DIRECTORATE GENERAL FOR INTERNAL POLICIES

LEGAL AFFAIRS

Possibility and Terms for applying

the Brussels I Regulation (recast)

to extra-EU disputes

Theoretical Points of ReferenceEU disputes/ Non-EU disputesJurisdictionExclusive jurisdictionReflexive effectAccess to justice with a view to enforcement

Status quoEU cases:•Domicile of the defendant within the EU•Exclusive ground of jurisdiction within the EU•Choice of a EU forum= Regulation 1215/2012 applies

Non-EU cases:= National rules in force in MS (including international conventions) apply

Different Functions of the Heads of JurisdictionThe set of criteria of the Brussels regime aims to distribute jurisdiction amongst EU judges in EU cases (= territorial allocation within the EU)

Criteria for selecting cases over which to exercise jurisdiction must be set (= fix the boundaries of EU MS’ jurisdiction)

How to Define the External Boundaries of JurisdictionPositive criteria •Claim of jurisdictional power over a dispute

Hypothetical criteria •Withdrawal of jurisdictional power upon verification of foreign exclusive jurisdiction

Negative criteria •No S interest - lack of jurisdiction, regardless of the existence of foreign jurisdiction

Exclusive JurisdictionExclusive jurisdiction of the forum

= the forum claims exclusive control over all disputes where there is a national prevailing interest: property anchored in the national territory, companies created by national law, etc.

Foreign exclusive jurisdiction= the forum presumes (or even ask its judges to verify) that a foreign State claims exclusive control over all disputes where it has a national prevailing interest, and withdraws its jurisdictional power

The so-called “Reflexive Effect”What if :The judge of a Member State is deprived of jurisdictional power by the rules laid down by his own legal order but at the same timeHe is empowered with jurisdiction by a supranational source (Brussels regime)?

Examplea long-term rental contract resulting from an exchange of e-mails

between German TO Gmbh and Immo GmbH companies

Rented property is in the Fidji Islands

No version of the Brussels regime (since 1968) forces the companies to litigate in the Fidji Islands

ConsequencesIf the said property were in the Netherlands Antilles or on Reunion Island, on the contrary:

All versions of the Brussels regime (since 1968) require the German companies to bring suit before the Dutch/French judge of the situs of the property

Reasons for the DifferenceEU wishes to control the outcome of a dispute against a Gmbh (= art. 6 ECHR)

A decision from a MS is exportable in all EU MS (mutual trust); a decision from the Fidji islands (or USA or any other Non MS with the exception of Lugano S) = national rules on recognition and enforcement of each MS

Recommandations Adopt specific heads of jurisdiction for non-EU cases together with specific rules on recognition and enforcement of judgments coming from Third States

Negotiate bilateral/multilateral agreements on mutual recognition and enforcement of judgments with Third States, in particular with strategic partners

Presentation byLukas Heckendorn UrschelerIlaria Pretelli

Policy Department CResponsible Administrator: Rosa RAFFAELLI rosa.raffaelli@europarl.europa.eu