![Brussels Regime](https://upload.wikimedia.org/wikipedia/commons/5/56/Brussels_Regime.svg)
The Brussels Regime is a set of rules regulating which courts have
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
in legal disputes of a civil or commercial nature between individuals resident in different member states of the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
(EU) and the
European Free Trade Association
The European Free Trade Association (EFTA) is a regional trade organization and free trade area consisting of four List of sovereign states and dependent territories in Europe, European states: Iceland, Liechtenstein, Norway and Switzerlan ...
(EFTA). It has detailed rules assigning
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
for the dispute to be heard and governs the recognition and enforcement of foreign judgments.
Instruments
Five legal instruments together form the Brussels Regime. All five legal instruments are broadly similar in content and application, with differences in their territory of application. They establish a general rule that individuals are to be sued in their state of domicile and then proceed to provide a list of exceptions. The instruments further provide for the recognition of judgments made in other countries.
Brussels Convention (1968)
Recognition and enforcement of judgments in civil and commercial cases was originally accomplished within the
European Communities
The European Communities (EC) were three international organizations that were governed by the same set of institutions. These were the European Coal and Steel Community (ECSC), the European Atomic Energy Community (EAEC or Euratom), and the ...
by the 1968 Brussels Convention, a treaty signed by the then six members of the Communities.
This treaty was amended on several occasions and was almost completely superseded by a
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
adopted in 2001, the Brussels I Regulation. Today the convention only applies between the 15 pre-2004 members of the European Union and certain territories of EU member states that are outside the Union:
Aruba
Aruba ( , , ), officially the Country of Aruba ( nl, Land Aruba; pap, Pais Aruba) is a constituent country of the Kingdom of the Netherlands physically located in the mid-south of the Caribbean Sea, about north of the Venezuela peninsula of ...
, the
French overseas territories
Overseas France (french: France d'outre-mer) consists of 13 French-administered territories outside Europe, mostly the remains of the French colonial empire that chose to remain a part of the French state under various statuses after decolon ...
and
Mayotte
Mayotte (; french: Mayotte, ; Shimaore: ''Maore'', ; Kibushi: ''Maori'', ), officially the Department of Mayotte (french: Département de Mayotte), is an overseas department and region and single territorial collectivity of France. It is loc ...
. It is intended that the Brussels Convention will be replaced by the new Lugano Convention, the latter being open to ratification by EU member states acting on behalf of non-European territories which belong to that member state.
Lugano Convention (1988)
In 1988, the then 12 member states of the European Communities signed a treaty, the Lugano Convention with the then six members of the
European Free Trade Association
The European Free Trade Association (EFTA) is a regional trade organization and free trade area consisting of four List of sovereign states and dependent territories in Europe, European states: Iceland, Liechtenstein, Norway and Switzerlan ...
: Austria, Finland, Iceland, Norway, Sweden and Switzerland. The Lugano Convention served to extend the recognition regime to EFTA member state who are not eligible to sign the Brussels Convention. Other than the original signatories–three of which left EFTA to join the EU in 1995–only Poland has subsequently acceded to the Lugano Convention.
Liechtenstein
Liechtenstein (), officially the Principality of Liechtenstein (german: link=no, Fürstentum Liechtenstein), is a German-speaking microstate located in the Alps between Austria and Switzerland. Liechtenstein is a semi-constitutional monarchy ...
, the only state to accede to the EFTA after 1988, has not signed either the 1988 Convention or its successor, the 2007 Lugano Convention. The convention is fully superseded by a 2007 version.
Brussels I Regulation (2001)
The Brussels I Regulation of 2001 was the primary piece of legislation in the Brussels framework from 2002 until January 2015. It substantially replaced the 1968 Brussels Convention, and applied to all EU member states excluding Denmark, which has a full
opt-out The term opt-out refers to several methods by which individuals can avoid receiving unsolicited product or service information. This option is usually associated with direct marketing campaigns such as e-mail marketing or direct mail. A list of thos ...
from implementing regulations under the
area of freedom, security and justice
The area of freedom, security and justice (AFSJ) is a collection of justice as well as migration & home affairs policies designed to ensure security, rights and free movement within the European Union (EU). Fields covered include the harmonisati ...
. It came into effect on 1 March 2002. The regulation is fully superseded by a recast Brussels I regulation.
Agreement with Denmark
In 2005, Denmark signed an international agreement with the European Community to apply the provisions of the 2001 Regulation between the EU and Denmark. The 2005 agreement applies a modified form of the 2001 Regulation between Denmark and the rest of the EU. It also provides a procedure by which amendments to the regulation are to be implemented by Denmark. It applies the 2001 regulation to Denmark and other EU members from 1 July 2007. Should Denmark decide not to implement any change to the Regulation or its successor, then the Agreement ends automatically.
Lugano Convention (2007)
In 2007, the European Community and Denmark signed with Iceland, Switzerland and Norway the new Lugano Convention. This treaty was intended to replace both the old Lugano Convention of 1988 and the Brussels Convention and as such was open to signature to both EFTA member states and to EU member state on behalf of their extra-EU territories. While the former purpose was achieved in 2011 with the ratification of all EFTA member states (bar Liechtenstein which never signed the 1988 Convention), no EU member state has yet acceded to the convention on behalf of its extra-EU territories.
The 2007 Convention is substantially the same as the 2001 Brussels I Regulation: the main difference being that the word "Regulation" is replaced with the word "Convention" throughout the text. Furthermore, the convention has a slightly different definition of the concept "court" and the 2007 convention is not adapted to the recast of the Brussels Regulation. It is also open to accession by other EFTA states as well as EU states acting on behalf of territories which are not part of the EU. Other states may join subject to approval of the present parties to the treaty. No accessions have taken place so far, but the Kingdom of the Netherlands planned to present to parliament an approval act for accession on behalf of Aruba, Caribbean Netherlands, Curaçao and possibly Sint Maarten in 2014.
Brussels I Regulation (recast)
An amendment to the Brussels I Regulation, covering
maintenance obligations, was adopted in 2008. Neither Denmark nor the United Kingdom participated in the regulation, though Denmark notified the Commission of its acceptance of the amendment in January 2009.
In 2012, the EU institutions adopted a recast Brussels I Regulation which replaced the 2001 regulation with effect from 10 January 2015. The recast regulation now also applies to jurisdiction regarding non EU residents, it abolishes formalities for recognition of judgments and simplifies the procedure for a court chosen by the parties to commence proceedings (even if proceedings have started in another member state already). In December 2012 Denmark notified the Commission of its decision to implement the contents of 2012 regulation. The Lugano Convention Standing committee considered amending the Lugano Convention in accordance with the recast, but "made no recommendation on the possible amendment of the Lugano Convention and did not decide on any further steps."
In 2014, the EU amended the Brussels I Regulation to clarify provisions regarding two courts which are "common to several member states": the
Unified Patent Court
The Unified Patent Court (UPC) is a common patent court open for participation of member states of the European Union, and created by the "Agreement on a Unified Patent Court" (UPC Agreement or UPCA), which is provisionally applicable since 19 ...
and the
Benelux Court of Justice
The Benelux Court of Justice ( nl, Benelux Gerechtshof, french: Cour de Justice Benelux) is a court which is common to the Benelux countries Belgium, Netherlands and Luxembourg. The organisation was established by the treaty of 31 March 1965. The c ...
jurisdiction. Denmark again notified the EU that it would apply the amendments. The Lugano Convention Standing Committee considered amending the Lugano Convention with respect to the unitary patent and Unified patent court, but decided to "wait for the results of further study".
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Effect in the UK
Until 1 February 2020 all instruments applied in the UK as a result of its EU membership. Until 1 January 2021, under the conditions of the Brexit withdrawal agreement
The Brexit withdrawal agreement, officially titled Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, is a treaty between the European Uni ...
, the instruments remained applicable there, despite Brexit
Brexit (; a portmanteau of "British exit") was the withdrawal of the United Kingdom (UK) from the European Union (EU) at 23:00 GMT on 31 January 2020 (00:00 1 February 2020 CET).The UK also left the European Atomic Energy Community (EAEC or ...
, during a transition period.
The UK has sought participation in the Lugano Convention after Brexit
Brexit (; a portmanteau of "British exit") was the withdrawal of the United Kingdom (UK) from the European Union (EU) at 23:00 GMT on 31 January 2020 (00:00 1 February 2020 CET).The UK also left the European Atomic Energy Community (EAEC or ...
, and has secured support from Iceland, Norway and Switzerland for accession. As of January 2021, the accession had not been approved. In May 2021, the European Commission reported to the European Parliament its view that the European Union should not give consent to the accession of the UK, arguing that "the consistent policy of the European Union (with regard to third-countries) is to promote cooperation within the framework of the multilateral Hague Conventions".
The Brussels convention of 1968 (as amended) applied between the UK and Gibraltar before Brexit and still applies today.
Scope and content
The Brussels Regime covers legal disputes of a civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
or commercial
Commercial may refer to:
* a dose of advertising conveyed through media (such as - for example - radio or television)
** Radio advertisement
** Television advertisement
* (adjective for:) commerce, a system of voluntary exchange of products and s ...
nature. In 1978, the convention was amended to include the sentence: "It shall not extend, in particular, to revenue, customs or administrative matters." The 2012 Regulation further specifies that the regulation shall not extend to "the liability of the State for acts and omissions in the exercise of State authority (''acta iure imperii'')." There are some exceptions limiting the scope of this. Where the principal matter of a dispute is one of family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
, bankruptcy
Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the debtor ...
or insolvency
In accounting, insolvency is the state of being unable to pay the debts, by a person or company ( debtor), at maturity; those in a state of insolvency are said to be ''insolvent''. There are two forms: cash-flow insolvency and balance-sheet i ...
, social security
Welfare, or commonly social welfare, is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refer specificall ...
, or relates to arbitration
Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ' ...
, the case is not subject to the rules.
The regulation aims at jurisdiction, i.e., determining which court or courts will have the ability to take the case. That does not mean that the applicable law will be the law of the court. It is possible and frequent to have a national court applying foreign law. In general, it is the domicile of the defendant that determines which of the courts have jurisdiction in a given case.
The regime prescribes that, subject to specific rules set out in the various instruments, a person (legal
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
or natural
Nature, in the broadest sense, is the physical world or universe. "Nature" can refer to the phenomena of the physical world, and also to life in general. The study of nature is a large, if not the only, part of science. Although humans are p ...
) may only be sued in the member state in which he or she has its habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute or legal entitlement. It can be contrasted with the law on domicile, traditionally used in common law juris ...
or domicile. This is determined by the law of the court hearing the case, so that a person can be domiciled in more than one state simultaneously. However, "domicile" does not have the same meaning as that given to it by common law.[Both Ireland and the United Kingdom–the only common law countries to sign the Brussels Convention–enacted national laws which define the term "domicile" in terms of residence rather than the common law concept of domicile. In Ireland, th]
Fifth Schedule of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988
and in the UK, Part V of th
Civil Jurisdiction and Judgments Act 1982
/ref>
Article 4 also allows a person domiciled in any member state to take advantage of another member state's exorbitant bases of jurisdiction on the same basis as a national of that state. This is useful in cases where a member state, such as France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
, allows its nationals to sue anyone in their courts, so that someone domiciled in a member state like Finland
Finland ( fi, Suomi ; sv, Finland ), officially the Republic of Finland (; ), is a Nordic country in Northern Europe. It shares land borders with Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of B ...
may sue someone domiciled in a non-member state like Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, in the courts of a third party member state, like France, where the defendant may have asset
In financial accountancy, financial accounting, an asset is any resource owned or controlled by a business or an economic entity. It is anything (tangible or intangible) that can be used to produce positive economic value. Assets represent value ...
s.
The Brussels Convention and the Brussels I Regulation are both subject to the jurisdiction of the European Court of Justice
The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
(ECJ, now known as CJEU) on questions of interpretation. The Lugano Convention does not require non-EU states to refer questions of interpretation to the ECJ, but has a protocol regarding "uniform interpretation" of the convention, requiring courts "pay due account to the principles laid down by any relevant decision" and allowing for the exchange of relevant judgments. Nevertheless, various divergences have arisen between member states in the interpretation of the Lugano Convention.
The Brussels Regime generally allows jurisdiction clauses in contracts, which preserves the right of parties to reach agreement at the time of contracting as to which court should govern any dispute. After the 2012 regulation enters into force, such a decision should in principle be respected, even if a court outside the Brussels Regime states is selected and is in compliance with the 2005 Hague Choice of Court convention
The Hague choice of court convention, formally the Convention of 30 June 2005 on Choice of Court Agreements, is an international treaty concluded within the Hague Conference on Private International Law. It was concluded in 2005, and entered into ...
.
Public policy clauses
Article 27(1) of the Brussels Convention and Article 34(1) of the Brussels Regulation contain a public policy clause (or "public policy exception") which states that judgments should not be recognised "if such recognition is contrary to public policy in the State in which recognition is sought".
See also
*
*
*
*
*
Implementation in UK law:
*
*
References
External links
; Instruments
Regulation (EU) 1215/2012
an
Regulation (EC) 44/2001
2005 EU-Denmark agreement
1968 Brussels convention
1988 Lugano Convention
parties
2007 Lugano Convention
parties
{Dead link, date=October 2019 , bot=InternetArchiveBot , fix-attempted=yes )
;Case law
* Landmark cases
*
''Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others''
Case 189/87
*
''Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG''
Case C-4/03
*
''Roche Nederland BV and Others v Frederick Primus and Milton Goldenberg''
Case C-539/03
Conflict of laws
European Union law
Treaties of the European Union
European Union regulations
Treaties concluded in 1969
Treaties entered into force in 1973
Treaties concluded in 1988
Treaties entered into force in 1992
Treaties concluded in 2007
Treaties entered into force in 2010
Patent law of the European Union
Judicial cooperation in civil matters in the European Union