Johannes Schmidt on Legal Certainty in European Civil Procedure Law
Johannes Schmidt’s doctoral thesis on “Legal Certainty in European Civil Procedure Law. An Analysis of ECJ Judgments Regarding the Brussels Convention and the Brussels I Regulation.” (Rechtssicherheit im europäischen Zivilverfahrensrecht – Eine Analyse der Entscheidungen des EuGH zum EuGVÜ und der EuGVVO; Mohr Siebeck, Tübingen, 2015) has just been published in German. The doctoral dissertation was written under the supervision of Professor Rolf Stürner and was accepted by the University of Freiburg.
When interpreting the Brussels Convention and the Brussels I Regulation, the European Court of Justice (CJEU) has regularly employed the concept of legal certainty in various contexts. Johannes Schmidt questions if and to what extent the case law of the CJEU actually contributes to legal certainty. For this purpose, he scrutinizes at first, if the methodical criteria of “adherence to the wording” and “continuity of the case law” make the decisions of the CJEU foreseeable. Secondly, the results reached by the CJEU are analysed with respect to the principle of legal certainty. This part takes the perspective of the lawyers and courts who have to apply the European civil procedure rules in their interpretation by the CJEU. It investigates the foreseeability of jurisdiction and lis pendens and it raises the question, which price is to be payed for legal certainty.
The study comes to a critical conclusion. The last part suggests changes, mainly with regard to the style of reasoning.
Thanks to Johannes Schmidt for providing the text.
Will this book be translated to English in the near future?
A curious legal uncertainty seems to be raised by the interaction between the Recast Brussels I Regulation and the Lugano Convention of 2008. By Art 73(1) of the Recast Regulation, that Regulation “shall not affect the application of the 2007 Lugano Convention” with the effect that where both regimes apply on their terms, the Lugano Convention takes precedence. On the other hand, Art 64 of the Lugano Convention says that the Convention does not prejudice the application of Council Regulation (EC) No 44/2001 within EU member states. But that regime has no application to proceedings begun after 9 January 2015. The result seems to be that, until Art 64 of the Lugano Convention is amended to refer to the Recast Regulation 1215/2012, member state courts must apply the Lugano Convention and not the Recast Regulation even where there is no factor connecting the case to Switzerland, Norway or Iceland. So, for instance, where a French domiciliary is sued in England by virtue of a jurisdiction agreement or because England is the place for performance of the contractual obligation in question, it appears that the English court derives its jurisdiction from the Lugano Convention and not from the Brussels I Regulation Recast.
This is an interesting idea, but the Recast Regulation provides otherwise. Pursuant to Article 80 sentence 2 of Brussels Ibis, “References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex III”. This automatic translation applies not only to EU Regulations, but to Article 64 of the Lugano Convention of 2007 as well because the Lugano Convention is part of EU law as it has been ratified by the EU and not by its Member States (except Denmark; cf. Articles 3(2) and 216(1) TFEU).
Dear Kaihsing Tung,
I am sorry, but there will be no english translation.
I agree with Jan von Hein’s observation that the effect of Article 80 of Regulation 1215/2012 is that Article 64(1) of the Lugano Convention now effectively refers to Regulation 1215/2012 instead of 44/2001, which does fully deal with my original concern. Thank you. But I’m not persuaded by the reasoning that the “Lugano Convention is part of EU law as it has been ratified by the EU”. While the EU institutions had the competence to approve the Convention (as declared in the opinion of the European Court of Justice on 7 February 2006 – Opinion 1/03) it cannot be competent to the EU unilaterally to make changes to a Convention to which non-EU states are party. No doubt in theory the Convention could say one thing as between EU member states (as a matter of EU law) and another thing insofar as it affected the three EFTA states. But the thrust of the reasoning of the ECJ in giving opinion 1/03 was that despite article 64 (“the disconnection clause”) the Lugano Convention impacted on jurisdiction within the EU (see para 157 particularly). It follows that the impact necessarily works the other way round as well: changes to Regulation 44/2001 impact on jurisdiction within the three EFTA states. So I don’t see that Article 80 of 1215/2012 could amend the Lugano Convention on its own. The reason why Jan von Hein is correct in his conclusion is that Article 64(1) of the Lugano Convention expressly says that Convention shall not prejudice the application by the Member States of the European Community of Regulation 44/2001 “as well as any amendments thereof”. That latter phrase seems sufficient to include Regulation 1215/2012 and binds the EFTA states to the new interface between 1215/2012 and the Lugano Convention.
Dear, I am writing a thesis in Legal Certainty in Conflict Of Laws (Baghdad University- Iraq), and it will be great if you provide a list with the judgments used in the thesis.
Dear Laith Al Anbari,
please see the table of contents: http://d-nb.info/1068235195/04 You will find most of the decisions of the CJEU which I discussed in my thesis in the headlines.
Dear Johannes Schmidt,
Thanks for the feedback. Can you please provide an English translation, I will try to use the Google Translation, but I don’t think it will accurate.