibly too bold, but deserved far more careful consideration than they got. The attention of the international litigation community focussed far too much on arbitration to the exclusion of these issues.
Maybe next time.