Procedure completed
Role | Committee | Rapporteur | Shadows |
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Lead | JURI | ZWIEFKA Tadeusz (PPE) | |
Opinion | LIBE |
Legal Basis RoP 132-p2
Activites
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2010/09/07
Results of vote in Parliament
- Results of vote in Parliament
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T7-0304/2010
summary
The European Parliament adopted a resolution on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.Comprehensive concept for private international law: Parliament encourages the Commission to review the interrelationship between the different regulations addressing jurisdiction, enforcement and applicable law. It considers that for this purpose, the terminology in all subject-matters and all the concepts and requirements for similar rules in all subject-matters should be unified and harmonised (e.g. lis pendens, jurisdiction clauses, etc.) and the final aim might be a comprehensive codification of private international law.Abolition of exequatur: Members call for the requirement for exequatur to be abolished, but consider that this must be balanced by appropriate safeguards designed to protect the rights of the party against whom enforcement is sought. They consider that provision must be made for an exceptional procedure available in the Member State in which enforcement is sought. They take the view that the grounds for an application under this exceptional procedure should be respected. These are set out in the resolution. The resolution also states that there must be a harmonised procedural time-frame for the exceptional procedure so as to ensure that it is conducted as expeditiously as possible, and that it must be ensured that the steps which may be taken by way of enforcement until the time-limit for applying for the exceptional procedure has expired or the exceptional procedure has been concluded are not irreversible. Members are particularly concerned that a foreign judgment should not be enforced if it has not been properly served on the judgment debtor. They argue that not only must there be a requirement for a certificate of authenticity as a procedural aid so as to guarantee recognition, but also that there should be a standard form for that certificate. Authentic instruments: Members consider that authentic instruments should not be directly enforceable without any possibility of challenging them before the judicial authorities in the State in which enforcement is sought. They take the view therefore that the exceptional procedure to be introduced should not be limited to cases where enforcement of the instrument is manifestly contrary to public policy in the State addressed since it is possible to conceive of circumstances in which an authentic act could be irreconcilable with an earlier judgment and the validity (as opposed to the authenticity) of an authentic act can be challenged in the courts of the State of origin on grounds of mistake, misrepresentation, etc. even during the course of enforcement. Scope of the Regulation: the resolution considers that maintenance obligations within the scope of Regulation No 4/2009/EC should be excluded from the scope of the Regulation, but reiterates that the final aim should be a comprehensive body of law encompassing all subject-matters. Parliament strongly opposes the (even partial) abolition of the exclusion of arbitration from the scope. It further considers that a paragraph should be added providing that a judgment shall not be recognised if, in giving its decision, the court in the Member State of origin has, in deciding a question relating to the validity or extent of an arbitration clause, disregarded a rule of the law of arbitration in the Member State in which enforcement is sought, unless the judgment of that Member State produces the same result as if the law of arbitration of the Member State in which enforcement is sought had been applied.Choice of court: Members advocate, as a solution to the problem of ‘torpedo actions’, releasing the court designated in a choice-of-court agreement from its obligation to stay proceedings under the lis pendens rule. They consider that this should be coupled with a requirement for any disputes on jurisdiction to be decided expeditiously as a preliminary issue by the chosen court and backed up by a recital stressing that party autonomy is paramount. A new provision dealing with the opposability of choice-of-court agreements against third parties should be added to the Regulation. Members lay down provisions on this issue which may be contained in this new measure.Forum non conveniens: Parliament proposes a solution so as to allow the courts of a Member State having jurisdiction as to the substance to stay proceedings if they consider that a court of another Member State or of a third country would be better placed to hear the case, or a specific part thereof, thus enabling the parties to bring an application before that court or to enable the court seised to transfer the case to that court with the agreement of the parties.Operation of the Regulation in the international legal order: the resolution considers, on the one hand, that the question whether the rules of the Regulation should be given reflexive effect has not been sufficiently considered and that it would be premature to take this step without much study, wide-ranging consultations and political debate, in which Parliament should play a leading role, and encourages the Commission to initiate this process. Parliament considers, on the other hand, that, in view of the existence of large numbers of bilateral agreements between Member States and third countries, questions of reciprocity and international comity, the problem is a global one and a solution should also be sought in parallel in the Hague Conference through the resumption of negotiations on an international judgments convention. It urges the Commission to explore the extent to which the 2007 Lugano Convention could serve as a model and inspiration for such an international judgments convention. Parliament considers in the meantime that the Community rules on exclusive jurisdiction with regard to rights in rem in immovable property or tenancies of immovable property could be extended to proceedings brought in a third State.Definition of domicile of natural and legal persons: Parliament takes the view that an autonomous European definition (ultimately applicable to all European legal instruments) of the domicile of natural persons would be desirable, in order in particular to avoid situations in which persons may have more than one domicile. It rejects a uniform definition of the domicile of companies within the Brussels I Regulation, since a definition with such far-reaching consequences should be discussed and decided within the scope of a developing European company law. Members recall to the issue the interest rates and industrial property in the context of the Regulation.The resolution also lays down the following:jurisdiction over individual contracts of employment: Parliament calls on the Commission to consider, having regard to the case-law of the Court of Justice, whether a solution affording greater legal certainty and suitable protection for the more vulnerable party might not be found for employees who do not carry out their work in a single Member State (e.g. long distance lorry drivers, flight attendants);rights of the personality: Parliament considers that, in order to mitigate the alleged tendency of courts in certain jurisdictions to accept territorial jurisdiction where there is only a weak connection with the country in which the action is brought, a recital should be added to clarify that, in principle, the courts of that country should accept jurisdiction only where there is a sufficient, substantial or significant link with that country;provisional measures: in order to ensure better access to justice, orders aimed at obtaining information and evidence or at preserving evidence should be covered by the notion of provisional and protective measures. Members believe that the Regulation should establish jurisdiction for such measures at the courts of the Member State where the information or evidence sought is located, in addition to the jurisdiction of the courts having jurisdiction with respect to the substance. They reject the Commission’s idea that the court seised of the main proceedings should be able to discharge, modify or adapt provisional measures granted by a court from another Member State since this would not be in the spirit of the principle of mutual trust established by the Regulation. Other questions: Members consider, on account of the special difficulties of private international law, the importance of Union conflicts-of-law legislation for business, citizens and international litigators and the need for a consistent body of case-law, that it is time to set up a special chamber within the Court of Justice to deal with references for preliminary rulings relating to private international law.It should be noted that a draft alterative resolution proposed by the S&D group was rejected in plenary.
- 2010/09/06 Debate in Parliament
- 2010/06/29 Committee report tabled for plenary, single reading
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2010/06/23
Vote in committee, 1st reading/single reading
- #2969
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2009/10/23
Council Meeting
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2969
summary
The Council took note of a report on the application of Regulation 44/2001/EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels I" Regulation).Mutual recognition of judgments is considered the cornerstone of judicial cooperation between EU Member States.
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2969
summary
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2009/10/19
Committee referral announced in Parliament, 1st reading/single reading
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2009/04/22
Non-legislative basic document published
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COM(2009)0174
summary
PURPOSE: to present a Commission report on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”).CONTENT: Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It lays down uniform rules to settle conflicts of jurisdiction and facilitate the free circulation of judgments, court settlements and authentic instruments in the European Union. It replaced the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by several conventions on the accession of new Member States to that Convention.This report has been prepared in accordance with Article 73 of the Regulation, on the basis of a general study commissioned by the Commission on the practical application of the Regulation. It aims at presenting to the European Parliament, the Council and the European Economic and Social Committee an assessment on the application of the Regulation. It is accompanied by a Green Paper which makes some suggestions on possible ways forward with respect to the points raised in this report. Both documents serve as the basis for a public consultation on the operation of the Regulation.As regards the application of the Regulation in general, the report notes that in most Member States, there is no systematic collection of statistical data on the application of the Regulation. A distinction must be made between the jurisdiction rules on the one hand and the rules on recognition and enforcement of judgments on the other hand. In general, the Regulation is mostly applied in economic centres and border regions. The jurisdiction rules generally apply in a relatively small number of cases, ranging from less than 1% of all civil cases to 16% in border regions.The rules on recognition and enforcement are more frequently applied but it has not been possible to obtain comprehensive data on the number of declarations of enforceability delivered by the courts. The numbers range from very low (e.g. 10 declarations in 2004 in Portugal) to higher (e.g. 420 declarations in 2004 in Luxembourg) with again a peak in border regions (e.g. 301 declarations in the courts of the Landgericht Traunstein in Germany, located near the Austrian border).In general, the Regulation is considered to be a highly successful instrument, which has facilitated cross-border litigation through an efficient system of judicial cooperation based on comprehensive jurisdiction rules, coordination of parallel proceedings, and circulation of judgments. The system of judicial cooperation laid down in the Regulation has successfully adapted to the changing institutional environment (from intergovernmental cooperation to an instrument of European integration) and to new challenges of modern commercial life. As such, it is highly appreciated among practitioners.This general satisfaction with the operation of the Regulation does not exclude that the functioning of the Regulation may be improved in the following areas:the abolition of exequatur;the operation of the Regulation in the international legal order;choice of court (the law applicable to choice of court agreements, choice of court and lis pendens; the Hague Convention on choice of court agreements);the operation of the rules concerning industrial property;the application of the lis pendens and related actions rules of the Regulation;provisional measures remain an area where the diversity in the national procedural laws of the Member States makes the free circulation of such measures difficult;the interface between the Regulation and arbitration (arbitration falls outside the scope of the Regulation).In addition to the main points addressed above, the following issues have been raised: scope; jurisdiction ; recognition and enforcement.
- DG {'url': 'http://ec.europa.eu/justice/', 'title': 'Justice'}, MALMSTRÖM Cecilia
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COM(2009)0174
summary
Documents
- Non-legislative basic document published: COM(2009)0174
- Debate in Council: 2969
- Committee report tabled for plenary, single reading: A7-0219/2010
- Debate in Parliament: Debate in Parliament
- Results of vote in Parliament: Results of vote in Parliament
- Decision by Parliament, 1st reading/single reading: T7-0304/2010
Amendments | Dossier |
56 |
2009/2140(INI)
2010/05/12
JURI
56 amendments...
Amendment 1 #
Motion for a resolution Recital C C. whereas abolition of exequatur – the Commission’s main objective – would expedite the free movement of judicial decisions and form a key milestone in the building of a European judicial area,
Amendment 10 #
Motion for a resolution Recital L b (new) Lb. whereas it is unclear to what extent protective orders aimed at obtaining information and evidence are excluded from the scope of Article 31 of the Regulation,
Amendment 11 #
Motion for a resolution Paragraph -1 a (new) Amendment 12 #
Motion for a resolution Paragraph 1 1. Calls for the requirement for exequatur to be abolished, but considers that this must be balanced by stringent safeguards designed to protect the rights of the
Amendment 13 #
Motion for a resolution Paragraphe 1 1. Calls for the requirement for exequatur to be abolished, but considers that
Amendment 14 #
Motion for a resolution Paragraph 1 1. Calls for the requirement for exequatur to be abolished, but considers that this must be balanced by
Amendment 15 #
Motion for a resolution Paragraphe 1 a (new) 1a. Asks the Commission to draft a catalogue of minimum standards to safeguard procedural guarantees and jurisdiction over consumer contracts, over individual contracts of employment and in matters relating to insurance;
Amendment 16 #
Motion for a resolution Paragraphe 2 2. Considers that the grounds on which exception may be taken to enforcement must be no fewer than those set out in Article
Amendment 17 #
Motion for a resolution Paragraph 2 2. Considers that the grounds on which exception may be taken to enforcement must be no
Amendment 18 #
Motion for a resolution Paragraphe 3 3. Considers that there must be a harmonised procedural time-frame for such review so as to ensure that it is conducted as expeditiously as possible
Amendment 19 #
Motion for a resolution Paragraph 4 4. Argues
Amendment 2 #
Motion for a resolution Recital F F. whereas abolition of exequatur
Amendment 20 #
Motion for a resolution Paragraphe 4 4. Argues not only that the requirement for a certificate of authenticity must be maintained, but also that there should be a standard form for that certificate; the certificate should be in its appearance easily discernable by any judge in the territory of the European Union without the need for translation;
Amendment 21 #
Motion for a resolution Paragraph 5 5. Believes that, in order to save costs, the translation of the decision to be enforced could be limited to the final order (operative part and summary grounds), but that a full translation should be required in the event that an application is made for review or if the court considers it appropriate in order to enforce the decision with full respect to its content;
Amendment 22 #
Motion for a resolution Paragraph 6 6. Considers that authentic instruments should
Amendment 23 #
Motion for a resolution Paragraphe 6 6. Considers that authentic instruments should
Amendment 24 #
Motion for a resolution Paragraph 6 6. Considers that authentic instruments, and those instruments having equivalent legal effects under their respective national law, should not be directly enforceable without the possibility of review by the judicial authorities in the State in which enforcement is sought; takes the view that the special review procedure to be introduced should not be limited to cases where enforcement of the instrument is manifestly contrary to public policy in the
Amendment 25 #
Motion for a resolution Paragraphe 7 7. Considers that maintenance obligations within the scope of Regulation No 4/2009/EC should be excluded from the scope of the Regulation
Amendment 26 #
Motion for a resolution Paragraph 8 8. Strongly opposes
Amendment 27 #
Motion for a resolution Paragraphe 8 8. Strongly opposes the (even partial) abolition of the exclusion of arbitration from the scope without further review;
Amendment 28 #
Motion for a resolution Paragraph 9 9.
Amendment 29 #
Motion for a resolution Paragraph 10 10. Considers that
Amendment 3 #
Motion for a resolution Recital I a (new) Ia. whereas the rules of the New York Convention are minimum rules and the law of the Contracting States may be more favourable to arbitral competence and arbitration awards,
Amendment 30 #
Motion for a resolution Paragraphe 10 Amendment 31 #
Motion for a resolution Paragraph 11 a (new) 11a. Considers that the Regulation should contain a new provision dealing with the opposability of choice-of-court agreements against third parties; takes the view that such provision could provide that a person who is not a party to the contract will be bound by an exclusive choice-of-court agreement concluded in accordance with the Regulation only if: (a) that agreement is contained in a written document or electronic record; (b) that person is given timely and adequate notice of the court where the action shall be brought; (c) in contracts for carriage of goods, the chosen court is (i) the domicile of the carrier; (ii) the place of receipt agreed in the contract of carriage; (iii) the place of delivery agreed in the contract of carriage, or (iv) the port where the goods are initially loaded on a ship or the port where the goods are finally discharged from a ship. It should further be provided that, in all other cases, the third party may bring an action before the court otherwise competent under the Regulation if it appears that holding that party to the chosen forum would be blatantly unfair;
Amendment 32 #
Motion for a resolution Paragraphe 12 12. S
Amendment 33 #
Motion for a resolution Paragraphe 13 13. Considers that the question whether the rules of the Regulation should be given reflexive effect has not been sufficiently considered and that it would be premature to take this step without much study, wide- ranging consultations and political debate, in which Parliament should play a leading role; further considers that, in view of the existence of large numbers of bilateral agreements between Member States and third countries, questions of reciprocity and international comity, the problem is a global one and a solution should be sought in the Hague Conference through the resumption of negotiations on an international judgments convention; mandates the Commission to use its best endeavours to revive this project, the Holy Grail of private international law; the Commission shall also explore the possibility to promote the Lugano Convention 2007 as a realistic alternative to the Hague Framework;
Amendment 34 #
Motion for a resolution Paragraph 13 13. Considers that the question whether the rules of the Regulation should be given reflexive effect has
Amendment 35 #
Motion for a resolution Paragraphe 14 14. Considers in the meantime that the Community rules on exclusive jurisdiction with regard to rights in rem in immovable property or tenancies of immovable property could be extended to proceedings brought in a third State; jurisdiction rules for consumers and employees shall also be applicable with regard to third-state companies;
Amendment 36 #
Motion for a resolution Paragraphe 15 15. Advocates amending the Regulation to allow reflexive effect to be given to
Amendment 37 #
Motion for a resolution Paragraph 17 17. Takes the view that an autonomous European definition of the domicile (ultimately applicable to all European legal instruments) of natural persons would be desirable, in order in particular to avoid situations in which persons may have more than one domicile and would favour a single definition of the domicile of companies, while appreciating the considerable difficulties involved;
Amendment 38 #
Motion for a resolution Paragraphe 17 17. Takes the view that an autonomous definition of the domicile of natural persons would be desirable, in order in particular to avoid situations in which persons may have more than one domicile
Amendment 39 #
Motion for a resolution Paragraphe 17 a (new) 17a. Rejects a uniform definition of the domicile of companies within the Brussels I Regulation, since a definition with such far-reaching consequences should be discussed and decided within the scope of a developing European company law; considers that a definition of the domicile of companies could impede the improper foundation of letterbox companies and could avoid protective measures under labour and company law;
Amendment 4 #
Motion for a resolution Recital I b (new) Ib. whereas, moreover, a rule providing that the courts of the Member State of the seat of the arbitration should have exclusive jurisdiction could give rise to considerable perturbations,
Amendment 40 #
Motion for a resolution Paragraphe 19 19. Considers that, in order to overcome the problem of ‘torpedo actions’, the court second seised should be relieved from the obligation to stay proceedings under the lis pendens rule where the court first seised evidently has no jurisdiction; the court second seised shall however not be allowed to take a decision on the subject- matter before the court first seised has finally rejected its jurisdiction; rejects the idea, however, that claims for negative declaratory relief should be excluded altogether from the first-in-time rule on the ground that such claims can have a
Amendment 41 #
Motion for a resolution Paragraph 19 19. Considers that, in order to overcome the problem of ‘torpedo actions’, the court second seised should be relieved from the obligation to stay proceedings under the lis pendens rule where the court first seised evidently has no jurisdiction; rejects the idea, however, that claims for negative declaratory relief should be excluded altogether from the first-in-time rule on the ground that such claims can have a legitimate commercial purpose; considers, however, that issues concerning jurisdiction would be best resolved in the context of proposals to create a Unified Patent Litigation System;
Amendment 42 #
Motion for a resolution Paragraphe 19 a (new) Amendment 43 #
Motion for a resolution Paragraphe 19 b (new) 19b. Considers that the aim must be coherence between Private International Law, in particular Rome I Regulation No 593/2008/EC and European Civil Procedure Law in particular Brussels I Regulation No 44/2001/EC and therefore asks the Commission to set aside present inconsistencies, e.g. by including a definition of "the professional" as the other party to the consumer contract in Article 15 paragraph 1 of the Brussels I Regulation to comply with the elements of the definition according to Article 6 paragraph 1 Rome I Regulation and by replacing the unclear expression "contract which, for an inclusive price, provides for a combination of travel and accommodation" by an explicit and clear reference in Article 15 paragraph 3 of the Brussels I Regulation to the Package Travel Directive 90/314/EC and its meaning as this is the case in Article 6 paragraph 4 litera b of the Rome I Regulation;
Amendment 44 #
Motion for a resolution Paragraphe 19 c (new) Jurisdiction with regard to labour disputes 19c. Asks the Commission to create a jurisdiction for industrial actions in order to avoid forum shopping and to ensure coherence with Regulation (EC) No 864/2007 (Rome II); the competent court should be the court of the Member State where the action has been taking place;
Amendment 45 #
Motion for a resolution Paragraphe 19 d (new) Jurisdiction over individual contracts of employment 19d. Calls on the Commission to find a solution for employees who do not carry out their work in a single Member State (e.g. long-distance lorry drivers, flight attendants) under the jurisdiction over individual contracts of employment; these employees should have the opportunity to benefit from the special jurisdiction;
Amendment 46 #
Motion for a resolution Paragraph 20 20.
Amendment 47 #
Motion for a resolution Paragraph 20 20.
Amendment 48 #
Motion for a resolution Paragraphe 20 20.
Amendment 49 #
Motion for a resolution Paragraph 20 a (new) Amendment 5 #
Motion for a resolution Recital I c (new) Ic. whereas it appears from the intense debate raised by the proposal to create an exclusive head of jurisdiction for court proceedings supporting arbitration in the civil courts of the Member States that the Member States have not reached a common position thereon and that it would be counterproductive, having regard to world competition in this area, to try to force their hand,
Amendment 50 #
Motion for a resolution Paragraph 20 b (new) 20b. Believes that the Regulation should establish jurisdiction for such measures at the courts of the Member State where the information or evidence sought is located, in addition to the jurisdiction of the courts having jurisdiction with respect to the substance;
Amendment 51 #
Motion for a resolution Paragraph 20 c (new) 20c. Finds that "provisional, including protective measures" should be defined in a recital in the terms used in the St Paul Dairy case;
Amendment 52 #
Motion for a resolution Paragraph 20 d (new) 20d. Considers that the distinction drawn in Van Uden between cases in which the court granting the measure has jurisdiction over the substance of the case and cases in which it does not, should be replaced by a test based on the question of whether measures are sought in support of proceedings issued or to be issued in that Member State or a non-Member State (in which case the restrictions set out in Article 31 should not apply) or in support of proceedings in another Member State (in which case the Article 31 restrictions should apply);
Amendment 53 #
Motion for a resolution Paragraph 20 e (new) 20e. Urges, that a recital be introduced, in order to overcome the difficulties posed by the requirement recognised in Van Uden for a “real connecting link” to the territorial jurisdiction of the Member State court granting such a measure, to make it clear that in deciding whether to grant, renew, modify or discharge a provisional measure granted in support of proceedings in another Member State, Member State courts should take into account all of the circumstances, including (i) any statement by the Member State court seised of the main dispute with respect to the measure in question or measures of the same kind, (ii) whether there is a real connecting link between the measure sought and the territory of the Member State in which it is sought, and (iii) the likely impact of the measure on proceedings pending or to be issued in another Member State;
Amendment 54 #
Motion for a resolution Paragraph 20 f (new) 20f. Rejects the Commission's idea that the court seised of the main proceedings should be able to discharge, modify or adapt provisional measures granted by a court from another Member State since this would not be in the spirit of the principle of mutual trust established by the Regulation; considers, moreover, that it is unclear on what basis a court could review a decision made by a court in a different jurisdiction and which law would apply in these circumstances, and that this could give rise to real practical problems, for example with regard to costs;
Amendment 55 #
Motion for a resolution Paragraph 21 Amendment 56 #
Motion for a resolution Paragraph 21 a (new) 21a. Stresses the need for consistency between any proposals for special jurisdiction rules for collective actions and the Commissions' forthcoming work on collective redress instruments;
Amendment 6 #
Motion for a resolution Recital I d (new) Id. whereas the various national procedural devices developed to protect arbitral jurisdiction (anti-suit injunctions so long as they are in conformity with free movement of persons and fundamental rights, declaration of validity of an arbitration clause, grant of damages for breach of an arbitration clause, the negative effect of the 'Kompetenz- Kompetenz principle', etc. must continue to be available and the effect of such procedures and the ensuing court decisions in the other Member States must be left to the law of those Member States as was the position prior to the judgment in West Tankers,
Amendment 7 #
Motion for a resolution Recital J a (new) Ja. whereas third parties may be bound by a choice-of-court agreement (for instance in a bill of lading) to which they have not specifically assented and that this may adversely affect their access to justice and be manifestly unfair and whereas, therefore, the effect of choice-of-court agreements in respect of third parties needs to be dealt with in a specific provision of the Regulation,
Amendment 8 #
Motion for a resolution Recital L L. whereas, as regards rights of the personality, the media complain that the
Amendment 9 #
Motion for a resolution Recital L a (new) La. whereas, as regards provisional measures, the Denilauer case-law should be clarified by making it clear that ex parte measures can be recognised and enforced on the basis of the Regulation provided that the defendant has had the opportunity to contest them,
source: PE-441.266
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