Brussels Convention Regulation

Brussels Convention and Regulation 1637Common Market Law Review 42: 1637–1661, 2005.© 2005 Kluwer Law International. Printed in the Netherlands.

FROM THE BRUSSELS CONVENTION TO REGULATION 44/2001:

CORNERSTONES OF A EUROPEAN LAW OF CIVIL PROCEDURE

ASTRID STADLER*

1. Basic parameters of European civil procedure

On 1 March 2002, Council Regulation No. 44/2001/EC on jurisdiction andthe recognition and enforcement of judgments in civil and commercial mat-ters entered into force. With the exception of Denmark, the Regulation re-places the Brussels Convention of 27 September 1968, on jurisdiction andthe enforcement of judgments in civil and commercial matters, among theMember States.1 Three years after the adoption of the Regulation, it is an ap-propriate moment to review the impact of the Brussels Convention and thatof the new instrument. The Brussels Convention is indisputably the basisupon which the European law of civil procedure has been built and its gen-eral principles are still at the heart of the great success of the Convention andsubsequent developments.

In 1973, when the Convention became effective, nobody would have en-visaged that some thirty years later civil procedure would essentially be thespearhead of legal harmonization within the European Community. There isat present a genuine lack of attempts to harmonize the civil procedural lawsin the Member States, whilst an increasing quantity of rules on Europeancross-border litigation are simultaneously issued. Since 2000, numerous ECregulations and directives relating to judicial cooperation in civil mattershave entered into force;2 European law of civil procedure has consequently

* University of Konstanz, Germany.1. The Convention was concluded in implementation of Art. 220 EC. For some it was pri-

mary Community law superseding national procedural law, others regarded it as a conventionunder international law; for details cf. Geimer and Schütze, Internationale Urteilsanerken-nung, Vol. I (1983), p. 50.

2. Cf. Council Regulation (EC) No. 1348/2000 of 29 May 2000 on the service in the Mem-ber States of judicial and extrajudicial documents in civil or commercial matters, O.J. 2000, L160/37; Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between thecourts of the Member States in the taking of evidence in civil or commercial matters, O.J. 2001,L 174/1, Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings,O.J. 2000, L 160/1; Council Regulation (EC) No. 44/2001 of 22 Dec. 2000 on jurisdiction and

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1638 Stadler CML Rev. 2005

become an autonomous field of law. This is exemplified at national level bythe recent addition of a new Chapter 11 to the German Code of Civil Proce-dure, entitled “Judicial Cooperation in the European Community”.3 Mutualjudicial assistance among the Member States, for example, is no longer gov-erned by international treaties, as was the rule for many decades previously.Furthermore, EC Regulations on the service of judicial and extra judicialdocuments4 and on cooperation between the Member States in the taking ofevidence,5 have instigated a significant waiver of national sovereignty. Inmany cases this facilitates faster and more efficient cross-border litigation.Principles of international jurisdiction, recognition and enforcement of judg-ments have, similarly, developed continuously since the entry into force ofthe Brussels Convention. The new Regulation 44/2001 has practically en-sured the free movement of judgments within the Member States today.

The adoption of a new regulation, creating a European enforcement orderfor uncontested claims, coming into force in October 2005,6 will be anotherimport step towards the uniform and EC-wide enforcement of judgmentsrendered in any of the Member States. The new order will permit the directenforcement in all Member States of all judgements, where a creditor hasobtained a ruling on an uncontested claim, including those rulings given bydefault; in such cases, the imposition of intermediate measures is thus ren-dered superfluous. The final objective of the EC Commission is – in accor-dance with the 1999 resolutions of Tampere – to abolish any intermediateproceedings before the execution of a judgment given in one Member Statecan take place in another Member State. This would result in the total aban-donment of controls over foreign judgments which originate from anotherMember State. In particular the State in which recognition and execution is

the recognition and enforcement of judgments in civil and commercial matters, O.J. 2001, L12/1; Council Regulation (EC) No. 1347/2000 of 29 May 2000 on jurisdiction and the recogni-tion and enforcement of judgments in matrimonial matters and in matters of parental responsi-bility for children of both spouses, O.J. 2000, L 160/19; Council Regulation (EC) No. 2201/2003 of 27 Nov. 2003 concerning jurisdiction and the recognition and enforcement of judg-ments in matrimonial matters and the matters of parental responsibility, repealing Regulation(EC) No. 1347/2000, O.J. 2003, L 338/1; Regulation (EC) No. 805/2004 of the EuropeanParliament and of the Council of 21 April 2004 creating a European Enforcement Order foruncontested claims, O.J. 2004, L 143/15; Directive 2001/24/EC of the European Parliamentand of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions,O.J. 2001, L 125/15; Directive 2001/17/EC of the European Parliament and of the Council of19 March 2001 on the reorganisation and winding-up of insurance undertakings, O.J. 2001, L110/28.

3. §§ 1067–1086 ZPO.4. Council Regulation (EC) No. 1348/2000, cited supra note 2.5. Council Regulation (EC) No. 1206/2001, cited supra note 2.6. Regulation (EC) No. 805/2004, cited supra note 2.

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Brussels Convention and Regulation 1639

sought, would no longer be in a position to scrutinize service of process ofthe documents commencing litigation (Art. 34(2) Regulation 44/20017) orverify whether recognition of the judgment is “manifestly contrary to publicpolicy” (Art. 34(1) Regulation 44/2001). Some critics argue that the suppres-sion of the mutual control of judgments is premature, bearing in mind boththe current and intended geographic expansion of the European Community.8

The new enforcement order instrument requires, on the one hand, a veryhigh degree of mutual trust in the civil courts of all Member States; on theother hand, the application of the Regulation on the enforcement order isprone to error due to a multi-level review of service of process of the docu-ments commencing litigation, and several rather general and ambiguousterms contained within the Regulation.

This article will not consider these future developments any further, butinstead will provide an outline of the developments under the Brussels Con-vention and Regulation 44/2001. This analysis will be tripartite. Firstly, thechanges subsequent to the Brussels Regulation will be outlined; secondly,some questions concerning jurisdiction will be addressed; and finally, ques-tions regarding recognition and enforcement will be discussed.

2. Reform of the Brussels Convention – What’s different under theRegulation?

To a large extent the Regulation adopts the text of the Brussels Convention.In the second Chapter, on “Jurisdiction”, there are only minor changes. Apartfrom Article 5(1) – which will be addressed in detail below (section 3.2) –the most significant alteration affects Article 15. Articles 15–17 of the Regu-lation deal with the jurisdiction over consumer contracts; Article 15 defines“consumer contracts” and Article 16(2) lays down that jurisdiction for pro-ceedings against a consumer is with the courts of the Member State in which

7. This is already true with the entry into force of the Regulation on the European enforce-ment order for uncontested claims, which is also applicable to judgments by default.

8. Kohler, in Reichelt and Rechberger (Eds.), Europäisches Kollisionsrecht (Vienna,2004), p. 63 et seq.; Kohler, in Baur and Mansel (Eds.), Systemwechsel im europäischenKollisionsrecht (Munich, 2002), p. 146 et seq.; Stadler, “Das Europäische Zivilprozessrecht –Wie viel Beschleunigung verträgt Europa? Kritisches zur Verordnung über den EuropäischenVollstreckungstitel und ihrer Grundidee”, (2004) IPRax, 2 et seq.; Wagner, “Vom BrüsselerÜbereinkommen über die Brüssel I-Verordnung zum Europäischen Vollstreckungstitel”,(2002) IPRax, 75, 89 et seq.; Stadler, “Kritische Anmerkungen zum Europäischen Voll-streckungstitel”, (2004) RIW, 801 et seq.; cf. as well, with a special focus on constitutionalissues Becker, Grundrechtsschutz bei der Anerkennung und Vollstreckbarerklärung im euro-päischen Zivilverfahrensrecht, Diss. 2004, p. 237 et seq.

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the consumer is domiciled. In doing so, Article 16(2) confers exclusive juris-diction on the Member State court where the consumer is domiciled if an ac-tion is brought against a consumer. As Article 15 of the Regulation extendsthe scope of “consumer contracts”, Article 16(2) gains in importance too.Previously, Article 13 of the Brussels Convention offered special jurisdictionfor contracts concerning the supply of goods or services only when (i) in theState of the consumer’s domicile the conclusion of the contract was precededby a specific invitation to him or by advertising and (ii) he took in this Statethe steps necessary for the conclusion of the contract.9 Thus, a consumercould rely on the protection offered by Article 13 of the Convention only ifhe was active in concluding a contract within his home country by makingan offer or an acceptance of the contract. Whenever all steps necessary forthe conclusion of the contract were taken outside his home country, the Con-ventions’ rules on special jurisdiction over consumer contracts did not apply.This corresponded to the idea that consumer protection should be awardedonly if the consumer, when taking legal steps, maintains a sufficient link tohis domicile. Article 15(1)(c) of the Regulation now submits vendors andother contract partners of a consumer, substantially, to the jurisdiction of theMember State where the consumer is domiciled; this new rule encompassesall contracts which have been concluded “with a person who pursues com-mercial or professional activities in the Member State of the consumer’s do-micile or, by any means, directs such activities to that Member State ...”. It isno longer a prerequisite that in addition to the activities of the contractualpartner extending to the State where the consumer is domiciled the consumerhimself takes any steps to offer or accept a contract within this state. This hasparticularly important consequences for all contracts entered into viaInternet. Each contractor offering goods or services via Internet “directs[commercial or professional] activities” worldwide, in the terms of Article15(1)(c). For instance, even a consumer domiciled in Germany, who nevertook note of a particular Internet offer while he was in Germany is now pro-tected by Article 15(1)(c) if he orders goods via a so-called “active” websiteduring his annual vacation in France. If a lawsuit arises out of this contractthe consumer must be sued in a court in Germany no matter where the othercontracting party is domiciled. The fact that the vendor did pursue commer-cial Internet activities which were in principle available in Germany, just asanywhere else in the world, meets the requirements of Article 15(1)(c).

9. Art. 13(3)(a) and (b) Brussels Convention. Contracts for the sale of goods on instalmentcredit terms and contracts for a loan repayable by instalments were covered by Art. 13(1) and(2) of the Brussels Convention.

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This new approach has been criticized as overprotecting consumers anddiscriminating against small and medium-sized “dot.coms”, which must, un-der the new regulation, be prepared to bring actions against their customersthroughout the EC.10 Nevertheless, this argument is misconceived, because itdoes not take into consideration that a party tendering goods or services viaInternet takes the benefits of a world-wide market opened up by the Internetand, therefore, must at the same time put up with the disadvantages of a glo-bal business. Nevertheless, it is undisputed that the accessibility of a merely“passive” website, which does not offer the possibility to the consumer to or-der goods directly, does not fall under Article 15(1)(c) of the Regulation.11

Most other provisions of the Brussels Convention have been retainedwithout change, even where there was previous ambiguity surrounding theirwording and interpretation.12 This applies, for example, to Article 24 of theBrussels Convention, governing the scope of the Convention with regard toprovisional measures. The courts of the Contracting States had jurisdiction toissue provisional, including protective, measures available under their proce-dural law, even if under the Convention the courts of another State had juris-diction as to the substance of the matter. As some of the Contracting Statesallow provisional measures on a very liberal basis and with far-reaching con-sequences, Article 24 of the Convention could be misused to issue injunc-tions and provisional court orders in proceedings parallel to a litigation as tothe substance of the matter in another State.13

10. Kohler, “Revision des EuGVÜ”, Veröffentlichungen der Wissenschaftlichen Vereini-gung für Internationales Verfahrensrecht e.V., vol. 11 (2000), p. 33.

11. This has been settled by a joint declaration of the Commission and the Council, seeMaterialien, “Rat der EU: Erklärungen zur Brüssel I-Verordnung”, (2001) IPRax, 259; for fur-ther details cf. Moritz, “Quo vadis elektronischer Geschäftsverkehr?”, (2000) Computer undRecht, 61–72.

12. Another step of the reform, worth being mentioned, refers to the rules avoiding parallelproceedings (Arts. 21–23 of the Brussels Convention, now Arts. 27–30 of the Regulation 44/2001/EC). The case law of the ECJ gives a very broad interpretation to the term “proceedingsinvolving the same cause of action” (cf. Case 144/86, Gubisch, [1987] ECR 4861, 4872; CaseC-406/92, The Tatry, [1994] ECR I-5439; Geimer, “European Law of Civil Procedure underBrussels Convention”, Festschr. Stiefel (1987), p. 219 et seq., at 233). Therefore, even a de-claratory action before the court of one Member State may stop an action involving the samesubject matter of litigation brought some time later before the courts of another Member Stateapplying not only for a declaratory judgment but for an order for payment for example. In thepast this sometimes led to a kind of battle of forum between the parties. Art. 30 of the Regula-tion now at least offers a viable answer to the question when a court shall be deemed to beseized of an action. Nonetheless, there still is no satisfactory solution to the problem of lispendens and parallel proceedings in the EC, cf. for a discussion of this in relation to Case C-116/02, Gasser, Fentiman in 42 CML Rev. (2005), 241–259.

13. Cf. the English “World-wide Mareva injunctions” (now “freezing orders” under theCivil Procedure Rules 1999) and “Anton Piller”-Orders (now “search orders”). Cf. Case C-

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Shortly before the Regulation came into force, the European Court of Jus-tice in Van Uden14 and Mietz15 issued two decisions giving a rather narrowinterpretation to the term “provisional measure”. In addition it made thegranting of interim measures subject to conditions if the court hearing theapplication for interim relief has jurisdiction under national law, but doesnot have jurisdiction as to the substance of the matter according to the Con-vention.16 Granting of provisional or protective measures on the basis of Ar-ticle 24 Brussels Convention is conditional “on the existence of a realconnecting link between the subject-matter sought and the territorial juris-diction of the State of the court before which those measures are sought”.Since then there has been considerable dispute about the interpretation of the“real connecting link”.17 Further restrictions apply if the interim reliefsought is an order requiring performance of an obligation of payment.18 InVan Uden the Court held

“Consequently, interim payment of a contractual consideration does notconstitute a provisional measure within the meaning of Article 24 unless,first, repayment to the defendant of the sum awarded is guaranteed if theplaintiff is unsuccessful as regards the substance of his claim and, second,the measure sought relates only to specific assets of the defendant locatedor to be located within the confines of the territorial jurisdiction of thecourt to which application is made.”

The Commission abstained from proposing a change in the wording of Ar-ticle 24, believing – in our view, wrongly – that the rule required no further

80/00, Italian Leather SpA v. WECO Polstermöbel GmbH & Co., with annotation by Kramer,40 CML Rev., 953–964.

14. Case C-391/95, Van Uden, [1998] ECR I-7091, 7122.15. Case C-99/96, Mietz v. Intership Yachting Sneek, [1999] ECR I-2277, 2299.16. For details see Stadler, “Erlass und Freizügigkeit einstweiliger Maßnahmen im

Anwendungsbereich des EuGVÜ”, (1999) JZ, 1089; Heß, “Die begrenzte Freizügigkeiteinstweiliger Maßnahmen im Binnenmarkt II – weitere Klarstellungen des Europäischen Ge-richtshof”, (2000) IPRax, 370; Sandrock, “Prejudgment attachments: Securing internationalloans or other claims for money”, 21 Internat. Lawyer (1987), 1.

17. Stadler, op. cit. supra note 16, 1093, 1097; Heß and Vollkommer, “Die begrenzteFreizügigkeit einstweiliger Maßnahmen nach Art. 24 EuGVÜ”, (1999) IPRax, 220, 224; Wolfand Lange, “Das Europäische System des einstweiligen Rechtsschutzes doch noch kein Sys-tem?”, (2003) RIW, 55, 58.

18. Dutch and French law provide a “kort geding” respectively “référé provision” proce-dure by which the plaintiff may apply for a court injunction ordering the defendant to pay a sumof money to the plaintiff as a provisional measure. In practice a large number of those courtorders become final and the parties thereafter do not institute litigation as to the substance ofthe matter. Basing these provisional orders on jurisdiction offered by the national law of theMember States according to Art. 24 of the Convention tends to undermine the jurisdictionalsystem of the Brussels Convention/Regulation.

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clarification after the rulings in Van Uden and Mietz. Consequently, Article31 of the Regulation adopts the wording of Article 24 of the Brussels Con-vention without any alterations. In fact, incorporating the principles of VanUden and Mietz into the new Article 31 would have offered more legal secu-rity to litigants as well as national courts.

The most significant reform of the Regulation pertains to Chapter III,“Recognition and Enforcement”, where the Regulation aims at making theprocedure for enforcement more efficient and rapid (see below, section 4).Above and beyond this, important consequences ensue from the change ofthe legal form from a Convention to an EC Regulation. Under the BrusselsConvention, the European Court of Justice could be presented with questionsfor a preliminary ruling by all courts of the Contracting States, with the ex-ception of courts of first instance. Under the Regulation, Article 68 EC nowapplies: this provides that, where a question on the interpretation of Title IVof the Treaty – which is the legal basis for Regulation 44/2001 – or on thevalidity or interpretation of acts of the institutions of the Community basedon this title, is raised in a case pending before a court of a Member State, arequest to the European Court of Justice to give a ruling thereupon may beissued only by those courts against whose decisions there is no judicial rem-edy under national law. In the past, it has been the Courts of Appeal in theMember States which have more frequently asked for preliminary rulingsfrom the Luxemburg Court, than for example, the German Bundesgerichts-hof, as a court of final instance. The restriction now provided by Article 68EC will reduce the number of proceedings for preliminary rulings before theEuropean Court of Justice and subsequently questions of interpretation ofthe Regulation will take much longer to be clarified by the Court of Justice.

Another consequence that follows from adopting the specific wordingwithin the Regulation, is that the text of the Regulation and the text of theLugano Convention (which governs these matters among the EC and EFTAStates) no longer coincide. Together with the fact that the Regulation doesnot apply to Denmark,19 we face a remarkable drifting apart from the oncehomogeneous rules of the Brussels and Lugano Conventions, which at thevery least necessitates future reform of the Lugano Convention.

19. Denmark, in accordance with Arts. 1, 2 of the Protocol on the position of Denmarkannexed to the Treaty on European Union and on the Treaty establishing the European Com-munity, does not participate in the adoption of regulations based on Title IV of the EC Treaty(“Visas, asylum, immigration and other policies related to free movement of persons”).

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3. Rules of international jurisdiction under the Brussels Conventionand Regulation 44/2001

3.1. General principles

The rules on jurisdiction, without doubt, constitute the core of the BrusselsConvention and the Regulation. The progress achieved, through agreementupon these rules, becomes apparent when one considers the recent failure ofa world-wide Hague Convention on jurisdiction, recognition and enforce-ment of civil judgments.20 The Hague Conference did not succeed in recon-ciling the differing approaches to international jurisdiction in Europe and theUnited States. The latter having a rather broad concept of international juris-diction (“minimum contacts”, “long-arm statutes”), in comparison to therather restrictive European model, based upon a limited number of preciselydefined rules. Unlike traditional conventions, the rules on jurisdiction of theBrussels Convention and the Regulation are not only applicable when a sec-ond court, deciding on recognition and enforcement of a foreign judgment,reviews the jurisdiction of the first State; they also apply for the court whichdecides on the action in the original proceedings, and this court is under theobligation to apply the standardized rules of jurisdiction (compétence direc-te) of the Convention or Regulation. To this extent the Convention, as well asthe Regulation, supersedes national law. In particular, this means that na-tional rules which associate jurisdiction solely with property or assets of thedefendant located in the Contracting State or the Member State where the ac-tion is brought (such as § 23 German Code of Civil Procedure) or with thenationality of the plaintiff, are not applicable (cf. Art. 14, 15 New FrenchCode of Civil Procedure). Such “exorbitant” jurisdiction has been excludedfrom the uniform European rules (Art. 3(2) Regulation 44/2001). The Con-vention, therefore, called for a broad consensus on the principles of interna-tional jurisdiction.

In some compensation for this restriction of national law, the court decid-ing on the recognition or enforcement of the judgment is – as a matter ofprinciple – not allowed to review the jurisdiction of the first court (Art.35(1), (3) Regulation 44/2001). Furthermore, the test of public policy, re-ferred to in Article 34 of the Regulation, may not be applied to the rules re-

20. Von Mehren, “Recognition of United States judgments abroad and foreign judgmentsin the United States: Would an international convention be useful?”, 57 RabelsZ (1993), 449 etseq. and id. “The Hague Jurisdiction and Enforcement Convention Project faces an impasse: Adiagnosis and guidelines for a cure”, (2000) IPRax, 465 et seq.; Heß, “Steht das geplanteweltweite Zuständigkeits- und Vollstreckungsübereinkommen vor dem Aus?”, (2000) IPRax,342 et seq. The Hague Convention of 30 June 2005 on Choice of Court Agreements was con-cluded instead.

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lating to jurisdiction. There are only a few exceptions to this prohibition re-garding jurisdiction, namely, in matters relating to insurance (Arts. 8–14Regulation 44/2001), jurisdiction over consumer contracts (Arts. 15–17Regulation 44/2001) and exclusive jurisdiction according to Article 22 of theRegulation.21 Both principles – compétence directe and the abandonment ofreview by subsequent Member State courts of the first State court’s jurisdic-tion – are notable landmarks for European civil procedure.22 This has far-reaching consequences for the defendant. Where the defendant does not wantto rely on an ex officio examination of jurisdiction by the foreign court, butactually wants to challenge the jurisdiction of the first State explicitly, thedefendant must bear the burden of making an appearance in the proceedingsof the court of the first State. A judgment rendered on the merits of the case,even in violation of the rules of jurisdiction of the Regulation,23 must be rec-ognized and enforced by any other Member State without further examina-tion of the jurisdiction. Thus, disputes on the issue of jurisdiction (with theexception of exclusive jurisdiction as afore mentioned) are to be settled inthe State of origin and, in principle, contradictory decisions between theMember States are accordingly avoided.

3.2. Defendant’s domicile as principle place of jurisdiction

According to Article 2 of the Brussels Convention, which has been retainedwithout amendment, by Regulation 44/2001, persons domiciled in a MemberState must, whatever their nationality, be sued in the courts of that MemberState. This is in accordance with, for example, German Law (§§ 12 et seq.German Code of Civil Procedure), but deviates from the concept in Franceand other Romanic legal systems, were jurisdiction is primarily based on na-tionality. In order to decide whether a party is domiciled in a particularMember State, the court applies the internal law of the Member State inquestion (Art. 59(1), (2) Regulation 44/2001). If the defendant is a companyor a legal person, Article 60 of Regulation 44/2001 now offers an indepen-

21. For the purpose of this article, from now on first the new Regulation 44/2001 will becited. The Brussels Convention will be taken into consideration only insofar as its rules differfrom the Regulation or it requires special consideration.

22. Geimer, op. cit. supra note 12, at 222 and 224.23. The first court must examine its jurisdiction ex officio and if it lacks jurisdiction must

dismiss the action, even if the defendant does not enter an appearance. The Convention alreadyrelieved the defendant of the burden to enter an appearance solely to plead lack of jurisdiction.However, if he decides to defend the case, he must plead lack of jurisdiction. Otherwise, ac-cording to Art. 24 Regulation 44/2001, jurisdiction of a court of a Member State will be as-sumed where the defendant enters an appearance without contesting the jurisdiction and noother court has exclusive jurisdiction by virtue of Art. 22.

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dent interpretation of its “domicile” and no longer refers to the principles of“conflicts of laws”, as the Brussels Convention did. Article 60(1) of theRegulation offers three possibilities, with regard to determining the domicileof a company: statutory seat, central administration or principle place ofbusiness. Thus, the uncertainty arising out of the diversity of these criteria isnot at the risk of the plaintiff, but of the defendant, who must take account ofthe fact that an action might be brought against him in any of the threeplaces if they do not coincide.

Moreover, the domicile-based concept defines the scope of application ofthe rules on jurisdiction of the Regulation (Art. 4). If the defendant is not do-miciled in a Member State, jurisdiction of the court, assigned with the mat-ter, shall be determined by its internal law not by the Regulation. In otherwords, Chapter II (“Jurisdiction”) of the Regulation applies whenever the de-fendant is domiciled in a Member State, whereas the domicile or habitualresidence of the plaintiff is of no relevance.24 Application of the Regulation’srules on jurisdiction is, therefore, not restricted to “EC cases”. The Regula-tion protects persons domiciled in a Member State, even if the plaintiff is do-miciled in a non-Member State.25

3.3. Special jurisdiction

In addition, Chapter 2 Section 2 of the Regulation (which contains Arts. 5–7)provides for a number of special jurisdiction cases, where the choice of juris-diction is the plaintiff’s prerogative. These provisions are based on the ideathat in certain well-defined cases there is a particularly close relationship be-tween a dispute and a specific court, which may be invoked to facilitate op-portune resolution of the case. They thus allow, to a certain extent, someforum shopping, and by providing the plaintiff with the freedom to choose acourt, they enable him to bring an action before a court which is more conve-nient to him than that of the defendant’s domicile. In recent years, the Euro-pean Court of Justice has had to give special attention to two provisionscontained in Section 2: Article 5(1) and Article 5(3), offering special juris-diction in matters relating to contract and in matters relating to tort, delict or

24. Case C-412/98, Group Josi, [2000] ECR I-5929.25. Beyond that it is disputable whether application of Chapter II requires any cross-border

element of litigation at all. Some argue that it is applicable as well in merely “internal cases”where both parties are domiciled in the same Member State; Schack, InternationalesZivilverfahrensrecht, 3rd ed. (Beck, Munich, 2002), Ann. 238 et seq.; Kropholler, Europäi-sches Zivilprozessrecht, 7th ed. (Recht und Wirtschaft, Heidelberg, 2002), Art. 2 Ann. 5 et seq.In Case C-281/02, Owusu v. Jackson, judgment of 1 March 2005, the ECJ held that Chapter 2 isat least applicable to legal relationships involving only one Contracting State and one or morenon-Contracting States.

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quasi-tort respectively. At the same time, within the Chapter on Jurisdiction,Article 5(1) is the provision which underwent the most significant changefrom the Convention to the Regulation.

3.3.1. Jurisdiction in matters relating to a contract3.3.1.1. Place of performance – Place of delivery. Article 5(1) of theBrussels Convention was, from the outset, something of stumbling blockwhich provoked vivid discussion right from its inception. In order to portraythe notion of the revised Article 5(1) of Regulation 44/2001 accurately, ashort reminder of the problems caused by the former wording is required.

Article 5(1) of the Brussels Convention established special jurisdiction inthe courts where the contractual obligation in question was to be performed.This led to the often criticized division of jurisdiction for a single contract,as a result of the fact that each obligation arising out of the contract mayhave a different place of performance.26 The most important question whichhad to be answered, with regard to affirming a court’s jurisdiction, was howto define “place of performance”. The European Court of Justice, in a 1976decision,27 rejected the, otherwise generally accepted, approach of interpret-ing the terms of the Brussels Convention independently and by referenceprincipally to the system and objectives of the Convention, in order to ensurethat it is fully effective.28 With respect to the “place of performance” in Ar-ticle 5(1) of the Brussels Convention, the Court came to the conclusion thatit was impossible to find an independent definition without reference to thelaw of the Member States. With regard to the differences between nationallaws of contract and in the absence, at this stage, of any unification of thesubstantive law, there existed no common standard in the Contracting Statesof how to define “place of performance”. Thus, it became settled case law toqualify “the place of performance” according to the substantive law appli-cable under the rules of “conflict of laws” of the court before which the mat-ter was brought.29 The European Court of Justice adhered to this policydespite severe criticism in the Contracting States,30 which highlighted thatthe determination of international jurisdiction becomes rather – if not too –

26. Case 14/76, De Bloos, [1976], ECR 1497.27. Case 12/76, Tessili, [1976] ECR 1473.28. See in particular Case 12/76, Tessili, supra, at para 9; Case 150/77, Bertrand, [1978]

ECR 1431. See b) below, on matters related to a contract or tort for examples of concepts whichthe Court did interpret “independently”.

29. Case 12/76, Tessili, supra, para 15; Case 266/85, Shenavai v. Kreischer, [1987] ECR239 para 7; Case C-288/92, Custom Made Commercial v. Stawa, [1994] ECR I-2913 para 26;Case C-440/97, GIE Groupe Concorde, [1999] ECR I-6307.

30. Schack, Internationales Zivilverfahrensrecht, 3rd ed. (Beck, Munich, 2002), Ann. 271et seq.; cf. Cour de Cassation: (1998) Cass.com. Rev.crit., 117; (1997) Cass.com. Rev.crit.,585.

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complicated, if questions regarding “conflicts of law” have to be decided inthis context and at such an early stage of the proceedings.

Against the background of this case law, Article 5(1) of Regulation 44/2001 now takes a different approach to jurisdiction in matters relating to acontract. With the intention of focusing special jurisdiction in contract-re-lated law suits to a single court, the revised wording of Article 5(1)(b) nowgives an independent definition of the place of performance, which appliesto all obligations arising from a contract:

“ ..for the purpose of this provision and unless otherwise agreed, the placeof performance of the obligation in question shall be:– in the case of the sale of goods, the place in a Member State, where,under the contract, the goods were delivered or should have been deliv-ered,– in the case of the provision of services, the place in a Member Statewhere, under the contract, the services were provided or should have beenprovided.”31

Notwithstanding the improvement that the reform eliminates the possible di-vision of jurisdiction for litigation arising out of the same contract, the re-vised rule extinguishes an old problem by creating a new one. The mostsignificant example involves the sale of goods, where the “place of perfor-mance” will be the place of delivery. As the Regulation does not offer a defi-nition of this term, the application of Article 5(1) is bound to encounterdifficulties. In an international sale with goods being sent from one MemberState to another, for example, is the “place of delivery” the place where thevendor has to dispatch the goods or the place where the buyer receivesthem?32 Until the European Court of Justice gets the opportunity to decidethis issue, parties will have to cope with considerable legal uncertainty. Forcontracts that do not fall within the scope of Article 5(1)(b), the Regulationretains the wording of Article 5 of the Brussels Convention (Art. 5(1)(c) and(a)) and insofar “place of performance” must continue to be determined ac-cording to the contract law applicable under the rules of “conflicts of laws”of the forum State.33 In this respect, the reform of Article 5(1) of Regulation44/2001 cannot be considered satisfactory.

31. The new regulation is based on Art. 46 of the French Nouveau Code de Procédure civil.32. Among others: Geimer and Schütze, European Civil Procedure, 2nd ed. (Beck,

Munich, 2004), Art. 5 Annot. 87 hold that the place where the vendor dispatches the goods isthe place of delivery.

33. Geimer and Schütze, op. cit. supra note 32, Art. 5 Annot. 93; Schlosser, EU-Zivil-prozessrecht, 2nd ed. (Beck, Munich, 2003), Art. 5 EuGVVO Annot. 10c.

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3.3.3.2. Matters relating to a contract or tort. Under the Brussels Con-vention and the Regulation, Article 5(1) applies only to matters relating to acontract, whereas in matters relating to a tort (Art. 5(3)), the plaintiff maybring his action before the court where the harmful event occurred. The Eu-ropean Court of Justice has consistently held that these two expressions –“matters relating to contract” and “relating to a tort” – are not to be taken asa reference to national law of one of the Contracting States, but must be in-terpreted independently in the light of the objectives and the general schemeof the Convention.34 The Court set out in a number of cases that only such aninterpretation can ensure the uniform application of the Convention and theRegulation, respectively. Both instruments endeavour to lay down commonrules on jurisdiction for the courts of the EC and to strengthen legal protec-tion of parties, by enabling claimant and defendant to identify easily thecourt in which an action may be brought.35 According to the Court’s caselaw,36 “contract”, in the terms of Article 5(1), covers situations in which anobligation is freely assumed by one party towards another. This consists notonly of primary obligations arising out of a contractual agreement, but alsolegal obligations, inter alia, claims for damages for the breach of contract orclaims of restitution after cancellation of the contract.37 Further, the Euro-pean Court of Justice defines the scope of Article 5(3) in negative terms, inrelation to (1): “Matters relating to tort, delict or quasi-delict within themeaning of Article 5(3) Brussels Convention covers all actions which seek toestablish liability of a defendant and which are not related to a “contract”within the meaning of Article 5(1) of the Convention”.38 Superficially, thereappears to be a clear distinction, enabling application with no problems.Nevertheless, recent decisions from the European Court of Justice reveal thatthis approach does not work in borderline cases.

34. Case 34/82, M. Peters Bauunternehmung, [1983] ECR 987; Case 9/87, Arcado, [1988]ECR 1539, 1552; Case C-26/91, Handte, [1992] ECR I-3997, 3990; Case C-261/90, Reichertand Kockler [1992] ECR I-2149; for further case law cf. Geimer and Schütze, op. cit. supranote 32, Art. 5 Annot. 13 et seq.

35. Case C-295/95, Farrel, [1997] ECR I-1683 para 13; Case C-256/00, Besix, [2002] ECRI-1737 para 25, 26.

36. Case C-334/00, Tacconi SpA, [2002] ECR I-7357.37. Case 14/76, De Bloos, [1976] ECR 1497; Case 266/85, Shevanai, [1987] ECR, 239;

Austrian High Court (OGH), (1998) öJZ, 544; Oberlandesgericht Düsseldorf, (1987) IPRax,236; Oberlandesgericht Jena, (1999) RIW, 703; for details cf. Geimer and Schütze, op. cit.supra note 32, Art. 5 Annot. 24–50, 63 et seq.

38. Case 189/87, Kafelis, [1988] ECR 5565, 5581; Case C-261/90, Reichert and Kockler,[1992] ECR I-2149; Case C-51/97, Réunion Européenne, [1998] ECR I-6511.

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(i) Case C-96/00, Gabriel and Case C-27/02, Engler.39 The defendant, amail-order company established in Germany, sent a letter to a consumer (MrGabriel), domiciled in Austria, which was likely to create the impression thata prize would be awarded to Mr Gabriel, on demand, under the condition thathe ordered goods to a specific amount. Despite an order for goods, duly re-turned, by Mr Gabriel to the defendant, the “prize” was never awarded tohim. He sued the German company in an Austrian Court and claimed pay-ment of the financial benefit promised in the letter. The claim was based onSec. 5j of the Austrian Consumer Protection Law, which provides that under-takings which send prize notifications or similar communications to specificconsumers, and through the wording of those communications confer the im-pression that the consumer has won a particular prize, are obliged to give theprize to the consumer.

The Austrian court could only claim international jurisdiction to hear anddetermine the case based on Article 5(1) or Article 13 of the Brussels Con-vention (now Art. 15 Regulation 44/2001), which required “proceedings con-cerning a contract concluded by a person for the purpose which can beregarded as being outside his trade or profession ...”. The Austrian ObersteGerichtshof stayed proceedings and submitted for preliminary ruling, to theEuropean Court of Justice, the question whether Sec. 5j Consumer Protec-tion Law, which entitles a consumer to claim prizes ostensibly won by them,constitutes a contractual claim under Article 13(3) or Article 5(1) of theBrussels Convention, or whether it constitutes a tortious claim.

Despite the fact that Mr Gabriel had indeed entered into a contract withthe defendant by ordering goods and thereby fulfilled the condition for the“prize”, various statements in the letter sent to Mr Gabriel made clear thatthe “prize” did not constitute a firm promise from the defendant and thus didnot invoke any obligation on his part. The essential issue presented to theCourt was, thus, whether the action was contractual in nature, notwithstand-ing the fact that the claim could not be based on the terms of the contractbetween the parties, but only on the Austrian legislation protecting consum-ers. Sec. 5j of the Austrian Consumer Protection Law could be interpreted asamending the contractual obligations explicitly agreed upon by the parties;however, it could just as plausibly be construed as imposing a sanctionagainst an undertaking, such as the defendant, for violating rules of faircompetition and, thus consequently be defined as a rule of tort. The Euro-pean Court of Justice did not take into consideration issues regarding tort:the Court found that there was indubitably a contractual link between the

39. Case C-96/00, Gabriel, [2002] ECR I-6367; Case C-27/02, Petra Engler v. JanusVersand GmbH, judgment of 20 Jan 2005, nyr.

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parties once Mr Gabriel had ordered goods offered by the defendant, andthat accordingly the conditions of Article 13 of the Brussels Conventionwere satisfied in this case. Article 13 must be interpreted in such a way as toenable the consumer to bring all claims under a consumer contract before thesame court. If a consumer seeks an order according to Sec. 5j of the AustrianConsumer Protection Law against the vendor, this is so closely linked to thecontract between the parties that jurisdiction of another court would be inap-propriate. The Court pointed out that a situation in which several courts havejurisdiction in respect of one and the same contract must be categoricallyavoided.40

More recently, the Court of Justice had to decide on a similar case. InEngler v. Janus Versand GmbH 41 the consumer, Petra Engler, unlike MrGabriel, had not actually ordered any goods and, therefore, had not enteredinto a contract with the mail-order company Janus. She, nevertheless,claimed the “prize” promised by Janus under Section 5j of the Austrian Con-sumer Protection Law. The Court held that under these circumstances Article13 of the Brussels Convention does not apply as its wording requires “a con-tract concluded by a person...”. Nevertheless, the Court ascertained that theobligation to pay the “prize” in such cases is still an obligation “relating to acontract” in terms of Article 5(1) Brussels Convention, which does not implythat a contract must actually have been entered into by the litigants (thispoint is also discussed below, see text at and note 51, below).

(ii) Case C-334/00, Tacconi SpA v. Heinrich Wagner Sinto MaschinenfabrikGmbH (HWS).42 In this case, Tacconi SpA, a company incorporated in Italy,brought an action against HWS, a company incorporated under German Law,claiming compensation to rectify the damage allegedly caused to Tacconi bya breach of contract by HWS, regarding its duty to act honestly and in goodfaith during pre-contractual negotiations. Tacconi had, with the consent ofHWS, entered into a leasing contract for a moulding plant with an Italianleasing company (BN commercio e finanza SpA). Successful execution ofthe licence agreement for the moulding plant required that a sales contract beinitially concluded between BN and HWS; HWS refused, without justifica-tion, to complete said contract. Tacconi alleged that their legitimate interestswere thereby infringed by HWS, having relied on the successful conclusionof the contract of sale. Tacconi derived its claim from a pre-contractual li-

40. See also Case C-256/00, Besix, [2002] ECR I-1699. This concept is in accordance withthe new wording of Art. 5(1) Regulation 44/2001, which provides a single forum for all obliga-tions arising out of a contract.

41. Cited supra note 39; cf. (2005) BB, 739.42. Cited supra note 36.

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ability (Art. 1337 of the Italian Civil Code) and argued that under Article5(3) of the Brussels Convention the “place where the harmful event oc-curred” must be understood as the place where the aggrieved party has sus-tained a loss. This loss was incurred in Perugia, Italy, where Tacconi had itsoffice. HWS, in its defence, pleaded that the Italian court lacked jurisdictionbecause Article 5(1) of the Brussels Convention was applicable instead ofArticle 5(3). One of the questions finally presented to the European Court ofJustice was therefore, whether an action against a defendant seeking to es-tablish pre-contractual liability falls within the ambit of Article 5(1) or (3) ofthe Brussels Convention.

The European Court of Justice again referred to the concept of an inde-pendent interpretation of the terms “matters relating to a contract or a tort”.It held that while Article 5(1) does not require a contract to have been con-cluded between the parties, it is nevertheless essential to identify an obliga-tion freely assumed by one party towards another. Considering thecircumstances present in the main proceedings, the Court could not findsuch an obligation. It decided that the liability which may follow from thebreach of a pre-contractual duty – the unjustified breaking off of negotia-tions – could derive only from rules of law such as Article 1337 of the ItalianCivil Code. Therefore, according to the Court, an action founded on the pre-contractual liability of the defendant is a matter relating to tort, delict orquasi-delict within the meaning of Article 5(3) of the Brussels Convention.

From the analysis of these two decisions, it is apparent that the willing-ness of the Court to interpret terms of the Brussels Convention or the Regu-lation, which are clearly derived from substantive law such as “contract” or“tort”, independently, having regard primarily to the objectives and generalscheme of the Convention, inevitably encounters difficulties.43 The rules ofthe Convention as well as of Regulation 44/2001 are procedural in nature,covering jurisdiction and enforcement of judgments; as a result, it should beof no surprise, that they do not offer a “general scheme” or any underlying“objectives” which could assist in defining “contractual” or a tortious liabil-ity. Considering the substantive law of the Contracting States or MemberStates is, similarly, of no help in cases such as those presented before the Eu-ropean Court of Justice. Beyond an undisputed core of clearly contractualobligations on the one hand and obligations obviously arising out of a tort onthe other hand, there will always remain a corona of cases that cannot be eas-ily assigned under substantive national law. Pre-contractual obligations areone example. Whether such obligations are qualified as arising out of a con-

43. See Loussouarn and Bourel, Droit international privé, 5th ed. (Dalloz, Paris, 1996), No.485.

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tract or a tort under national law, may depend upon particular principles ofsubstantive law. In Germany, pre-contractual obligations (culpa in contra-hendo) are perceived as “contractual” or, at least, “quasi-contractual”. This isa consequence of the rather narrow concept of German tort law, which doesnot allow compensation for a pure financial loss without the injury of a par-ticular object of legal protection – so-called “absolute rights” – such as life,health, or personal property. For that reason, German legal doctrine adopteda contractual concept for the breach of pre-contractual obligations. InFrance, Italy and other countries of the Romanic law family such difficultiesin tort law do not exist and it was thus not necessary to expand the ambit ofapplication of contract law.44 Nevertheless, the reasons given by the Euro-pean Court of Justice in the Tacconi case are unpersuasive and involvemerely a superficial analysis of the inherent problems. The fact that the Ital-ian Civil Code contains a rule explicitly imposing duties upon the parties toact honestly and in good faith during contract negotiations does not, andshould not, lead inevitably to tortious liability. Pre-contractual liability is,obviously, not an obligation freely assumed by a potential party to a contract,but this is equally true for all secondary obligations arising out of a contract,e.g. a liability for a breach of contract, which falls undoubtedly within thescope of Article 5(1).

Analogous problems appear under Article 5(1) and (3) of the Regulation,where national substantive law extends the scope of protection under con-tractual obligations to third parties to the contractual negotiations. UnderGerman law, for example, in addition to the general (tort) rule against caus-ing harm to others, case law has established an equivalent contractual obliga-tion for the contracting parties. This rule, similarly, finds application whenthe injured person is a non-contracting party herself but is, nevertheless,closely related to the contractual relationship, such as a child accompanyingits parents (the buyer) to the vendor’s salesroom and being injured there dur-ing negotiations due to the vendor’s negligence.45 Once more this solution

44. Cf. e.g. the broad concept of tort liability in France: Sec. 1382, 1384 Code civil. Beyondthat, French law – contrary to German law – does not allow the plaintiff to base its claimsarising out of the facts of a case accumulatively on contract as well as tort. Due to that principlethere is clear distinction between “contract” and “torts”.

45. Krebs, Sonderverbindung und außerdeliktische Schutzpflichten (Beck, 2000); Martiny,“Pflichtenorientierter Drittschutz beim Vertrag mit Schutzwirkung für Dritte – Eingrenzunguferloser Haftung”, (1996) JZ, 19 et seq.; Canaris, “Die Haftung des Sachverständigen zwi-schen Schutzwirkungen für Dritte und Dritthaftung aus culpa in contrahendo“, (1998) JZ, 603et seq. Today case law in this respect tends to be too generous to establish liability in favour ofnon parties. Cf. Stadler in Jauernig (Ed.), Bürgerliches Gesetzbuch, Kommentar, 11th ed.(Beck, Munich, 2003), § 311 paras. 34–49; § 328 paras. 19–40.

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has been developed in order to circumvent restrictions of German tort lawand might not be necessary under the tort law of another Member State.

From the above discussion it becomes evident that peculiarities of sub-stantive law should not determine the interpretation of terms of the BrusselsConvention or Regulation 44/2001. A uniform application of the rules of in-ternational jurisdiction among the Member States is required in order toachieve one of the main objectives of common rules of European civil proce-dure: defendants as well as plaintiffs must be able to identify easily the courtin which an action may be brought. The European Court of Justice has, sofar, failed in its attempts to find a practical differentiation between Article5(1) and (3). Guidelines for a solution should revolve around the notion thatrules on jurisdiction must be highly predictable, and be founded upon theprinciple that jurisdiction is generally based on the defendant’s domicile. Exceptions to Article 2 should be accepted only in a few well-defined situa-tions, in which the subject-matter of the dispute warrants such deviationthrough a special link.46 Article 5(3) provides for jurisdiction of the courtwhere the harmful event occurred or may occur. It is settled case-law, thatthis implies a choice of forum for the plaintiff in some cases. If the placewhere the event establishing tortious liability and the place where damageensues are different, the defendant may be sued, at the option of the plaintiff,in either place.47 This privilege, for the plaintiff, should only apply as an ex-ception. With respect to the relationship between Article 5(1) (on matters re-lating to a contract) and (3) (on matters relating to tort), one could deducethat, where doubt is present, preference should be given to the application ofArticle 5(1).48 Such an interpretation would be in accordance with the ideathat where an exception to the principle laid down in Article 2 is being ac-cepted the court having concurring jurisdiction should be predictable as faras possible. The scope of application of provisions such as Article 5(3) giv-ing the plaintiff a choice of forum should be restricted as tightly as possible.

An alternative resolution to the dilemma would be to favour a rather nar-row interpretation of Article 5(1), namely, that “matters relating to a con-tract” must be understood as requiring the parties to have definitely enteredinto a contract, and as including only those claims between the parties whicharise directly out of this relationship.49 Under this narrow formulation, pre-contractual liability, as in the Tacconi case, would indeed fall within the

46. See Regulation 44/2001, Introductory note No. 11.47. Case 21/76, Mine de Potasse d’Alsace, [1976], ECR 1541.48. See e.g. Stadler, in Heinrich (Ed.), Festschr. Musielak (Beck, Munich, 2004), p. 569 et

seq. at 587.49. Schmidt-Kessel, “Culpa in contrahendo im Gemeinschaftsprivatrecht”, (2004) ZEuP,

1019 et seq.

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scope of Article 5(3) of the Regulation. This strict interpretation is in accor-dance with the Court of Justice’s decision, in 2002, in Verein für Konsumen-teninformation v. Henkel,50 where the Court held that an action brought byan Austrian consumer association seeking an injunction against the defen-dant, to prevent him from using particular terms in contracts concluded withAustrian clients, is not a matter relating to contract. The Court emphasizedthat Article 5(1) of the Convention does not apply where the right to bring anaction does not stem from a contract between the parties but from statute.Conversely, one may contend that such a strict interpretation of Article 5(1)is inconsistent with an earlier decision of the European Court of Justice,from 1982, which held that a dispute as to the existence of the contract doesnot prevent the application of Article 5(1) of the Brussels Convention, pro-viding that the obligation is prima facie of a contractual nature and that theaction is bona fide brought by the plaintiff.51 According to this decision, theactual existence of a contract between the litigants is not a prerequisite forthe application of Article 5(1). Altogether, there is no consistent case lawproviding decisive arguments as to the interpretation of Article 5(1) of theConvention, and thus there remains an evident lack of guidance for the na-tional courts upon this issue.

Finally, the number of difficulties arising out of Article 5(1), may providesupport for the views of those who deny the need for a special jurisdiction inmatters relating to a contract and who pleaded in favour of the abrogation ofArticle 5(1) in Regulation 44/2001.52 The Brussels Convention had adoptedthe forum executionis, from German law, despite the fact that it was un-known in most other Contracting States;53 whether the place of performanceoffers any particularly close relationship between the dispute and the court isindeed questionable. In the majority of cases, there is no guarantee that evi-dence will be more available at the place of performance (when the action isbrought, goods have often been resold and delivered elsewhere).54 Equally,the likelihood that the court at the place of performance of a contractual obli-gation will apply its own substantive law of contract is not particularly high.According to the 1980 Rome Convention on the law applicable to contrac-

50. Case C-167/00, Verein für Konsumenteninformation v. Henkel, [2002] ECR I-8111.51. Case 38/81, Effer SpA, [1982] ECR 825. In Tacconi (supra note 36) the Court again

pointed out that under Art. 5(1) it is not necessary that the parties actually entered into a con-tract.

52. For details see Kohler, op. cit. supra note 10, p. 12.53. Schlosser, op. cit. supra note 33, Art. 5 EuGVVO Annot. 1.54. Geimer and Schütze, op. cit. supra note 32, Art. 5 Annot. 8; Gsell, “Autonom

bestimmter Gerichtsstand am Erfüllungsort nach der Brüssel I-Verordnung”, (2002) IPRax,484 at 489.

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tual obligations,55 the place of performance is of no special relevance in de-termining the applicable law.56 Consequently, future revision of the Regula-tion 44/2001 should seriously consider whether special jurisdiction formatters relating to contracts as provided by Article 5(1) is necessary at all.

4. Recognition and Enforcement under the Brussels Convention andRegulation 44/2001

4.1. Enforcement procedure

One of the main intentions of the Brussels Convention, as was mentionedabove, was to facilitate, to the greatest possible extent, the free movement ofjudgments among the Contracting States, by providing for a simple and rapidenforcement procedure.57 Under the Brussels Convention, this meant that ajudgment given in one Contracting State had to be recognized in the otherStates, without the use of any special procedure (Art. 26 Brussels Conven-tion). An application made within the State where enforcement was soughtwas the only requirement for declaring a judgement enforceable in this Con-tracting State. Without any substantive review of the foreign judgment, theapplication could be refused only for one of the reasons specified in Articles27 and 28 of the Convention. In practice, the objection raised in most casesby the defendant was Article 27(2), under which a judgment given in defaultof appearance was not recognized if the defendant had not been duly servedwith the document which instituted the proceedings, or with an equivalentdocument, in sufficient time to enable him to arrange for his defence. Thereis considerable case law on Article 27(2), which cannot be discussed here. InRegulation 44/2001, the corresponding Article 34(2) is worded differently:“A judgment shall not be recognised ... where it was given in default of ap-pearance, if the defendant was not served with the document which institutedthe proceedings or with an equivalent document in sufficient time and insuch a way as to enable him to arrange for his defence, unless the defendantfailed to commence proceedings to challenge the judgment when it was pos-sible for him to do so…”. Firstly, the last part of the provision now assigns tothe defendant, the burden of challenging a judgment by default in the Stateof origin. Under the Regulation, he can no longer abstain from legal rem-edies in the State of origin of the judgment, and simply rely upon the fact

55. O.J. 1998, C 27/34.56. Geimer and Schütze, op. cit. supra note 32, Art. 5 Annot. 9.57. See inter alia Case C-414/92, Solo Kleinmotoren, [1994] ECR I-2237 para 20; Case C-

267/97, Coursier, [1999] ECR I-2543 para 25.

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that execution will be denied in another Member State due to irregularities inthe service of process.

A more fundamental change in the enforcement procedure results fromArticle 41 of the Regulation, under which the judgment shall be declared en-forceable immediately on completion of the formalities in Article 53, with-out the requirement of any review under Articles 34 and 35 (formerly Arts.27, 28 Brussels Convention). The defendant is at this stage of the proceed-ings not entitled to make any submissions on the application (Art. 41 of theRegulation); if he intends to object to the enforceability of the judgment, hemust lodge an appeal. It was the explicit intention of the Regulation to makethe enforcement procedure more efficient and rapid. In order to achieve thisobjective, the declaration that a judgment given in another Member State isenforceable, now has essentially to be issued automatically. As mentionedearlier, this is but one step towards surrendering the declaration of enforce-ability altogether, as currently provided by the Regulation for the creation ofa European enforcement order for uncontested claims, mentioned above. Asa consequence, objections by the defendant, which can now be raised, ac-cording to Article 34, 35 of Regulation 44/2001, after lodging an appeal,may be of no relevance in the future. Those who purport that the legal sys-tems within the Community, with respect to substantive as well as procedurallaw, are still too heterogeneous for an absolute free movement of judg-ments58 refer inter alia to the fact that there is noteworthy case law relatingto Article 27(1) Brussels Convention, demonstrating the necessity to have apublic policy restriction.59 On the other hand, courts throughout the MemberStates have always been reluctant to allow parties to invoke public policy inthe end (see below, 4.2). Article 27(1), therefore, is not a real drawback forthe free movement of judgments.60

4.2. Public policy Clause of Article 34(1) of Regulation 44/001/EC

The objection that recognition and enforcement of a judgment is contrary topublic policy in the Member State where execution is sought, is often raised

58. Wagner, “Vom Brüsseler Übereinkommen über die Brüssel I-Verordnung zum Euro-päischen Vollstreckungstitel”, (2002) IPrax, 75, 89 et seq.; Bruns ”Der anerkennungsrecht-liche ordre public in Europa und den USA”, (1999) JZ, 278; Schlosser, op. cit. supra note 33,Art. 34–36 EuGVVO paras 2.

59. Cf. Case C-7/98, Krombach v. Bamberski, [2000] ECR I-1935; BGH, (2000) NJW,3289; BGH, (1987) IPRax, 219; BGH, (1993) NJW, 3269; Cour de Cassation, (1979) Clunet,380; Cour d’appel Paris, (1981) Rev. crit., 113; Cour de Cassation, Rev. crit. 1981, 553; Courde Cassation, (1992) Rev. crit., 516; Cour de Cassation, (1999) Bulletin civil, I n. 92; Courd’appel Luxembourg (Central Bank of Irak), Pasicrisie lux. 31 (2000), p. 227 et seq.

60. Jayme and Kohler, “Europäisches Kollisionsrecht 2001: Anerkennungsprinzip stattIPR?”, (2001) IPRax 501, 507.

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by defendants, but has been accepted by the courts in only a few cases.61 TheEuropean Court of Justice has always emphasized that recourse to the “pub-lic policy” clause must be ultima ratio and can be envisaged only where en-forcement of the foreign judgment would constitute a manifest breach of arule of law, regarded as essential, in the legal order of the State in which rec-ognition is sought. Article 34 of the Regulation, in accordance with this caselaw, now accentuates that “recognition [must be] manifestly contrary to pub-lic policy”. Nevertheless, the isolated cases in which recourse to the publicpolicy clause has been permitted, indicate the indispensable nature of theclause and that any thoughts of forgoing this test altogether must be recon-sidered. The necessity of the public policy clause is remarkably exemplifiedby Krombach, decided in 2000.62

Mr Krombach, a physician domiciled in Germany, was the subject of apreliminary prosecution in Germany, following the death of a 14-year oldgirl of French nationality. Subsequently prosecution in Germany ceased.Thereupon, the victim’s father initiated an investigation in France, based onthe fact that the victim was a French national. By judgment of the Chambrede Accusation in Paris, Mr Krombach was committed for trial before theCour d’Assises. Together with the criminal proceedings, the father of the vic-tim brought a civil claim against Mr Krombach before the same court. Al-though Mr Krombach was ordered to appear in person, he did not attend thehearing. Consequently, the court applied the contempt procedure, providedfor by Article 627 et seq. of the French Code of Criminal Procedure. UnderArticle 630 no defence counsel may appear on behalf of the person in con-tempt if the person is charged with an intentional offence and does not ap-pear in person. Through application of this ruling, the Cour d’Assisesreached its decision without hearing the defence counsel instructed by MrKrombach. The court imposed a custodial sentence of 15 years, after findingMr Krombach guilty of violence resulting in involuntary manslaughter,whilst simultaneously ordering him to pay compensation to the victim’s fa-ther, with regard to the civil proceedings.

German courts, in the first instance, declared the civil judgment enforce-able in Germany. Mr Krombach appealed to the Bundesgerichtshof, whichsubsequently referred questions to the European Court of Justice for prelimi-nary ruling. The Bundesgerichtshof took the position inter alia that the

61. The German Bundesgerichtshof rejected recognition and enforcement of a foreignjudgment based on Art. 27(1) of the Brussels Convention in only a few cases: BGH, (1987)IPRax, 219; BGHZ 123, 268; BGH, (1998) IPRax, 205 (Krombach).

62. Krombach, cited supra note 59; for comments cf. case note by van Hoek 38 CML Rev.,1011 et seq.; Heringa, European Human Rights Cases (2000), p. 491; von Bar, (2000) JZ, 725et seq.

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63. Krombach, cited supra note 59, para 39.64. Judgment 23 Nov. 1993 Poitrimol, Ser. A No. 227–A; Judgment 22 Sept. 1994

Pelladoah Ser. A. No. 297–B, and Judgment 21 Jan. 1999 Van Geyseghem, (1999) EuGRZ, 9.65. Cf. Case 49/84, Debaecker, [1985] ECR 1779 para 10.66. See also the joint programme of the Commission and the Counsel adopted 30 Nov. 2000

of measures for the implementation of the principle of mutual recognition of decisions in civiland commercial matters; O.J. 2000, L 12/1.

67. For details cf. Stadler, “Revision des EuGVÜ”, Veröffentlichungen der Wissenschaft-lichen Vereinigung für Internationales Verfahrensrecht e.V., vol. 11 (2000, Gieseking, Biele-feld), p. 43 et seq.

courts of the State in which enforcement is sought, can take into account, un-der the public policy clause of Article 27(1) of the Brussels Convention, thatthe French criminal court did not allow Mr Krombach to be defended by alawyer in the civil litigation for damages instituted within the criminal pro-ceedings. The European Court of Justice finally affirmed the position of theBundesgerichtshof, and was concurrently provided with the opportunity tospecify general guidelines as to the interpretation of Article 27 of the Con-vention. The Court held that the provision must be construed strictly, inas-much as it constitutes an obstacle to one of the fundamental objectives of theConvention. Recourse to Article 27(1) is to be had only in exceptional cases.The courts of the State where enforcement is sought, are, in principle, free todetermine, according to their own conceptions, what public policy requires.Nevertheless, establishing limits to this public policy clause is required forinterpretation of the Convention and, therefore, affirms the competence ofthe European Court of Justice (with reference to interpretation of this provi-sion). With regard to the particular case, the Court pointed out that the “rightto be defended” is one of the fundamental elements in a fair trial and “an ac-cused person does not forfeit entitlement to such a right simply because he isnot present at the hearing”.63 This position corresponds with the case law ofthe European Court of Human Rights.64 Although the Convention is intendedto secure the simplification of formalities governing recognition and en-forcement, the Court held that it is not permissible to achieve this aim by un-dermining the right to a fair trial.65

The decision of the European Court of Justice in Krombach was almostunanimously approved in the Member States. Amid the Tampere resolu-tions66 and the ambition of the Commission to abolish the public policyclause altogether – which the Commission had proposed already for theRegulation 44/200167 – it seems noteworthy that there are indeed situationswhere the law of one Member State deviates to an unacceptable degree fromthe fundamental principles in other Member States and even from the Euro-pean Convention on Human Rights to necessitate recourse to such a clause.The established practice of including public policy clauses as a “sheet an-

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chor” in international conventions is not a superfluous addition.68 Within theEC, harmonization of substantive and procedural law is embryonic.69 Thewaiving of a public policy clause should be a consideration at the conclusionof the harmonization process not at its inception.

5. Conclusion

The ongoing debate on the necessity for a public policy-clause within an“area of freedom, security and justice” is one of the key issues for the futureof judicial cooperation in the EC. The Regulation creating a European en-forcement order for uncontested claims invokes the “mutual trust in theadministration of justice in the Community” as a basis for allowing enforce-ment of a judgment in all other Member States without further judicial re-view. Considering the rapid geographical expansion of the EC, it becomesincreasingly apparent that this is an ornamental phrase denoting a politicalpostulate rather than reality. It is undisputed that the sound operation of theinternal market calls for measures to lighten the burden of judicial coopera-tion. However, those measures have to be implemented with a sense of pro-portion for the conflicting interests of the litigants in civil matters. For thefurther development of European Civil Procedure, it is of utmost importancethat the parties of the litigation do not lose confidence in the courts. The sur-rendering of any kind of review of foreign judgments might give defendantsthe impression that they are not receiving adequate protection from theMember State of their domicile, where execution of the foreign judgment issought.

Further, to a large extent, the European regime asks defendants to defendproceedings in the courts of another Member State, which brings about greatinconvenience: primarily, the language problem. The core of the right to dueprocess comprises the obligation of the court to communicate with the par-ties in a language which they are able to understand. The Commission hasbeen neglecting the language issue for a long time, with the result that theRegulation on Service of Documents does not give adequate protection tothe defendant in this regard.70 Worse still, the Regulation creating a Euro-pean enforcement order does not ensure that the documents initiating the

68. For details Bruns, “Der anerkennungsrechtliche ordre public in Europa und den USA”,(1999) JZ, 278 at 281.

69. Schwartze, “Enforcement of Private Law. The Missing Link in the Process of EuropeanHarmonization”, (2000) European Rev. of Private Law, 135 et seq.

70. Lindacher, “Europäisches Zustellungsrecht”, 114 Zeitschrift für Zivilprozeß (2001),179 et seq.; Stadler, “Neues europäisches Zustellungsrecht”, (2001) IPRax, 514 et seq.

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proceedings served upon the defendant and the instructions given to the de-fendant, warning him of the severe consequences of not defending the actionbrought against him, are translated into his native language.71 In contrast tothe European approach, the “Principles of Transnational Civil Procedure”,72

adopted in spring 2004 by UNIDROIT and the American Law Institute, as-sume a different stance. According to Rule 5.2.,73 documents initiating theproceedings must be in a language of the forum, and also a language of theState of the individual’s habitual residence or legal entity’s principal place ofbusiness. The referendums held in 2005, in France as well as in the Nether-lands, both rejecting the Treaty establishing a Constitution for Europe,should be taken as a severe warning. European policy pursued in the last de-cade is en route to gambling away the credit of European citizens. A periodof consolidation in European Civil Procedure is, at present, imperative. Wehave already achieved considerable success in developing an area of free-dom, security and justice. All Member States should now be provided withthe opportunity to gain experience in applying the Regulations promulgatedrecently, before the Commission takes further steps to harmonize the ruleson cross border litigation or even national rules of civil procedure. It may beworth waiting to observe how national legislators accept the UNIDROIT /ALI “Priniciples of Transnational Civil Procedure”.

71. Rauscher, 11 RIW (2004), I (“Die erste Seite”), “Europäischer Vollstreckungstitel fürunbestrittene Forderungen”; Stadler “Kritische Anmerkungen zum Europäischen Voll-streckungstitel”, (2004) RIW, 801 et seq.; Stadler “Das Europäische Zivilprozessrecht – Wieviel Beschleunigung verträgt Europa? – Kritisches zur Verordnung über den EuropäischenVollstreckungstitel und ihrer Grundidee”, (2004) IPRax, 2 et seq.; Kohler, “Systemwechsel imeuropäischen Anerkennungsrecht” in Baur and Mansel (Eds.) Systemwechsel im europäischenKollisionsrecht (Beck, Munich, 2002), p. 146 et seq. at 159.

72. For details on the Principles cf. Stürner, “The Principles of Transnational Civil Proce-dure – An Introduction to their Basic Conceptions”, (2005) RabelsZ, 201 et seq.

73. For the language in which the proceedings should be conducted and for necessary trans-lations see Rule 6 of the Principles.

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