Regulation (EC) 44/2001 to be replaced by Regulation (EC) 1215/2012

Posted on: 23 Jul 2013

Category: News

On 12 December 2012, the European Parliament and the Council adopted Regulation (EC) 1215/2012 (?Recast Regulation?) which replaces Regulation (EC) 44/2001 (?Brussels I Regulation?) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and shall apply from 10th January 2015.? The Brussels I Regulation provides a harmonised approach to determining which EU Member State court should have jurisdiction over a dispute and how judgments from courts in one EU Member State should be recognised and enforced in other EU Member States. Experience with the Brussels I Regulation has presented some shortcomings over the years. The purpose of the Recast Regulation was consequently to reformulate certain aspects of the existing law to better address contemporary needs, while retaining its principal objective of facilitating the free circulation of judgments and to further enhance access to justice.

The principal changes are, inter alia, the following:

  • The abolition of exequatur (the intermediate procedure for the recognition and enforcement of judgments)
  • Extension of the jurisdiction rules in the Brussels Regulation to disputes involving defendants who are not domiciled in an EU Member State
  • Enhancement of effectiveness of choice of court agreements
  • Improvement of the interface between the Brussels Regulation and arbitration
  • Better coordination of parallel proceedings
  • Clarification on the circulation of provisional and protective measures in the EU

? ? ? ?1. 1 ???? The abolition of exequatur

The Brussels I Regulation requires a declaration of enforceability for a judgment given in one Member State to be enforced in another Member State; however the Recast Regulation provides that judgments given in a Member State which is enforceable in that Member State shall be enforceable in the other Member State without any declaration of enforceability being required. ?A party who wishes to invoke in a Member State a judgment given in another Member State shall produce:

  • A copy of the judgment which satisfies the conditions necessary to establish its authenticity; and
  • A certificate issued by the court of origin in the form as provided in Annex I of the Recast Regulation.

Having said this, the Recast Regulation still provides for grounds where enforcement of a judgment can be refused in Article 45 (currently Article 34 and 35 of the Brussels I Regulation).

????? 1. 2???? Enhancement of effectiveness of choice of court agreements

The Recast Regulation addresses one of the major problems with the existing Brussels I Regulation by strengthening the protection given to jurisdiction agreements. ?Italian torpedoes?, aimed at undermining contractual jurisdiction clauses by rushing to the favoured court in order to gain advantage of first seizure, should become things of the past because the Recast Regulation now gives the court chosen by the parties precedence over all other courts regardless of when proceedings are started.

The Recast Regulation inserts an important exception to the general rule that any court other than the court first seised must stay its proceedings pending a decision by the court first seised. Under Article 31(2) of the Recast Regulation, if the parties have conferred exclusive jurisdiction on a particular court, that court may proceed to hear the case even if it was not first seised. All other courts must halt their proceedings once the designated court has established that it has jurisdiction. Consequently, where the parties have agreed to exclusive jurisdiction of particular courts, this removes incentives to start proceedings elsewhere because doing so will no longer trump the jurisdiction of the chosen court.

? ? ? 1. 3???? Extension of the jurisdiction rules in the Brussels I Regulation to disputes involving defendants who are not domiciled in an EU Member State

National rules of jurisdiction may no longer be applied by Member States in relation to consumers and employees domiciled outside an EU Member State.? The same will also apply to parties domiciled outside an EU Member State 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.

????? 1. 4?? The Arbitration Exception

One of the liveliest debates in relation to the Brussels I Regulation concerned the nature of its ?arbitration exception?. According to Article 1.2(d) of the Brussels I Regulation, arbitration is explicitly excluded from the scope of the legislation; but (in broad terms) that exception was watered down by a series of court decisions (particularly in relation to court proceedings connected with arbitration).

In light of such developments, the Recast Regulation sought to clarify the scope of the arbitration exclusion. The new provision states that EU Member State courts have the right to refer parties to arbitration, stay or dismiss proceedings, or examine the validity of an arbitration agreement. Moreover, an EU Member State court ruling on the validity of an arbitration agreement is not subject to the rules of recognition and enforcement of the Brussels I Regulation, regardless of whether arbitration is a principal or incidental question. EU Member State courts may recognise and enforce arbitral awards under the New York Convention, which takes precedence over the Brussels I Regulation, even if the arbitral award conflicts with another EU Member State court judgment (for example, if the court ruled that the arbitration agreement was invalid).

Useful links: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:351:0001:0032:En:PDF

For more information, kindly contact Dr Gerladine Baldacchino.