EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 14.12.2010 
SEC(2010) 1547 final 
COMMISSION STAFF WORKING PAPER 
IMPACT ASSESSMENT  
 
 
Accompanying document to the  
Proposal for a  
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters 
(Recast) 
  
{COM(2010) 748 final} 
{SEC(2010) 1548 final} 
EN 2   EN DISCLAIMER: This report commits only the Commission's services involved in its 
preparation and does not prejudge the final fo rm of any decision to be taken by the 
Commission 
 
TABLE OF CONTENTS 
COMMISSION STAFF WORKING PAPER IM PACT ASSESSMENT Accompanying 
document to the ................................................................................................................ .......... 1 
1. Background and Consultation of  Interested Parties..................................................... 6 
1.1. Background ................................................................................................................ .. 6 
1.2. Political mandate......................................................................................................... .6  
1.3. Organisation and timing............................................................................................... 6 1.4. Consultation and expertise ........................................................................................... 7 1.5. The revision of the Regulation..................................................................................... 8 1.6. Respect of Fundamental Rights ................................................................................... 9 1.6.1. Right to an effective reme dy, Article 47 subparagraph 1 .......................................... 10 
1.6.2. Right to a fair trial, Article 47 subparagraph 2 .......................................................... 10 1.6.3. Respect for private and family life (Article 7); Protection of persona l data (Article 8) 
Freedom of religion (Article 10)................................................................................ 10 
1.6.4. Freedom of expression and information (Article 11)................................................. 11 1.6.5. Freedom to conduct a business, Article 16 ................................................................ 11 1.6.6. Consumer Protection, Article 38................................................................................ 11 2. Problem Definition, Objectives and Assessment of Policy Options.......................... 11 2.1. THE FREE CIRCULATION OF JUDGMENTS ...................................................... 11 2.1.1. Problem definition for the free circulation of judgments........................................... 11 
2.1.1.1. The current problem................................................................................................... 11 
2.1.1.2. Who is affected?...................................................................................................... ... 12 
2.1.1.3. Scope of the problem ................................................................................................. 1 2 
2.1.1.4. Need for EU action (Subsidiarity).............................................................................. 13 2.1.2. Objectives.............................................................................................................. ..... 13 
2.1.3. Description of Policy Options.................................................................................... 13 2.1.4. Discarded Policy Options........................................................................................... 16 
EN 3   EN 2.1.5. Analysis of Impacts of Retained Policy Options ....................................................... 16 
2.1.5.1. Policy Option 1: Status Quo....................................................................................... 16 2.1.5.2. Policy Option 3: Maintain exequatur but alleviate some of the burden for the 
applicant ..................................................................................................................... 1 7 
2.1.5.3. Policy Option 4A: Abolition of exequa tur with appropriate safeguards.................... 18 
2.1.6. Comparing the Options and preferred Policy Option ................................................ 19 2.2. THE OPERATION OF TH E REGULATION IN THE INTERNATIONAL LEGAL 
ORDER ...................................................................................................................... 19 
2.2.1. Problem definition for the operation of the Regulation in the international legal order
............................................................................................................................... ..... 19 
2.2.1.1. The current problems ................................................................................................. 1 9 
2.2.1.2. Who is affected?...................................................................................................... ... 22 
2.2.1.3. Scope of the problem ................................................................................................. 2 2 
2.2.2. Need for EU action (Subsidiarity).............................................................................. 22 2.2.3. Description of Policy Options.................................................................................... 23 2.2.4. Discarded policy options............................................................................................ 24 2.2.5. Analysis of impact of retained policy options............................................................ 25 2.2.5.1. Policy Option 1: Status quo........................................................................................ 25 2.2.5.2. Policy Option 3A: Minimum harmonisat ion of the rules on jurisdiction .................. 25 
2.2.5.3. Policy Option 4A: Full harmonisation of the rules on jurisdiction............................ 26 
2.2.6. Comparing the options and preferred policy option .................................................. 27 
2.3. CHOICE OF COURT AGREEMENTS .................................................................... 27 2.3.1. Problem definition for the Choice of Court Agreements........................................... 27 2.3.1.1. The current problem................................................................................................... 27 
2.3.1.2. Who is affected?...................................................................................................... ... 29 
2.3.1.3. Scope of the problem ................................................................................................. 2 9 
2.3.2. Objectives.............................................................................................................. ..... 30 
2.3.3. Need for EU action (Subsidiarity).............................................................................. 30 2.3.4. Description of policy options..................................................................................... 30 2.3.5. Discarded policy options............................................................................................ 31 2.3.6. Analysis of impacts of retained options..................................................................... 32 2.3.6.1. Policy Option 1: Status quo........................................................................................ 32 
EN 4   EN 2.3.6.2. Policy Option 2: Exempt the chosen court from the obligation to stay proceedings. 32 
2.3.6.3. Policy Option 3: Give the chosen court pr iority to decide on its jurisdiction............ 33 
2.3.7. Comparing the options and preferred Policy Option ................................................. 34 
2.4. INTERFACE BETWEEN THE REGUL ATION AND ARBITRATION ................ 34 
2.4.1. Problem definition for the interface betw een the Regulation and Arbitration........... 34 
2.4.1.1. The current problems ................................................................................................. 3 4 
2.4.1.2. Who is affected?...................................................................................................... ... 35 
2.4.1.3. Scope of the problem ................................................................................................. 3 5 
2.4.2. Need for EU action (Subsidiarity).............................................................................. 36 2.4.3. Description of policy options..................................................................................... 36 2.4.4. Discarded Policy Options........................................................................................... 37 2.4.5. Analysis of impacts of retained Policy Options......................................................... 37 2.4.5.1. Policy Option 1: Status quo........................................................................................ 37 2.4.5.2. Policy Option 2: Extend the exclusio n of arbitration from the scope........................ 38 
2.4.5.3. Policy Option 3A: Enhance the effectiv eness of arbitration agreements................... 38 
2.4.6. Comparing options and pr eferred Policy Option ....................................................... 39 
3. Overall Evaluation of Impact of Preferred Policy Options........................................ 39 
3.1. Summary of the preferred policy options................................................................... 39 3.2. The preferred options' effectiveness to achieve the po licy objectives ....................... 40 
3.3. Economic impact........................................................................................................ 40 3.4. Impact on financial costs............................................................................................ 41 3.5. Impact on fundamental rights..................................................................................... 41 3.6. Social impact............................................................................................................. . 41 
3.7. Impact on third countries ........................................................................................... 41 4. Proportionality of EU Action..................................................................................... 42 5. Legal Basis................................................................................................................. 42 
6. Monitoring and evaluation ......................................................................................... 42 
EN 5   EN Annex I –Glossary of legal terms............................................................................................. 44  
Annex II – Summary of Views of Stakeholders  on the Main Aspects of the Revisin of 
Regulation Brussels I ................................................................................................. 48 
Annex III - Summary of Legal Studi es conducted by the Commission................................... 50 
Annex IV A - Number and Cost of Exequatur Proceedings .................................................... 52 Annex IV B – Example of itemised costs of exequatur ........................................................... 55 Annex V - Length of exequatur proceedings ........................................................................... 56 Annex VI – Effect of the Risk of Litigati on Abroad on Cross Border Trade and Possible 
Impact of Abolition of Exequatur .............................................................................. 59 
Annex VII – Summary of relevant  cases of the Court of Justi ce of the European Union ....... 61 
Annex VIII – National Protectiv e Jurisdictional Grounds in Consumer, employment and 
insurance contracts..................................................................................................... 62 
Annex IX - Main categories of specific national rules on jurisdiction excluded between 
Member States (listed in Annex I of the Brussels I regulation .................................. 64 
 
 Lead DG – DG JUSTICE Agenda Planning No 2009/JLS/013
 
EN 6   EN 1. BACKGROUND AND CONSULTATION OF INTERESTED PARTIES   
1.1. Background 
Council Regulation (EC) No 44/200 1 on jurisdiction and the reco gnition and enforcement of 
judgments in civil and commercial matters (known as "Brussels I")1 is the matrix of civil 
judicial cooperation in the Eu ropean Union. It creates a secu re legal framework for cross-
border legal proceedings in a broad range of ci vil disputes. The Regulation identifies the most 
appropriate jurisdiction*2 for solving a cross-border dispute and ensures the smooth 
recognition* and enforcement* of judgments issu ed in another Member State. The Regulation 
replaced the 1968 Brussels Convention which ha d been concluded between the then Member 
States and successively amended to reflect the Union's successive enlargements. It applies in 
all Member States, including Denmark, which ha s a special regime for judicial cooperation 
under the Treaty.  
Regulation Brussels I entered into force in March 2002. Eight y ears afterwards, the 
Commission has reviewed its operation in practice and considered necessary amendments to the instrument. While the Regulation is over all considered to work successfully, the 
consultation of stakeholders and different st udies conducted by the Commission revealed the 
need and potential for reform. Cross-border li tigation could be made speedier, cheaper and 
more efficient. Moreover, the possibilities of us ing abusive litigation tac tics could be reduced.  
1.2. Political mandate  
The European Council in its 2009 Stockholm Programme
3 called for the further development 
of the European area of justice by removing th e remaining restrictions on the exercise of 
rights of citizens and companies. More specifi cally, judgments in civil matters should be 
directly enforceable in another Member Stat e without any intermediate measures being 
required. Moreover, access to the courts by citizens and businesse s should be facilitated in 
order to enable them to enforce their rights throughout the Union. Improved access to justice should also equip economic operators with tools that enable them to benefit fully from the 
single market, especially at a time of economic crisis.  
1.3. Organisation and timing 
The Commission's Work Programme for 2010 include s the adoption of a proposal for revising 
Regulation 44/2001 as a strategic initiative,  for which a road map was prepared . 
The Commission commissioned an external study (hereinafter "the exte rnal study") to support 
the preparation of the Impact Assessment
4. The problems, objectiv es and policy options 
assessed in that study are based on the outcome  of the consultation and the expertise brought 
together by the Commission to prepare the presen t initiative (see point 1.4 below) as well as 
contributions from the contractor.  
                                                 
1 OJ L 12, 16.1.2001, p.1.  
2 Legal terms marked by an asterix "*" are explained in the glossary contained in Annex I. 
3 Adopted at the meeting of the European  Council of 10th and 11th December 2009. 
4 CSES Centre for Strategy & Evaluation Services, Data Collection and Impact Analysis – Certain 
Aspects of a Possible Revision of Council Regulation No 44/2001 on Jurisdiction and the Recognition 
and Enforcement of Judgments In Civil and Commercial Matters (Brussels I). 
EN 7   EN This report also incorporates comments submitted during two meetings of the inter-service 
steering group on 17 May and 3 September 2010 at which representatives of the Directorates- 
General Communication, Competition, Employme nt, Economic and Financial Affairs, 
Enterprise and Industry, Environment, Health and Consumers, Information Society, Internal 
Market and Services, Trade, Mobility and Trans port as well as the Secretariat General and the 
Legal Service of the Commission participated.  
This Impact Assessment was reviewed by the Impact Assessment Board (IAB). The 
recommendations for improvements have been accommodated in this revised version of the report. In particular, the following changes were made: the assessment of the benefits of the 
abolition of exequatur was revised; the views of  stakeholders and the necessary adjustments in 
the national legal systems were more fully presented; the justification of EU action on grounds of subsidiarity was expanded and the justification for the proposed degree of 
harmonisation of the rules on jurisdiction vis-à-vi s third country defendants was strengthened.  
1.4. Consultation and expertise 
On 21 April 2009 the Commission adopted a Green Paper on the review of Council 
Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters  (COM(2009) 175). A total of 130 responses have 
been received and are available on DG Justic e's website (for a summary of stakeholders' 
views see Annex II)
5.  
On the same date, the Commission adopted a report on the applicati on of Council Regulation 
(EC) No 44/200 (COM (2009)174). In preparatio n of that report, the Commission has taken 
into account several studies commissioned by it, the respective results of which are summarised in Annex III: 
• A 2007 study on the practic al application of the Regulatio n conducted by Prof. Burkhard 
Hess, Thomas Pfeiffer, and Pete r Schlosser (the "Hess report")
6  
• A 2007 study to evaluate the impact of a possible ratificati on, by the European 
Community, of the 2005 Hague Convention on Choice-of-Court Agreements conducted by 
GHK7 
• A 2006 study on subsidiary jurisdiction conducted by Prof. Arnaud Nuyts of the University 
of Brussels (the "Nuyts report")8 
• A 2004 study on enforcement of judicial decisi ons in the European Union, conducted by 
Prof. Burkhard Hess from the University of Heidelberg9 
Empirical data supporting the pr eparation of this impact a ssessment was collected by the 
external study (see point 1.3 above) which wa s finalised in September 2010. In addition, a 
survey of European companies on commercial di sputes and cross-border debt recovery was 
launched via the European Business Test Panel10. This impact assessment also relies on the 
                                                 
5 http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_public_en.htm  
6 http://ec.europa.eu/justice_home/doc_centr e/civil/studies/doc_civil_studies_en.htm  
7 http://ec.europa.eu/dgs/justice_home/evaluation/dg_coordination_evaluation_annexe_en.htm  
8 http://ec.europa.eu/justice_home/doc_centr e/civil/studies/doc_civil_studies_en.htm  
9 http://ec.europa.eu/civiljustice/publications/docs/enforcement_judicial_decisions_180204_en.pdf 
10 422 replies were received in total out of which 28 1 companies filled in the questionnaire completely. 
For the others, the topic was not relevant .  
EN 8   EN results of a study on Civil Justice Systems in Eu rope conducted in 2008 by the University of 
Oxford11.  
Two major conferences were organised by the Co mmission, one together with the Heidelberg 
University and the Journal of Private In ternational law in December 2009, another one 
together with the Spanish Presidency in March 2010. These conferences have constituted a large forum of exchange of view s with stakeholders on the many different issues raised in the 
revision. 
Finally, a meeting with national experts was he ld on 20 July 2010. Two meetings with experts 
on the matter of arbitration were held, one  on 1 July 2010 and one on [24] September 2010. 
1.5. The revision of the Regulation 
The revision of Regulation Brusse ls I pursues two gene ral objectives. First,  it should facilitate 
cross-border litigation and the free circulation of judgments a nd cut unnecessary red tape in 
line with the principle of mutual recognition. This will make it easier and less time-consuming 
for European citizens and companies to litigate in another Member State if that is required for 
solving their disputes. Second, th e revision should also help to  create the necessary legal 
environment for the European economy to rec over. In order to achieve this, the revised 
Regulation should further reduce the cost of litig ation and enhance legal certainty for cross-
border transactions.  
In order to achieve these objectives, the Commission envi sages to make four main 
amendments to the Regulation:  
• the abolition of remaining intermediary pro cedures for the recognition and enforcement of 
judgments, 
• a general improvement of access to justice for European citizens and companies in 
international disputes, 
• an enhancement of the effectiveness of choice of court agreements, and 
• an improvement of the relation between  court and arbitral proceedings.  
These four amendments have important impact s and have attracted most attention from 
stakeholders. They will therefore constitute th e subject matter of this Impact Assessment.
12 
                                                 
11 Study on Civil Justice Systems in Europe: Implications for Choice of Forum and Choice of Contract 
Law, 2008, available at http://www.mla.o rg.mk/webcontent/file_library/ATT04152.pdf 
12 The external study supporting the preparation of this impact assessment has focussed, among the points 
which will be dealt with in this impact assessment, on the gathering of further data on the operation of 
the Regulation's rule on consumer contract disputes . The Hess report revealed a certain degree of legal 
uncertainty in the application of the existing rule but had not recommended any changes of the rule. The results of the external study equally did not support a legislative intervention in the form of a change to 
the existing rule , particularly in the light of two ca ses before the European Court of Justice which will 
address concerns of legal certainty. Nevertheless,  not dealing with the matter at this stage, the 
Commission believes that concerns on the operation of the rule should be addressed. In this respect, 
several actions are being undertaken. The Commission's work programme for 2011 foresees a legislative initiative on the development of existing mechanisms for ADR; the Communication 
concerning a digital agenda for Europe (COM(2005) 245 final of 19.5.2010) provides for the 
development of an on-line dispute resolution mech anism for e-commerce; the abolition of exequatur 
EN 9   EN In addition, the revision of Regulation Brussels I will contain a number of other amendments, 
more of a technical nature, which involve smaller impacts and have not received the same degree of attention from stakehol ders. They include, in particul ar, an improvement of the rule 
which prevents parallel proceedings in Europe. As  set out in this report, this rule has mainly 
raised attention in connection with choice of co urt agreements (cf. infra). Some issues have 
been raised by a few stakeholde rs beyond choice of court. It st ems from the fact that the 
courts in some Member States may take a l ong time to decide on their jurisdiction and from 
the lack of information of the courts on pro ceedings pending in other Member States. These 
points do not require a subs tantial change of the rule itself, li ke in the case of choice of court 
agreements. The operation of the rule may be improved by a few small changes of a rather technical nature. In particular, it may be ensured that a decision on jurisdiction is taken swiftly 
by the courts (by imposing a deadline to decide  on the jurisdiction question) and that an 
appropriate communication between th e courts involved takes place.  
Another set of amendments will improve access to justice in speci fic situations. In particular, 
the revision will create a forum for claims of rights in rem  at the place where moveable assets 
are located and allow actions against multiple defendants in the employment area to be 
brought in a single forum under Article 6 (1).  
Finally, the revision will clar ify the conditions under which pr ovisional, including protective 
measures can circulate in the EU and improve the coordination of proc eedings, in particular 
proceedings on the merits on the one hand and pr oceedings aimed at obtaining provisional or 
protective relief on the other hand. This ma y be realised by creating a communication 
between the courts involved. 
1.6. Respect of Fundamental Rights 
With the entry into force of the Treaty of Lisbon on 1 December 2009, the Charter of 
Fundamental Rights of the European Union ('the Charter')
13 has become legally binding14. 
This means that the EU institutions as well as the Member States when implementing Union 
                                                                                                                                                         
envisaged in this impact assessment will improve cr oss-border litigation generally; the future revision 
of Regulation 861/2007 should consider a possible increase of the threshold for the use of the small 
claims procedure, as foreseen in the Monti Report on a new strategy for the internal market; the development of on-line judicial procedures will be further explored, in particular the electronic 
processing of the European order for payment and small claims procedures and electronic forms of 
mediation in the context of the roadmap on e-justice. The upcoming Communication on e-commerce will address the lack of development of e-commerce,  evaluate the impact of the E-commerce Directive 
and encourage the smooth functioning of the internal market for e-comm erce, particularly having regard 
to the efficiency of the above-mentioned measures. 
Another matter which has been considered during the public consultation concerns the operation of the 
Regulation's rules on industrial property disputes. The report and green paper described certain 
deficiencies of the existing rules (e.g. duplication of litigation in various Member States and risk of 
contradicting judgments despite the fact that the same underlying European patent is the subject matter 
of the litigation) and some possible ways to address these (in particular, e.g., the possibility to allow that 
litigation in different Member States are connected). The results of the public consultation show that 
most stakeholders prefer to await the outcome of the discussions on the creation of a unified patent 
litigation system as this is currently undertaken at Union and international level. The unified patent 
litigation system would permit to address patent  litigation as a whole, going beyond the mere 
jurisdictional questions. The Commission will monitor very closely the developments on this matter and 
re-consider its approach towards patent litigation unde r the Brussels Regulation, if the ongoing efforts 
to create a unified patent litigation system we re not to lead to the warranted result. 
13 OJ 2010 C 83/02, 389ss. 
14 Cf Article 6 TEU. 
EN 10   EN law have to respect the rights , observe the principles and pr omote the application of the 
Charter in accordance w ith their respective powers15. For this reason, all legislative proposals 
put forward by the Commission are subject to a systematic and rigorous monitoring to ensure 
their compliance with the Charter, which, as  set out in the Strategy for the effective 
implementation of the Charter by the European Union, must serve as compass for the Union's 
policies16. The rights and principles of the Charter which may be affected by the revision of 
Regulation Brussels I vary de pending on the specific amendment considered; the impact of 
the different aspects of the reform on these rights and principles is assessed in the following chapters. The content of the main provi sions concerned is set out below:  
1.6.1.  Right to an effective reme dy, Article 47 subparagraph 1 
According to Article 47 subparagraph 1, ever yone whose rights and freedoms guaranteed by 
the law of the Union are violated has the right to an effective remedy before a tribunal. This 
provision is crucial to ensure access to just ice in the European law context. The ECJ has 
emphasised that the exercise of the rights conferred by EU law mu st not be rende red ‘virtually 
impossible or excessively di fficult’ by procedural rules.
17 In line with the case law of the 
European Court of Human Rights, the right to an effective remedy also  includes the right of 
the creditor to recover his claim within a reasonable period of tim e and on the basis of 
efficient procedures18. 
1.6.2.  Right to a fair trial,  Article 47 subparagraph 2 
Article 47 subparagraph 2 stipulates that every one is entitled to a fair and public hearing 
within a reasonable time by an independent a nd impartial tribunal established by law and that 
everyone shall have the possibili ty of being advised, defended and represented. For disputes 
relating to civil law rights a nd obligations, this guarantee corre sponds to Article 6(1) of the 
ECHR. Inherent in this provision  is the right to defence which includes – in the area of civil 
law - the right to be heard and the right to make known its view s on the truth and relevance of 
the facts, objections and circumst ances put forward by the other party19.  
1.6.3.  Respect for private and family li fe (Article 7); Protection of  personal data (Article 8) 
Freedom of religion (Article 10) 
Article 7 guarantees that  everyone has the right to  respect for his privat e and family life, home 
and communications; article 10 pr ovides that everyone has the right to freedom of thought, 
conscience and religion. These rights correspond to Articles 8 and 11 of the ECHR. Article 8 
grants persons the right to the protect ion of personal data concerning them20.  
                                                 
15 Cf. Article 51 (1 ) of the Charter. 
16 Communication from the Commission "Strategy for th e effective implementation of the Charter of 
Fundamental Rights by the European Union" COM (2010) 573final. 
17 See e.g. ECJ, Case C-312/93, Pertbroeck v. Belgian State , [1995] ECR I-4599, para. 23. 
18 See e.g. European Cour t of Human Rights, 19.3 1997, Hornsby v. Greece, EC HR-Reports 1997 II 495. 
19 Commentary to the Charter of  Fundamental Rights, p. 368. 
20 This right is based on Article 286 of the TFEU and Directive 95/46/EC on the protection of individuals 
with regard to the processing of personal data as well as on Article 8 of the ECHR and on the Council 
of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic 
Processing of Personal Data. 
EN 11   EN 1.6.4.  Freedom of expression and information (Article 11) 
Article 11 guarantees that ev eryone has the right to freedom of expr ession and that the 
freedom and pluralism of the media shall be re spected. The exercise of these freedoms may be 
subject to conditions or restric tions in particular for the prot ection of the reputation or the 
rights of others21. 
1.6.5.  Freedom to conduct a business, Article 16 
Article 16 recognises the freedom to conduct a business in accordance with Union law and 
national laws and practices. This Article is based on Court of Justice case-law which has 
recognised freedom to exercise an economic  or commercial activity and freedom of 
contract22, and on Article 119(1) and (3) of the TF EU, which recognises free competition. 
Arguably, these rights encompass that the legal syst em gives effect to the will of the parties.  
1.6.6.  Consumer Protection, Article 38 
Article 38 of the Charter stipulates that Union policies shall ensure a high level of consumer 
protection. The princi ple set out in this Article is based on Article 169 of the TFEU. It is also 
reflected in Article 12 TFEU acco rding to which consumer protection requirements have to be 
taken into account in defining and implementi ng other Union policies and in Article 114 (3) 
TFEU which requires Commission proposals to take as a base a high level of consumer 
protection.  
2. PROBLEM DEFINITION , OBJECTIVES AND ASSESSMENT OF POLICY OPTIONS  
In the following section, the problems, objectiv es, policy options and their impact assessment 
will be dealt with in separate subsections for each of the four issues set out above. This approach seems appropriate because each of the four issues has a different problem definition, different policy objectives, different policy op tions and a different group of stakeholders 
affected. An overview of the stakeholders' vi ews on the four main aspects of the revision 
outlined above is provided in Annex II. Moreover , the four issues are not interconnected in 
the sense that the choice of a policy option on one issue would have an impact on the other 
issues. For each of the four i ssues, a preferred policy option will be identified. The impact 
assessment will conclude with an overall assessment of the impact of the preferred policy options.  
2.1. THE FREE CIRCULATION OF JUDGMENTS 
2.1.1.  Problem definition for the free circulation of judgments  
2.1.1.1.  The current problem 
Traditionally, a judgment given in one Member St ate does not automatica lly take effect in 
another Member State. In order to be enforced in another country, a cour t in that country first 
has to validate the decision and declare it enforc eable. This is done in a special intermediate 
                                                
 
21 Explanatory Memorandum to the Charter of Fundamental Rights, CONVENT 49. 
22 Explanatory memorandum to the Charter of Fundamental Rights, CONVENT 49 of 11 October 2000., 
see also judgment in case 151/78 Sukkerfabriken Nykobing (1979), para. 19, and case C-240/97 Spain 
v. Commission (1999), para 99. 
EN 12   EN court procedure, known as "exequatur"*, which takes place after the judgment has been 
obtained and before concrete measures of enforcement can be taken.  
Over the past forty years, obtai ning "exequatur" with in the European Union has successively 
been facilitated. The 1968 Bru ssels Convention harmonised the exequatur procedure in the 
then Member States; the 2001 Brussels I Regula tion significantly accelerated the process of 
exequatur.  
Despite these efforts, the intermediate exequatur procedure still makes cross-border litigation 
more cumbersome, time-consuming and costly th an national litigation. Parties have to bear 
court fees for processing the a pplication. Often a lawyer is hi red to prepare the documentation 
and handle the procedure abroad. Finally, costs of translation23 and service of documents add 
to the bill. The delay and costs involved in obt aining the recognition and enforcement of cross 
border judgments discourage peopl e from making full use of the possibilities offered to them 
in the internal market by doing business and shopping in other EU countries.  
2.1.1.2.  Who is affected? 
The need to go through exequatur proceedings aff ects all citizens and companies (whether EU 
or foreign) which need to have a judgment given by the courts of one Member State recognized and enforced in another Member State.  
2.1.1.3.  Scope of the problem  
The problem concerns in princi ple every judgment in civil and commercial matters which is 
given by the courts of one Memb er State and which needs to be enforced in another Member 
State. Exceptions apply to certain types of judgments (on claims up to € 2,000, uncontested 
claims and claims for family maintenance) for which exequatur has already been abolished by recent EU legislation (see Section 2.1.2 below) . The number of applications for recognition 
and enforcement under Regulation Brussels  I has been estimated at roughly 10,000
24 per year 
in the entire European Union.  
On an EU average, in 93% of the cases, the intermediate step is a pure formality as there are 
no reasons to refuse recognition and enforcement of the foreign judgment25. Between 1 and 
5% of the decisions to grant exequatur are appealed26 but these appeals are rarely successful. 
Only in a handful of cases does the procedure actually lead to a refusal of recognition and 
enforcement. 
The time for obtaining exequatur varies between th e Member States; it can take from a couple 
of days up to several months, depending on the ju risdiction and the complexity of the case. 
This does not take into account the time require d for collecting the documents necessary for 
                                                 
23 Costs of translations have been calculated on a basis of a 10 page document x €30 per page = €300. The 
proposal aims at reducing these costs by introducing a standard form which will contain only an extract 
of the judgment for purposes of enforcement; only this form will need to be translated.  
24 CSES report, p. 35.  
25 CSES report, p. 35  
26 Cf Hess report p. 21. The difference between 93% and this figure can be explained by the fact that a 
number of applications is refused at first instance because they do not  comply with formal requirements 
or fall outside the scope of the Regulation. 
EN 13   EN the application and translations. If an appeal is  made, this delay considerably increases: appeal 
proceedings can take up to two years in some Member States27.  
The costs for obtaining exequatur equally vary  throughout the EU. For a straightforward case 
of exequatur, identifiable costs (which include  court and lawyers' fees , costs for service of 
documents and translations) range from € 1,100  in Bulgaria to almost €4,000 in the United 
Kingdom. On an EU-27 average, € 2,200 has to be paid for pr ocessing the application. This 
amount can increase exponentially in a more complex or contested case where legal costs 
amount in the EU-27 average to about € 12,70028. On the assumption that 25% of all cases are 
complex, the overall cost of exequatur proceed ings in the EU amounts to almost€48 million 
per year (for details on the number, costs and delays of exequatur proceedings see Annexes 
IV and V).  
The complexities of cross-border litigation can  deter companies from doing business cross-
border. Currently, only 25% of European SMEs  are engaged in cross-border trade. The 
possibility of having to pursue li tigation abroad is a major con cern to business and one of the 
main reasons for not getting involved in cross-border trade29.  
2.1.1.4.  Need for EU action (Subsidiarity) 
The current procedure for the recognition a nd enforcement of judgments in civil and 
commercial matters has been established by Re gulation Brussels I, hence by EU law. Any 
reform of this procedure require s inevitably the intervention of the European legislator and 
therefore, by definition cannot be ach ieved by the Member States alone.  
2.1.2.  Objectives 
The specific objective  of this part of the Proposal is to achieve a genuine free circulation of 
judgments in all civil and commercial matters. The operational objective  is to remove the 
remaining barriers for such a free circulation of judgments. It should be noted in this context 
that over the past six years the European le gislator has already abolished the exequatur 
procedure for certain types of claims, namely those on small (up to € 2,000) claims30, 
uncontested claims31 and – most recently - on claims for family maintenance32. The European 
Council in its Stockholm Programme emphasised that  the process of eliminating intermediate 
procedures (exequatur) in the ar ea of civil law has to conti nue and that the abolition of 
exequatur has to be accompan ied by appropriate safeguards. 
2.1.3.  Description of Policy Options 
Policy Option 1 : Status quo 
Under this policy option, the existing procedur e for recognition and enforcement of judgments 
in civil and commercial matters would continue to exist for judgments concerning an amount 
                                                 
27 For details see Annex V. 
28 For a detailed account of the costs of exequa tur in the Member States see Annex IV A. 
29 CSES study, p. 58. 
30 Regulation 861/2007 creating a European Small Claims Procedure. 
31 Regulation 805/2004 establishing a European enforcement order for uncontested claims and Regulation 
1896/2006 creating a European Order for Payment Procedure. 
32 Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and 
cooperation in matters relating to maintenance obligations. 
EN 14   EN exceeding 2,000 €. The defendant* has the possibility to c ontest the deci sion granting 
recognition and enforcement in the Member St ate of enforcement in a special procedure 
established by the Regulation and on  the grounds enumerated therein33. 
Policy Option 2 : Maintain exequatur and reduce the grounds for refusing recognition and 
enforcement  
Under this policy option, the free circulation of judgments would not be realised entirely but 
would be facilitated. The existing exequatur pr ocedure would be maintained, but the number 
of grounds which today entitle a Member State to  refuse the recognition and enforcement of a 
foreign judgment would be reduced. Currently, th e defendant can raise a number of objections 
against the recognition of a fore ign judgment. If Option 2 were  implemented, some of these 
objections would no longer be available. In par ticular, the defendant would no longer be able 
to contest that the court in the Member State of  origin did not have jurisdiction to hear the 
case.  
Policy Option 3:  Maintain exequatur but alleviate so me of the burden for the applicant  
Under this policy option, which could be combined with Op tion 2, the existing exequatur 
procedure would be maintained but some of the problems which the current procedure poses 
for citizens and companies would be addresse d. Two such problems are the costs of the 
exequatur procedure and the need for claimants to go before the c ourts of the Member State of 
enforcement in order to obtain the declaration of enforceability. The burden of the exequatur 
procedure on the claimant could be  alleviated by requiring the Memb er States to bear he costs 
of the procedure. Member States would have to  provide legal aid to a claimant seeking to 
enforce his judgment abroad and/or establish a system of administra tive assistance by which 
state authorities would help the claimant in preparing the application which would enable him 
to present it without the need of a lawyer. Moreover, a system of co-operation between courts 
would be established which would allow EU cl aimants to introduce the application in their 
own Member State, after which the courts of th e Member State of origin would transmit it to 
the Member State where enforcement is sought.  
Policy Option 4 : Abolish the exequatur procedure, ei ther while introducing the necessary 
safeguards for the protection of the right to a fa ir trial (Option 4A) or without establishing any 
safeguards (Option 4B). 
Under this policy option, the free  circulation of judgments woul d be realised by removing 
entirely the existing procedure for recogniti on and enforcement of judgments. This option 
could be realised wit hout any safeguards (Option 4B). Unde r this sub-option, full mutual trust 
is given to judgments in other Member States; no distinction at all is made between foreign 
and national judgments. Alternatively, it could be analysed which existing grounds for the 
refusal of foreign judgments may justifiably l ead to a refusal of recognition and enforcement 
of a foreign judgment; any such grounds could be  replaced by alternative safeguards (Option 
4A). Three main safeguards could be consider ed when abolishing the exequatur procedure. A 
                                                 
33 According to Articles 34 and 35 of the Regulation, there are essentially five grounds for refusing 
recognition of a foreign judgment: (a) if recognition were  manifestly contrary to the public policy of the 
state of enforcement, (b) if the defendant did not have proper noti ce of the proceedings, (c) if the 
judgment is irreconcilable with another judgment between the same parties; (d) if it does not respect 
certain of the Regulation's jurisdiction rules (for consumer and insurance contracts and exclusive 
jurisdiction). 
EN 15   EN first safeguard, which already figures in exis ting Union instruments which have abolished 
exequatur34, is the creation of an extraordinary remedy in the Member State of origin for the 
defendant who was not informed  about the proceedings agains t him/her in that State. A 
second safeguard, which does not yet exist in any Union instrument, could consist in the creation of a second type of extraordinary reme dy in the Member State of enforcement which 
would permit to remedy any other procedural defects which may have arisen during the 
proceedings before the court of origin and whic h may have infringed the defendant's rights of 
defence as guaranteed in Ar ticle 47 of the EU Charter
35. A third safeguard would enable the 
defendant to stop the enforcement of the judgm ent in case it is  irreconcilable with another 
judgment which has been issued in the Member  State of enforcement or – provided that 
certain conditions are fulfilled - in another country. These safeguards largely reflect the 
current grounds under which the recognition and enforcement of a foreign judgment can be 
refused today in the context of the exequatu r procedure. The only exceptions relate to 
substantive public policy*36 and to the respect, by the court of origin, of certain jurisdiction 
rules. The former ground of refusal no longer seems necessary because to the knowledge of 
the Commission there has not been a single case si nce the entry into force of the Brussels 
Convention where recognition and enforcement of  a judgment has been refused for this 
reason. The latter ground of refusal does no longer seem adequate in light of the principle of 
mutual trust between Member States.  
During the public consulta tion, representatives of the media ha ve expressed conc erns that the 
abolition of exequatur in defamation cases co uld have a negative imp act on the freedom of 
expression. Defamation cases are cases in which an individual claims that  rights relating to his 
personality or privacy have been  violated by the media. Problems arise from the fact that in 
some Member States, notably in the United Kingdom, victims of defamation may obtain particularly high damages which can have seri ous impact for publishers and journalists. In 
certain Member States, e.g. France, defamation is  even a criminal offence. Defamation cases 
are different from other civi l and commercial cases because  any court ruling allowing or 
prohibiting a certain publication has impact on fundamental rights, such as human dignity, 
respect for private and family life, protecti on of personal data, freedom of expression and 
information. These impacts render defamation cases  particularly sensitiv e. The law in this 
area is not harmonised on the European level.  Member States' approaches to ensure 
compliance with all the fundamental rights outlined above diverge very widely.
37 These 
differences were recently illustrated by the cont roversy surrounding the publication of Prophet 
Mohammed cartoons. After a Da nish court rejected a defa mation case brought against the 
Danish newspaper, claimants who felt harmed by the publication contem plated bringing libel 
proceedings in Britain. In the light of the dive rgences outlined above, it seems preferable to 
retain the exequatur procedure fo r decisions in these types of cases in order to allow Member 
States to maintain all existing cont rols on foreign defamation judgments. 
                                                 
34 Regulation 805/2004 establishing a European enforcement order for uncontested claims, Regulation 
1896/2006 creating a European Order for Payment Procedure, Regulation 861/2007 creating a European 
Small Claims Procedure, and Regulation 4/2009 on jurisdiction, applicable law, recognition and 
enforcement of decisions and cooperation in matters relating to maintenance obligations. 
35 see, in particular, Case C-7/98 ( Krombach ) and Case C-394/07 ( Gambazzi).  
36 Where there the substance of the foreign judgment is at variance to  an unacceptable degree with the 
legal order of the Member State of enforcement b ecause it infringes a fundam ental principle of that 
state.  
37 Cf Final report of the comparative study on the s ituation in the 27 Member States as regards the law 
applicable to non-contractual obligations arising oout of violations of privacy and rights relating to 
personality, carried out by Mainstrat for the Commission, JLS/2007/C4/028, available at 
http://ec.europa.eu/justice/doc_centre/civil/studies/doc_civil_studies_en.htm. 
EN 16   EN Concerns relating to the abolition of exequatur have also been raised with respect to collective 
redress, i.e. proceedings brought by a group of claimants, a representative entity or a body 
acting in the public interest and which concern the compensation of harm caused by unlawful 
business practices to a multitude of claimants. In this area, the procedural law of Member States diverges widely; in some countries, le gislation on collective redress has only been 
introduced very recently, thereby not allowing to fully assess the practical  application of these 
rules and their economic effect on foreign companie s. It seems therefore preferable to retain 
the exequatur procedure for judgm ents in collective redress proceedings for the time being to 
maintain all existing controls on foreign judgments in such proceedings.  
2.1.4.  Discarded Policy Options 
Two policy options, option 2 and option 4B can be discarded because they do not constitute 
realistic policy alternatives.  
Option 2 would not bring about a palpable improve ment of the current s ituation: as set out 
above, an appeal against the decision granting exequatur is only brought in 1% – 5% of the 
cases. A reduction of the grounds of refusal w ould therefore only improve the situation for a 
very limited part of the applications while leaving the vast majority of cases completely unaffected. Therefore, it will not be considered separately but jointly with policy option 3.  
Option 4B, the abolition of exe quatur without establishing ade quate safeguards, has equally 
been discarded because it would have fundament al rights implication in the exceptional case 
where a judgment to be reco gnised in another Member St ate does not comply with 
fundamental rights, such as the right to a fair trial. This option would entirely rely on national 
law to ensure compliance with the right to a fa ir trial or the rights of defence without any 
safeguards for situations where this protection at national level failed. Even if such situations are exceptional, the serious adverse impact on fundamental rights in such a case justifies 
discarding this option. In addition, the majority of stakeholders which replied to the public 
consultation on the Green Paper requested that  the abolition be accompanied by adequate 
safeguards. Option 4B would also  go plainly against the conclu sions of the European Council 
in December 2009 which emphasised the need of appropriate safeguards for the abolition of exequatur. Furthermore, this option would entirely rely on national law to ensure compliance 
with Article 47 of the EU Charter.  
2.1.5.  Analysis of Impacts of Retained Policy Options 
2.1.5.1.  Policy Option 1: Status Quo 
(a) Effectiveness to achieve objectives : Maintaining the status quo would have no effect on 
the problem identified and would not contribut e to achieving the objectives outlined above. 
(b) Key impacts  (i) Fundamental rights : The current exequatur procedure adequately 
safeguards fundamental rights as defined in the EU  Charter. In particular, the right to a fair 
trial is guaranteed by the possibi lity to refuse recognition and enforcement of a judgment in 
the event of a violation of public policy or a la ck of proper notice of the proceedings . (ii) 
Economic impact
38: As to the effect of the status quo on the European economy, while the 
total number of businesses and consumers involve d in cross-border litigation and affected by 
the procedure is still relatively small (only about 10,000 cases per year for the entire EU), the 
                                                 
38 The term "economic impact" refers to the cost s or savings for companies and citizens which the 
respective policy option will bring about. 
EN 17   EN number of exequatur cases  is generally increasing39. Moreover, for those who are faced with 
cross-border litigation,  the costs and delays in having their judgments  enforced across EU 
borders constitute a significant inconvenience; th e overall cost of exequatur proceedings in 
the EU amounts to almost €48 Mio a year (see  section 2.1.1.3). More importantly, the costs 
and complications of cross-border litigation unde r the current legal framework are putting-off 
businesses and consumers from getting involve d in cross-border transactions, thereby 
preventing them from benefitting from the EU's internal market. The EBTP survey has shown 
that roughly one third of the companies that cu rrently do not sell goods or  provide services in 
other Member States have not developed or stopped cro ss-border business because of 
potential or actual cross-border disputes and problems with cross-border debt-recovery40. 
Since SMEs have less resources and infrastructure  to deal with cross-border legal proceedings 
than larger companies, they are likely to be particularly affected by the shortcomings of the current situation. (iv) Social impact: The status quo also creates problems for employees 
carrying out work in a Member State other than  the one where their employer is domiciled if 
they have to enforce a judgment against thei r employer, e.g. for outstanding wages, abroad.  
2.1.5.2.  Policy Option 3: Maintain exequatur but alleviate some of the burden for the 
applicant 
(a) Effectiveness to achieve objectives : Option 3 would go some way towards addressing the 
shortcomings associated with th e exequatur procedure while falli ng short of a total removal of 
the existing barriers to the free ci rculation of judgments. It woul d not reduce the costs of the 
existing exequatur procedure but shift them from  the parties to the Member States. Delays 
inherent in the current system would remain. (b) Key impacts (i)  Financial costs
41: Option 3 
would leave the established procedures at natio nal level largely intact , thereby not requiring 
Member States to introduce new judicial pro cedures. However, Member States would incur 
significant financial costs because they would ha ve to assume the costs currently associated 
with the exequatur procedure: they would have to renounce to current so urces of income (e.g. 
by abolishing court fees), to compensate th e applicant for costs in curred (e.g. by granting 
legal aid) and/or to provide certain services to the applicant (e.g. by assisting the applicant 
with the introduction of his request which w ould enable him to go through the procedure 
without having to hire a lawyer). It is highly doubtful that Member States would be prepared 
to assume this financial burden in times of ec onomic crisis and tight b udgetary control. (ii) 
Fundamental Rights : The protection of the rights of defence under the current system 
(outlined above, section 2.1.4.1) woul d essentially remain untouched. (iii) Economic impact : 
Under Option 3, the current costs of the exequa tur procedure would not be diminished; the 
financial burden would merely be shifted from companies or citizens to the state budgets of 
the Member States. The envisage d reduction of the grounds of refu sal and the use of standard 
forms are not likely to significantly reduce the legal costs associated with the exequatur 
procedure. The elimination of th e main obstacles for the applicant would come at a cost for 
Member States (see above, point (i)). Alt hough the financial burden would no longer be on 
                                                 
39 CSES study, p. 40. While there are no reliable figure s to evidence this trend due to poor statistics in 
Member States, discussions with various ministries as part of our research generally point to an upward 
trend in the number of applications and this is pr obably the most reliable guide to the situation across 
the EU as a whole .  
40 2010 EBTP survey on commercial disputes and cross-border debt recovery: Out of 44.5% of companies 
not involved in cross-border commercial activities; 13.1% replied that this was due to potential or actual cross-border disputes or problems with cross-border debt recovery.  
41 The term "financial costs" refers to the cost s of implementing the respective policy option in the 
Member States. 
EN 18   EN the parties but on the general taxpayer, the overall economic impact would remain the same. 
Moreover, it is far from certain that Member States would be prepared to assume these costs 
at a time of economic crisis. Finally, while th e companies already engaged in cross-border 
transactions would benefit fr om the reduction in costs a nd complications, it is doubtful 
whether Option 3 would have sufficient symbo lic effect to encourage those businesses, 
including SMEs , which currently do not tr ade across borders, to do so. (iv) Social impact: 
Option 3 would improve the situation for employ ees who are carrying out work in a Member 
State other than the one where their employer is  domiciled and who woul d have to enforce a 
judgment against their employer, e.g.  for outstanding wages, abroad.  
2.1.5.3.  Policy Option 4A: Abolition of exe quatur with appropriate safeguards 
(a) Effectiveness : This option would have maximum effect iveness: it would fully realize the 
objective of creating a genuine free circulation of judgments  in the European Union. (b) Key 
impacts : (i) Economic impact : The main advantage of Option 4A is that it would fully 
eliminate the costs and delays associated with  the current exequatur procedure for the vast 
majority (over 90% of cases) in which the en forceability of the foreign judgment is not 
contested by the defendant. Currently, the cost s of exequatur proceedings amount to almost 
€48 million per year (see section 2.1.1.3). If exe quatur were abolished, claimants would be 
able to save a signifi cant part of this amount. In straight forward cases, the envisaged reform 
would almost completely do away with the co sts of the current intermediate proceedings. 
Lawyer and court fees would no longer be in curred. Translation costs would be minimised 
through the use of a standard form; the competent authority  in the Member State of 
enforcement would only be entitled  to request a translation of an  extract of the judgment (max 
one page). In complex cases, claimants would con tinue to incur legal and translation costs if 
the enforcement is contested by the defendant in  a special review procedure. However, the 
introduction of standard forms should reduce transl ation costs and lawyers' fees also in these 
circumstances. More importantly, the effect of a bolishing exequatur is lik ely to persuade more 
businesses and consumers to engage in cross-bo rder trade than under ei ther Options 1 or 3. 
The increase in businesses' and consumers' confid ence in cross-border dealings is likely to be 
particularly beneficial for European SMEs. At present, only 25% of Europe's 20 million 
SMEs are engaged in cross-border trade or some other form of cross-border collaboration. 
This means that 15 million SMEs could potenti ally expand their business to other Member 
States42. A survey has shown that 39% of these SM Es would be a lot more inclined to get 
involved in cross-border tr ansactions if the exequatur procedure were abolished43. Even if 
only a quarter of the SMEs inclined to expa nd their business acros s borders under these 
conditions actually does, this would bring anot her 1,4 Million SMEs into  the internal market, 
thereby increasing economic growth. (for detail s see Annex VI). The retention of exequatur 
for defamation cases is unlikely to reduce the positive economic impact of Option 4A because the number of these cases is quite limited and th e sector affected is quite distinct from 
"ordinary" cross-border business activities. (ii) Fundamental rights : As outlined in Section 
2.1.3 above, the abolition of exequatur woul d be accompanied by procedural safeguards 
which would ensure that a judgmen t in breach of the right to a fair trial and the right of 
defence cannot be recognised and enforced. Th is option would therefore comply with the 
Charter, in particular its Article 47. The defe ndant would have three main remedies at his 
disposal by which he could preven t – in certain circumstances – that a foreign judgment takes 
                                                
 
42 CSES study p. 60; EIM (Panteia), Internationalisation of European SMEs, Final Report, p. 5, study for 
DG enterprise and Industry, 2010. 
43 CSES study, p. 59 based on a survey of key stakeholders. 
EN 19   EN effect in a Member State. Since the grounds which could be invoked against the enforcement 
of the foreign judgment largely correspond to those which can be  invoked today in the context 
of the exequatur procedure, the level of judici al protection for cross-border proceedings would 
not be lowered compared to the status quo. In  addition, exequatur procedure for decision on 
defamation would be maintained in order to al low Member States to exercise all existing 
controls on foreign defamation judgments and to avoid impacts as regards respect for private 
and family life (Article 7); Protection of pers onal data (Article 8) and Freedom of expression 
and information (Article 11). (iii) Financial costs : The introduction of new procedures in 
Member States' national legal systems with wh ich legal professionals, notably enforcement 
agents, would need to be familiarized would trigger certain financial costs for Member States. However, if national safeguard procedures were  modelled on the proced ures adopted for the 
European Enforcement Order and other European instruments which have abolished exequatur for certain types of claims, the cost s of implementing Option 4A would be limited. 
Moreover, the proposal will contain a standard  form which aims at  facilitating direct 
enforcement. It should also be noted that co sts for implementing the reform are limited in 
time whereas the economic benefit outlined above would be sustained on a permanent basis. (iv) Social impact: Option 4A would be particularly be neficial for weaker parties. For 
example, it would improve the situation for em ployees having to enforce a judgment against 
their employer in another Member State.  
2.1.6.  Comparing the Options and preferred Policy Option 
A comparison of the ratings of the three policy op tions retained to address the problem of the 
free circulation of judgments shows that  the preferred option is Option 4A.  
Objectives/impact Policy Option 1 
– Status quo Policy Option 3 
– alleviating burdens for applicant Policy Option 
4A – abolition of exequatur 
Removal of remaining barriers to the free circulation of judgments 0 + ++ 
Economic impact 0 +  + 
Financial costs 0 – – 
Fundamental rights 0 0 0 
 
2.2. THE OPERATION OF THE REGULA TION IN THE INTERNATIONAL 
LEGAL ORDER  
2.2.1.  Problem definition for the ope ration of the Regulation in  the international legal 
order  
2.2.1.1.  The current problems 
Problem 1 : With some exceptions, the jurisdiction ru les of Regulation Brussels I only apply 
when the defendant is domiciled in the EU. If the defendant is domiciled in a third State, the 
EN 20   EN Regulation refers to national law (the so-calle d "residual jurisdiction" *). In other words, 
Union law regulates only part of the international jurisdiction* of the Member States' courts, leaving the remaining part to national law.  
This limitation in the scope of the Regulation can  be explained by its historic origins as an 
international convention. When  concluding the Brussels Conve ntion in 1968, Member States 
primarily aimed at protecting defendants domic iled in their respective territories from being 
sued in the courts of other Member State on the basis of grounds of jurisdiction which do not 
guarantee a sufficient connection with the disput e and the application of which is usually 
limited in bilateral or multi lateral conventions on judici al cooperation (so-called " exorbitant  
grounds of jurisdiction"
*)44. Under this approach, there was no reason to take into account 
non-EU defendants; their treatment was therefore left to national law.  
For the EU, the Convention and its successor, the Regulation, define certain grounds of 
jurisdiction as exorbitant45, by excluding their application between Member States. For 
instance, the provision in the French code of ci vil procedure according to which French courts 
always have jurisdiction for an action brought by or against a French citizen has been defined 
as exorbitant by the Regulation. However when a defendant is domiciled in a third State, 
those exorbitant grounds of juri sdiction are today applicable.  
National rules on jurisdiction fo r third country defendants va ry widely between Member 
States (for an overvie w of national legislation on jurisd iction concerning weaker party 
disputes see Annex VIII, for national exorbitant  grounds of jurisdiction see Annex IX). This 
divergence leads to the situation where European citizens and companies have unequal access to justice in cases where the defendant is domiciled outside the European Union. Moreover, 
the fact that rules on in ternational jurisdiction are at presen t laid down in tw o separate bodies 
of law, one which applies where the defendant is located in the European Union, the other 
where the defendant is located outside the EU, adds to the complexity of cross-border procedures. 
Problem 1A
: This situation creates unequal conditions  for companies doing business in the 
internal market and prevents th e creation of the necessary leve l playing field. Companies from 
Member States which handle access to courts re strictively in disputes with third country 
defendants will usually incur higher business risk  and higher legal costs than companies based 
in Member States which grant generous access to their courts in these circumstances. Not 
being able to litigate in a close jurisdiction has a nega tive economic impact on companies, 
albeit one that is difficult to quantify: claimant s are not familiar with the foreign legal system, 
lack access to their known and trusted lawyers and have the inconvenience of travelling and 
wasted management time.  
Moreover, companies might not always get a fair  trial and an adequate  protection of their 
rights before the courts of a third State. Such  problems can notably arise in countries where 
the judiciary cannot be considered to be  independent or is riven by corruption. 
Example46: An Italian company has engaged in a joint venture agreement in Saudi Arabia. A 
dispute arises which cannot be settled amicabl y. The Italian company wants to introduce court 
proceedings against the Saudi Arabian joint vent ure partner. Since its opponent has assets in 
                                                 
44 Cf Nuyts report, p. 59 with further references.  
45 Cf Annex I of Regulation Brussels I. 
46 This is a real life example reported by an Italian academic.  
EN 21   EN the EU, the company tries to go to court in Eu rope. However, the rule s of the Regulation do 
not apply and under Italian law, no Italian court is competent to hear the case. The company is 
therefore forced to litigate in Saudi Arabia wh ere – due to the lack of independence of the 
Saudi Arabian courts – it doe s not get a fair trial.  
A French company in the same s ituation would have been able to  bring the lawsuit in France 
and – assuming the court would uphold the claim – be able to enforce the French judgment 
against the assets of the joint vent ure partner located within the EU.  
Problem 1B : The current situation is also problematic  when weaker parties (e.g. consumers, 
employees or insured) are involved in a disput e with defendants outside  the European Union. 
Some Member States' jurisdictions (e.g. Aust ria, Czech Republic, England) do not give a 
weaker party the possibility to litigate at home in these circumstances47. The obligation to sue 
a third country defendant abroad creates an additional burden for the weaker party and is 
likely to deprive him of the protection gran ted by mandatory European legislation. Such 
legislation protects, in particul ar, the rights of consumers, co mmercial agents and victims of 
defective products. If national la w does not grant the weaker pa rty access to the courts in 
Europe, he may have no possibil ity to avail himself of the protection granted to him by Union 
law. This problem is illustrated in the following example:  
Example48: While on holiday in Antalya (Turkey), an English consumer enters into a 
time share agreement with a Turkish compa ny. Under the terms of  the contract, the 
Englishman acquires the right to use an apar tment situated on the Turkish Riviera for 
a specific calendar week of each year. As required by the terms, he pays the first 
instalment and a deposit when signing the co ntract. A week later, when reconsidering 
his financial situation after re turning home, he realizes th at he cannot really afford 
the deal. He decides to w ithdraw from the contract a nd demands reimbursement of 
the money paid. Under the Time Share Directive49, a consumer is entitled to 
withdraw from a timeshare c ontract within the period of  14 days. The Turkish seller 
refuses to reimburse the price. The Englis h consumer wants to assert his rights under 
the Time Share Directive in court. Howeve r, under English law, no court in England 
has jurisdiction to hear the case. Since a Turkish court would not be bound by the 
Time Share Directive, the lack of jurisd iction of the English courts effectively 
deprives the consumer of the protec tion which EU law grants to him.  
Again, a French consumer would have been  able to sue "at home" and the French 
court would have applied the Time Share Directive. Even if he was not able to 
enforce the French judgment in Turkey, th e consumer would be able to obtain the 
cancellation of the contract; moreover, wher e assets of the defe ndant are located in 
the EU, the judgment can be enforced against those assets.  
 
Problem 2: At present, Regulation Brussels I only  governs the recognition and enforcement of 
judgments given by courts of the Member States . The recognition and enforcement of 
                                                 
47 For details see Annex VIII. 
48 Scenario inspired by ECJ case C 73/04 Brigitte and Markus Klein v. Rhodos Management Ltd . A 
summary of relevant judgments of the ECJ may be found in Annex VII. 
49 Directive 2008/122/EC of the European Parliament and of the Council on the protection of consumers 
in respect of certain aspects of timeshare, long-t erm holiday product, resale and exchange contracts. 
EN 22   EN judgments rendered by courts outside the Euro pean Union is governed by national law. The 
absence of common rules in the EU on the effect of third State judgments leads to a situation 
where such judgments may enter the EU in some Member States and not in others. Some Member States are very open to recognise and enforce third State judgments, others are very 
strict, yet others do not recognise  and enforce third State judgme nts at all except in the event 
of a bilateral convention with the third State c oncerned. This creates une qual protection of EU 
citizens and companies against third State judgmen ts, in particular when  the third State court 
has taken jurisdiction on the ba sis of exorbitant grounds of ju risdiction (see above, Problem 1) 
or on the basis of grounds which violate the excl usive jurisdiction of Memb er States' courts. It 
may also lead to market distortions.  
2.2.1.2.  Who is affected? 
Those affected are European citizens and co mpanies involved in di sputes with parties 
domiciled in third States.  
2.2.1.3.  Scope of the problem  
The extent of the problem resulting from the existence of residual rules on jurisdiction is 
difficult to quantify. With the exception of Austri a, Member States do not maintain statistics 
on the number of disputes with the parties do miciled in third States. Figures are, however, 
available on the extent of the divergences in the access to EU courts for citizens and 
companies. For example, six Member States ca n take jurisdiction to hear a case involving a 
defendant from outside the EU if he was present on their territory at the time of service of the 
claim; 14 (partially identical) Member States cons ider the presence of the defendant's assets to 
suffice; three consider a cause of action or activities on their territory to suffice. On the other hand, nine Member States do not have such "exor bitant" rules on jurisdic tion in their national 
law. The situation is similar when it comes to the protection of weaker parties. While in the 
area of employment law, a majority of 18 Me mber States allow an employee to bring 
proceedings against a non-EU defendant at home, this number is reduced to only 12 Member 
States in the area of consumer law, four Memb er States in the area of insurance law and only 
three Member States in the area of commercial agency agreements
50 (for details see Annex 
VIII). In those Member States which do not afford in their national law a jurisdictional 
protection to weaker parties engaged in cross-bo rder transactions with parties outside the EU, 
there is clearly a risk that these weaker part ies be deprived of th e substantive protection 
provided by EU legislation51. Objectives 
The specific objective  is to improve access to justice, le gal certainty, and protection of EU 
citizens and companies in disputes connected  with third States. The operational objective  is to 
ensure equal access to justice in the EU and make sure that weak er parties are not deprived of 
the protection granted to  them by EU law.  
2.2.2.  Need for EU action (Subsidiarity) 
Under the principle of subsidiarity laid down in Article 5 TFEU, in areas which do not fall 
within its exclusive competence, the Union shall act  only if and in so far as the objectives of 
the proposed action cannot  be sufficiently achieved by the Member States but can be better 
achieved at Union level. The existence of unequal conditions for companies doing business in 
                                                 
50 Nuyts Study on residual jurisdiction, p. 43, 46, 48 and 49 respectively. 
51 Cf Nuyts Study on residual jurisdiction, p. 86 es. 
EN 23   EN the internal market cannot be adequately addr essed by action at Member State level because 
the present problem is caused  by the diversity of national legi slation and reform by individual 
Member States will not remedy the situation. Th e possibility to take a coordinated approach 
and resolve the problem by way of multilateral or bilateral conventions is  no longer available 
to the Member States because external competence in matters of international jurisdiction lies exclusively with the European Union, as the Court of  Justice has clarif ied in its Lugano 
Opinion 1/03
52. The protection of weaker parties coul d theoretically be achieved at national 
level but Member States have not addressed th e issue so far and there is no indication that 
they would if the Union refrai ned from legislating. In additio n, since mandatory Union law is 
at stake, the Union should take appropriate act ion to ensure enforcement of Union law. For 
these reasons, the objectives se t out above could be better achi eved at EU le vel. Moreover, 
action at EU level would have the benefit of  simplifying the current  legal framework by 
consolidating all rules on international jurisdiction into a single legal document.  
2.2.3.  Description of Policy Options 
Five policy options have been identified to address the problems outlined above.  
Policy Option 1 : Status quo  
If the status quo were maintained, unequal acce ss to justice re sulting also in some unequal 
costs to bear would continue to exist as a result of diverging national laws governing 
jurisdiction vis-à-vis third State defendants as well as recognition and enforcement of third 
State judgments.  
Policy Option 2 : International negotiations 
Under this policy option, the Commission would s eek to negotiate an international agreement 
which would establish common rules on jurisdic tion and the recognition and enforcement of 
judgments on an international le vel. Such an agreement would notably ensure that countries 
only take jurisdiction on the basis of internati onally accepted criteria. Negotiations could take 
place in the framework of an international organisation such as the Hague Conference on 
Private International Law*. This option coul d be pursued on a self-standing basis or in 
combination with Options 3, 4 or 5.  
Policy Option 3 : Minimum harmonisation  
Under this option, on ly a few rules relating to disputes involving third country defendants 
would be harmonised while the remainder would continue to be governed by national law. This option could cover only the rules on ju risdiction (Option 3A) or both, the rules on 
jurisdiction and those on recognition and enforcement (Option 3B). A minimum 
harmonisation of the rules on jurisdiction would focus on disputes involving "weaker parties" 
(consumers, insured, employees). It would exte nd the current rules of the Regulation, which 
allow these parties to sue "at home" in intra-EU  disputes, to defendant s domiciled outside the 
EU. Member States would be allowed to mainta in national rules on ju risdiction in all other 
cases involving third country defendants.  A minimum harmonisation of rules on the 
recognition and enforcement of third country judgments would provide  a minimum protection 
                                                
 
52 Opinion 1/03 of 7 February 2006 on the competence of the Community to conclude the new Lugano 
Convention on jurisdiction and the recognitin and enforcement of judgments in civil and commercial 
matters.  
EN 24   EN from third country judgments which do not comply  with EU standards. Member States would, 
however, be permitted to maintain national rules which establish more restrictive conditions for the recognition and enforcement of non-EU  judgments than the minimum rules.  
Policy Option 4
: Full harmonisation of both the rules on jurisdiction and recognition and 
enforcement  
This policy option would fully harmonise the rules relating to disputes with third State 
defendants at EU level. As with Option 3, this  option can be divided into two suboptions: a 
full harmonisation of the rules on jurisdiction only (Option 4A) or a full harmonisation of 
both the rules on jurisdiction and on the recognition and enforcement of third country judgments (Option 4B). The full harmonisati on of jurisdiction rules would require the 
extension of all existing grounds  of jurisdiction in Regulati on Brussels I to defendants 
domiciled outside the EU. This means that not only the protective fora discussed in Option 3 
but also the grounds on jurisdiction applying for disputes in matters  of contract or tort would 
be extended to apply to third country de fendants. Moreover, an additional ground of 
jurisdiction would be created which would gr ant EU parties, both weaker parties and 
companies, access to EU courts in case no other c ourt would have jurisdiction to hear the case 
or the EU party would not get a fair tria l in the third country  court (so-called " forum 
necessitatis "*). In addition, national "residual" grounds of jurisdiction, i.e. would be 
abolished, thereby creating a level playing field in the EU when it comes to access to justice. 
In order to compensate for th e abolition of national grounds of jurisdiction, an additional, 
"mildly exorbitant" forum would be established which grants jurisdiction to the court of the 
Member State where assets of the defendant  are situated. This forum would have the 
advantage of granting jurisdiction at the place where usually the judgment can be enforced.  
Under Option 4B, the grounds for refusing the recognition and enforcement of a judgment 
issued in a non-EU country would be  fully harmonised by the Regulation.  
2.2.4.  Discarded policy options 
Policy options 2, 3B and 4B can be discarded from the further analysis for the following 
reasons:  
The harmonisation of the rules on recognition and enforcement, whether minimal or full 
(Options 3B and 4B) has not received suffici ent support from stake holders in the public 
consultation. Few stakeholders were in favour of the idea to establish EU rules on recognition 
and enforcement; all others expressing a view on the issue preferred the issue to remain 
governed by national law or intern ational conventions. Overall, st akeholders seem to be more 
concerned that the issue in question risks ov erburdening the revision of  the Regulation than 
with the protection of EU citiz ens and companies from third country judgments. As to the 
Member States, while many agree that an extens ion of the jurisdiction rules to cover third 
State defendants would be an improvement of the current situation, most are very reluctant as 
to a harmonisation of the regime of recognition and enforcement. It w ould therefore not make 
political sense to pursue these op tions further at this stage.  
By contrast, Option 2, i.e. the approach to address the current problems through the 
negotiation of an international instrument, has received significant support from stakeholders 
in the public consu ltation. The option has nevertheless been  discarded in its pure form, i.e. 
without being combined with eith er Option 3A or 4A, because it does not seem to be realistic 
that agreement on a multilateral convention on th is issue could be reached in the short or 
EN 25   EN medium term. Efforts of negotiating a wo rldwide convention on jurisdiction and the 
recognition and enforcement of judgments in ci vil matters (the "judgment convention") have 
been undertaken by the Hague Conference on Priv ate International Law for almost twenty 
years without producing viable results. In 1999, the project of a judgments convention 
dramatically failed after years of intense nego tiations. Over the past ten years, the Hague 
Conference has repeatedly tried to re-launch the project, most recently at its general meeting 
in April 2010, but without avail. Although th e EU supported the idea, the majority of 
delegations, including the USA, Canada, Japan and Australia, were opposed to resume even 
exploratory work on this matter for the time be ing. Hence, while the EU should continue its 
efforts to re-launch negotiations on this issue, it is highly unlikely that  a convention could be 
agreed in a foreseeable future and the ratificat ion process could easily take another decade.  
2.2.5.  Analysis of impact of retained policy options 
2.2.5.1.  Policy Option 1: Status quo 
(a) Effectiveness to achieve objectives : This option would not meet the objectives set out 
above of ensuring access to ju stice and guaranteeing protection from third state judgments. 
(b) Key impacts. (i)  Economic impact . The key argument for retaini ng the status quo is that 
there is little quantitative evidence that the existing divergences between the national laws of Member States lead to distortions of competitio n and that the absence of access to EU courts 
entails significant losses for consumers and other weaker parties. However, the mere fact that 
the problem is difficult to quantify does not mean that it does not exist. (ii) Financial costs: 
Fundamental rights.  The status quo can lead to situa tions where EU citizens and companies 
do not have adequate access to justice or would not benefit from a fair trial in the competent 
court. While the mere fact that an EU claimant  has to litigate outside the EU does not as such 
constitute a denial of justice, situations can  arise where the competent foreign court does not 
guarantee certain procedural standards, is not in dependent, is corrupt or for other reasons does 
not respect the parties' right to  a fair trial. Moreover, the st atus quo does not guarantee an 
effective remedy before a tribunal in cases wher e rights of weaker parties granted by EU law 
are infringed. (iii) Social impact. Under the status quo, consumers, employees and other 
weaker parties would not always be able to ava il themselves of the rights granted to them in 
mandatory EU legislation. This lack of adequate  protection will make weaker parties reluctant 
to engage in transactions w ith parties in non-EU countries. (iv) Third countries. The 
existence of exorbitant grounds of jurisdiction in a number of  Member States could be a 
problem for non-EU countries which might be dr awn before EU courts even if the case in 
question does not have a sufficient link with  the EU territory. Exorbitant grounds of 
jurisdiction are generally critised  at international level. The most recent attempt to reach 
international agreement on reducing such exorbitant fora in the context of the Hague judgments Convention has however failed.  
2.2.5.2.  Policy Option 3A: Minimum harmonisat ion of the rules on jurisdiction 
(a) Effectiveness to achieve objectives : Option 3 would achieve part of the objectives 
indicated above. It would ensure adequate access to EU courts fo r weaker parties involved in 
disputes with defendants domiciled outside th e EU. However, inequalities in the access to 
justice within the EU would remain. (b) Key impact (i) Economic impact  Option 3 would 
remove the burden for weaker parties resulting from litigation before the courts of a non-EU 
State, in particular in those Member States wh ere no access to the courts  is currently foreseen 
under national law. On the other hand, Option 3 would not remedy the absence of a level playing field caused by the current divergence of national rules because the divergence of 
EN 26   EN national rules on jurisdiction would remain. Th is means that companies in some Member 
States will continue to incur higher business ri sk and litigation costs than companies in other 
Member States. (ii) Financial costs: Option 3A would trigger minimal to no financial costs 
for the Member States. (iii) Fundamental rights and social impact: Option 3A would 
improve the current situation in terms of fu ndamental rights for weaker parties, both as 
regards Article 47 and Article 38 of the EU Ch arter. It would clearly  strengthen access to 
justice in the EU for consumer s, employees, insured and other weaker parties involved in 
litigation with third country defendants by ensu ring the enforcement of the rights granted to 
them by EU legislation. The situation that a weak er party would effectively be deprived from 
the protection afforded to him by EU legisl ation because no court in the EU would be 
competent to hear the case would no longer arise. However, Option 3 would not remedy the risk of a denial of justice which European  companies might encounter under the present 
system, i.e. the situation that no court or only a court where the company cannot expect a fair 
trial would be competent to hear the case. (iv) Third countries: Option 3 would not have 
significant impact on third countries because the ex tension of the Regulation's protective rules 
of jurisdiction to situations where the weaker pa rty is litigating against a defendant outside the 
EU would presumably not be percei ved as unduly extending jurisdiction  
2.2.5.3.  Policy Option 4A: Full harmonisation of the rules on jurisdiction  
(a) Effectiveness to achieve objectives : The full harmonisation of jurisdiction rules would 
achieve the desired objective of ensuring both full and equal
 access to justice to the European 
courts. Access to justice would also be fully transparent because all rules on international 
jurisdiction would be consolid ated in one single document,  the revised Regulation. This 
option would do away with the ar tificial distinction between defendants domiciled within the 
EU and outside the EU. Such a distinction is no longer made in recent EU legislation, notably 
the Regulation 4/2009 on maintenance obligations53 and the Commission proposal for a 
regulation on succession and wills.54 (b) Key impact: (i) Economic impact: The full 
extension of the Regulation's rules on jurisdic tion to third country de fendants would increase 
the possibilities for EU companies to litigate in the EU rather than abroad. This would bring 
about a reduction in the average litigation costs and delays for EU companies because 
litigation within the European ar ea of justice is generally cheap er and simpler than litigation 
in a country outside the EU55. Measures of judicial cooperation are largely absent in relations 
with third countries and the ge ographical distance of the comp etent court will most likely 
increase costs for witnesses and parties to a ppear in person. Moreover, a harmonisation of the 
rules relating to third country defendants will increase legal certainty a nd predictability which, 
in turn, is likely to produce cost savings for the companies involved. The improved legal 
framework might also encourage more companies to engage in cross-border transactions. In 
addition, the absence of a level playing field which results from the divergence of national 
rules on jurisdiction would be remedied. SMEs : Any cost savings will be particularly 
beneficial for SMEs which do not have the resources to handle complex international 
litigation in the same way as large companies. (ii) Financial costs: Option 3A would trigger 
minimal to no financial costs for the Member States. (iii) Fundamental rights and social 
impact: As for Option 3A, the full harmonisation would improve access to justice for weaker 
parties (consumers, employees etc)  in line with Articles 38 and 47 of the Charter because it 
would guarantee their access to an EU court in disputes involving defe ndants from outside the 
                                                 
53 Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of 
decisions and cooperation in matters relating to maintenance obligations. OJ L 7, 10.1.2009. 
54 COM (2009) 154 final of 14 October 2009. 
55 See CSES study, p. XXX (figures to follow). 
EN 27   EN EU. In addition, Option 4A would ensure full access to justice to European companies in 
litigation involving third country defendants. The creation of a forum of necessity would 
ensure that European companies would have access to an EU court in case no other court 
guaranteeing a fair trial has jurisdiction. Finally, the introduction of a forum geared 
specifically at non-EU defendants would improve  access to justice for companies from those 
Member States which currently do not have co mparable provisions in  their national law. (iii) 
Social impact As Option 3A, Option 4A would ensure  that weaker parties (consumers, 
employees etc.) retain the protection gr anted to them by mandatory EU law. (iv) Third 
countries The impact of Option 4A on non-EU countri es would depend on the substance of 
the harmonised jurisdiction rules. If  the EU were to include several strongly exorbitant fora in 
the revised Regulation, the reform may be badl y perceived on a diplomatic level. However, 
the envisaged creation of a forum of necessity a nd a "mildly exorbitant" rule of jurisdiction, 
e.g. based on the location of assets provided that  the case has a sufficien t link with the forum, 
is hardly objectionable on a diplomatic level given that the procedural rules of most of the 
EU's trading partners contain themselves exor bitant rules of jurisd iction. On the contrary, 
impact on third countries would be positive as  Member States would not be entitled to 
maintain more generous conditions for access  to justice in their national law. Should 
international negotiations on a worldwide judg ments convention resume, the impact of the 
revision on the EU's negotiating position wo uld equally depend on the substance of the 
harmonised rules. The alignment of  national rules as such would be  neutral in this respect and 
the introduction of a "mildly exorbitant" foru m in the Regulation could improve the EU's 
bargaining position in the negotiations.  
2.2.6.  Comparing the options and preferred policy option 
Based on the above analysis, the key elements  of which are summarized in Table 2, the 
preferred Policy Option is Option 4A.  
Objectives/impact Policy Option 1 Po licy Option 3A Policy Option 4A 
Improve protection of 
EU parties in extra-EU disputes  0 + ++ 
Economic impact 0 0 + 
Fundamental rights 0 + + 
Impact on third 
countries 0 0 0 or + 
 
2.3. CHOICE OF COURT AGREEMENTS 
2.3.1.  Problem definition for the C hoice of Court Agreements  
2.3.1.1.  The current problem  
Choice of court agreements (als o known as "forum-selection-cl auses") are one of the most 
important jurisdictional devices of modern times. They are c ontractual clauses by which the 
parties determine which court should decide any dispute which might arise between them. 
EN 28   EN Choice of court agreements enab le businesses (and others) to plan where potential litigation 
will take place; the effectiveness of choice of court agreements increases legal certainty for 
companies.  
Regulation Brussels I gives effect to choice of  court agreements, provided they comply with 
certain formal requirements. The possibility of  the parties to choose the competent court is 
only excluded in specified cases where there is  likely to be an inequality of bargaining 
power56 or where there are strong policy reasons w hy particular courts should have exclusive 
jurisdiction57. 
Problem 1 : Concerns have been raised  that the effectiveness of choice of court agreements 
may in practice suffer from abusive litigation tactics. This is possi ble due to an interplay with 
another provision in the Regulation, the so-called lis pendens*  rule58. This rule aims to avoid 
the situation that two courts in the EU deal  with the same case at the same time with 
potentially conflicting outcomes. It stipulates th at the court second seized of a dispute must 
stay proceedings until the court first seized ha s ruled on its jurisdiction. Where the court first 
seised is not the chosen court, it should decl ine jurisdiction unless the agreement is invalid.  
While the lis pendens  rule is sound in theory, it may en courage abusive litig ation tactics in 
practice. This is because a part y can gain important advantages  if it violates  the choice of 
court agreement and sues in another jurisdiction than the chosen one. First, the court actually seized might consider the agreement invalid wh ile the chosen court w ould have upheld it. The 
court seised might also consider that the quest ion in dispute is not covered by the choice of 
court agreement whereas the court chosen is known to give a broader interpretation to the 
scope of jurisdiction clauses. Thirdly, the party wishing to escap e the choice of court 
agreement can considerably delay proceedings in the chosen court if the court first seised is 
situated in a country whose judicial system is  notoriously slow. In legal literature, this 
technique has come to be know n as the "Italian torpedo"
59. Depending on the jurisdiction and 
the complexity of the case, it will take the non-competent court from  several months to 
several years to decline jurisdiction. This delay, which adds to the time for obtaining a 
judgment on the merits can be extremely vexi ng for companies seekin g to swiftly recover 
their debts. Moreover, torpedo actions increas e the costs of litigat ion by adding court and 
lawyers' fees in the non-competent jurisdiction to the overall bill.  
The problem described above can be illustrated by the Gasser60 case which was decided by 
the Court of Justice in 200361 and has sparked the call for refo rming the Regulation's rules on 
choice of court agreements: 
Example: Company X, established in Austria,  concludes a sales contract with 
                                                 
56 E.g. in relation to consumers, employees and insured.  
57 E.g. concerning rights in rem in immovable property, cf. Article 22 of the Regulation. 
58 Article 27. 
59 This expression was actually coined by an Italian lawyer specialised in intellectual property law who 
advised companies wishing to infringe a patent to bring a declaratory action for non-liability in Italy. 
Their action may fail in the end but it is likely to take  years to decide during which they could make use 
of the patent without interference; cf. Franzosi, "W orldwide Patent Litigation and the Italian Torpedo" 
(2977) 7 EIPRev, p. 382. In one such case, it took eight years for a non-competent court to decline 
jurisdiction, cf the judgment of the ECJ in case C- 159/97 Trasporti Castelletti v. Trumpy.  
60 A summary of relevant judgments of the ECJ may be found in Annex VII. 
61 Judgment of the ECJ of 9th December 2003 in case C-116/02 Gasser GmbH v. MISRAT Srl. The facts of 
the case have been simplified to illustrate the point discussed.  
EN 29   EN company Y, established in Italy. The c ontract contains a clause whereby the 
parties agree to bring any disputes unde r the contract before the courts in 
Vienna, Austria. Company Y defaults on its performance under the contract. 
Before company X can bring an action for damages, company Y launches court 
proceedings in Rome, Italy, requesting th at the contract be declared null and 
void. When company X brings an action fo r damages in Vienna on the basis of 
the choice of court agreement, argui ng that the agreement is valid, the 
Viennese court is unable to proceed due to  the lis pendens rule and has to wait 
until the court in Rome has declined jurisdiction.  
Problem 2 : The effectiveness of choice of court ag reements needs to be ensured not only 
within the European Union but also beyond the EU's borders. European companies doing 
business worldwide will not always be able to  impose the choice of their home jurisdiction on 
their trading partner; they will often have to ag ree to litigate in a court situated outside the 
EU. In these circumstances, it is equally importa nt for the companies that the choice made by 
the parties will be upheld in case a dispute aris es. However, the current divergence of national 
laws on the question of choice of  court agreement makes it difficult for businesses to foresee 
if and under which conditions their jurisdiction cl ause will be respected. In order to remedy 
this situation, the European Union negotiated an international agreement, the Hague Convention on Choice of Court Agreements
*, which improves legal certainty for forum-
selection-clauses in B2B relationships. The c onvention was adopted in  2005 and signed by the 
EU in 2009. The ratification process is ongoing and closely followed by the EU's main trading 
partners such as the US. The ratification of  the Convention would have an impact on the 
Regulation because choice of court agreements  between an EU party and a non-EU party 
would no longer be governed by the Regulation but by the Conve ntion. The revision of the 
Brussels I Regulation does not seek to implemen t the Convention's rules; this is not necessary 
given that the Convention once ra tified will be directly app licable in all Member States. 
However, the revision should ensure  that the approach to choice of court agreements for intra-
EU situations is coherent w ith the one which will potentia lly be adopted for extra-EU 
situations . Under the Hague Convention, the c ourt seised but not chosen must dismiss the 
case unless one of the exceptions es tablished by the Convention applies62. 
2.3.1.2.  Who is affected? 
Although choice of court agreements can be c oncluded by anyone entering into a contract, 
they are primarily relevant for companies in volved in cross-border trade, whether with 
partners domiciled within or outside the European Union.  
2.3.1.3.  Scope of the problem  
Almost 70% of European companies engaged wh ich sell products or provide services in 
another Member State have choice of court agreements in their international contracts63. The 
larger the company, the more likely that it make s use of this jurisdic tional device: 90% of 
companies having more than 250 employees use choice of court agreements regularly or 
occasionally64. These figures show that the overwhelm ing majority of EU business makes use 
of choice of court agreements in their B2B re lations and is interested to minimise the 
possibilities of abusive litigation tactics whic h could thwart their e ffectiveness and force 
                                                 
62 Cf Article 6 of the Convention. 
63 EBTP survey, question 3. 
64 Oxford study on civil judicial systems in Europe, question 48, 49. 
EN 30   EN companies to litigate in a court other than the one contemplated or to engage in costly and 
time-consuming parallel litigati on. Choice of court agreements  also figure increasingly in 
transnational company agreements concluded between employees' representatives and the 
management65.  
It is difficult to obtain reliable figures which would quantify the risk of  abuse of the existing 
rules. According to one survey, 7.7% of companie s reported that in the past five years their 
contractual counterpart did not comply with the clause designating the competent court and 
took the dispute before a different court66; almost half of these companies faced this problem 
more than once. 5.7% of companies stated th at their choice of court agreement was held 
invalid over the same period67. It is not clear which percentage of these companies was 
affected by abusive litigation tactics but it can be  inferred from the figures that this concerns 
between 2 and 7.7% of all companies.  
2.3.2.  Objectives  
The specific objective  is to enhance the effectiveness of choice of court agreements and 
facilitate the ratification by the European Un ion of the Hague Conven tion on Choice of Court 
Agreements. The operational objectives  are to eliminate possibilities for abusive procedural 
tactics in a way which makes the rules of the Regulation compatible with the Hague 
Convention. 
2.3.3.  Need for EU action (Subsidiarity) 
The rules governing lis pendens  between two or more courts seised with a dispute in the 
Member States are laid down in Regulation Br ussels I, an instrument of EU law. Any 
modification of these rules for disputes invo lving choice of court agreements requires 
inevitably the intervention of the European legi slator and therefore, by definition cannot be 
achieved by the Member States alone.  
2.3.4.  Description of policy options 
Policy Option 1: Status quo Under this option, the effectiven ess of choice of court agreemen ts would continue to suffer 
from abusive litigation tactics and the solution adopted by the Regulation would not be in line 
with the one promoted by the Hague Convention.  
Policy Option 2
: Exempt the chosen court from obligation to stay proceedings  
Under this option, the court designated in a choi ce of court agreement would be released from 
its obligation to stay proceedings pending th e decision of the court first seised. As a 
consequence, both the chosen co urt and the court first seised would be allowed to continue 
their proceedings in parallel.  
                                                 
65 See on this issue the 2009 study by van Hoek/Hen dricks, International private law aspects and dispute 
settlement related to transnational company agreements, available at the very bottom of 
http://ec.europa.eu/social/main.jsp ?catId=707&langId= en&intPageId=214   
66 EBTP survey, question 7. 
67 EBTP survey, question 4; given that the number of companies answering questions 7 and 4 is identical, 
it can be presumed that the comp anies refer to the same cases.  
EN 31   EN Policy Option 3 : Give the chosen court priority  to decide on its jurisdiction 
Under this option, the court chosen in a choice of  court agreement would be given priority to 
proceed and decide on its jurisdiction, regardless  of whether it is first or second seised. Any 
other court would have to stay proceedings until the chosen court has established or – in case 
the choice of court agreement is i nvalid – declined its jurisdiction.  
Policy Option 4 : Impose a deadline on the court first seised to decide on its jurisdiction 
Under this option, the chosen court would conti nue having to stay proceedings until the court 
first seised has declined its jurisdiction but th e Regulation would oblige the court first seised 
to take its decision w ithin a certain d eadline. In addition, the tw o courts would communicate 
in the course of the proceedings with a view to facilitating the resolution of the jurisdiction 
question.  
Policy Option 5 : Exclude actions for negative declarat ory relief from the lis pendens rule 
Under this option, the general ru le that the court second seised has to stay proceedings 
pending the decision of the court first seised would remain. However, an exception would be 
made for cases where the first court has only been  seised with an action for declaratory relief. 
These are actions where the claimant does not re quest the payment of a sum of money or the 
performance of the contract but seeks a ruling on the validity of a contractual clause or the 
existence of a specific obligation. Thus, a claima nt trying to evade a claim for damages in the 
chosen court could seek a declaration from anothe r court that he is not liable to pay damages 
(so-called "negative declarator y relief"). Under Option 5, the chosen court wh ich is seised 
second could continue with its proceedings in situations where the action in the court first 
seised was limited to declaratory relief.  
2.3.5.  Discarded policy options 
Two policy options, option 4 and option 5 have been discarded following the public 
consultation because they did not receiv e sufficient support by stakeholders.  
As to Option 4 (Imposing a deadline on the court first seised and establishing a mechanism of 
direct communication between the courts) many stakeholders considered that this option 
could be a useful additional measure to impr ove the functioning of the lis pendens rule 
generally but that it would not by itself achie ve the desired objective of discouraging the 
circumvention of choice of cour t agreements. Setting a deadline would be helpful to speed up 
proceedings in some countries where the judicial  system is very slow but would not as such 
discourage abusive litigation in a non-competen t court. Costs and de lays would still be 
incurred, even if the time frame became more pr edictable. This option will therefore not be 
considered separately in this context. It will be considered as an am endment to the general 
functioning of the lis pendens rule which, how ever, goes beyond the scope of this analysis 
(see point 1.5 above).  
Option 5 (the exclusion of negativ e declaratory relief from the lis pendens  rule) did not 
receive substantial support by stakeholders. Firs t, it tackles only part of the problem outlined 
above. While actions seeking a d eclaration of non-liab ility might be one way to frustrate a 
choice of court agreement, they  are certainly not the only way. In many circumstances, a party 
wishing to torpedo a choice of court agre ement could also bring an action seeking 
performance and/or requesting the payment of  damages. This option would therefore not 
entirely remove the threat to choice of court agreements  resulting from pre-emptive 
EN 32   EN proceedings. Stakeholders also pointed out that  this option would not be in line with the 
solution adopted by the Hague Choice of Court C onvention. It was therefore decided not to 
pursue it further.  
2.3.6.  Analysis of impacts of retained options 
2.3.6.1.  Policy Option 1: Status quo 
(a) Effectiveness to achieve objectives: This option would not meet the objectives outlined 
above. The status quo would c ontinue jeopardising the effec tiveness of choice of court 
agreements and would not bring about the legal certainty necessary to encourage businesses to 
engage in cross-border transactions. (b) Key impacts: (i) Economic impact: Choice of court 
agreements are widely used by European busine sses; more than 70% of EU companies uses 
this judicial device in their international contracts (see Section 2.3.1.3 above). The current 
situation is heavily criticise d by stakeholders which emphasi se the imminent need to 
strengthen the effectiveness of choice of c ourt agreements. The actual damage caused by 
abusive litigation tactics today is difficult to quantify; the proportion of  companies affected by 
the shortcomings of the current situation in th e past five years is be tween 2 and 7.7%. Where 
a company becomes a victim of ab usive litigation tactics, it incurs costs and delays to defend 
its case in a jurisdiction other than the one chos en before being able to litigate in the chosen 
court. The costs incurred consist notably of la wyers' fees and travel expenses, possibly also 
costs of the translation of docum ents or of expert witnesses68. More importantly, the risk of 
having the resolution of their disputes complicat ed in the way outlined above is putting off 
European companies from getting involved in cross-border tran sactions, thereby preventing 
them to make full use of the advantages offered to them by the internal market. As set out in 
Section 2.1.5.1 above, about 30% of the companie s that currently do not sell goods or provide 
services in other Member States are not doing so because of potential or actual problems in 
cross-border litiga tion or debt-recovery69. Since SMEs  have fewer resources and 
infrastructure to deal with cross-border legal proceedings, the deterring effect of the status 
quo is likely to be larger on th em than on big multinationals. (ii) Fundamental rights: The 
fact that the status quo does not fully ensure the effectiveness of  choice of court agreements 
could have a negative impact on the freedom to conduct a business referred  to in Article 16 of 
the Charter, which encompasses the freedom of  contract. Arguably, these rights encompass 
that the legal system gives effect to the will of the parties. Where a choice of court agreement is validly concluded, parties s hould not be able to escape fro m it by bringing an action in a 
different court. The current situation which encour ages abusive litigation tactis of that kind is 
problematic in that respect. (iii) International aspects: Maintaining  the status quo would 
mean that the regime applied under the Regulatio n to internal situations would differ from the 
regime applied to external situations under the Hague Conve ntion on Choice of Court 
agreements.  
2.3.6.2.  Policy Option 2: Exempt the chosen court from the obligation to stay proceedings 
(a) Effectiveness to achieve objectives: This option would achieve the desired objective of 
discouraging abusive litigation tactics because pr e-emptive actions in another court would no 
longer delay proceedings in the chosen forum.  However, a bad faith claimant could still 
                                                
 
68 It will depend on the procedural rules of the forum to what extent these costs can be recovered from the 
losing party in case the court not chosen upholds the choice of court agreem ent. These rules vary 
significantly between Member States.  
69 EBTP survey, question 1. 
EN 33   EN complicate the life of his (business) partner by first seising a court not chosen by the parties 
and forcing the other party to e ngage in parallel litigation. In the cases where the court not 
chosen decided that the jurisdiction clause wa s invalid, option 2 would entail the risk of 
conflicting judgments which the rules of the Regulation generally seek to avoid. (b) Key 
impacts: (i) Economic impact: Option 2 would have some economic benefits because it 
would limit the risk of abusive litigation and thereby limit the damage caused at present by 
the abuse. However, option 2 would create th e risk of cost and time-consuming parallel 
litigation and conflicting judgments which today does not exis t. It would therefore not go far 
enough to encourage those businesses which currently are not engaged in cross-border trade to do so . On the basis that ove r the past five years, 7.7% of companies have faced a situation 
where their contractual counterpa rt did not respect the choice of court agreement and brought 
proceedings in a different court, the risk of  parallel proceedings and conflicting outcomes 
would affect 1.5% of companies per year
70. (ii) Financial costs: Financial costs incurred for 
implementing the change would be minimal given that no new procedures would be 
introduced. (iii) Fundamental rights: By allowing the chosen court to proceed, option 2 
would give better effect to the will of the parties having concluded a choice of court agreement than option 1. However, the risk of costly and time-consuming parallel litigation 
would remain. Option 2 would therefore only sli ghtly improve the situation in terms of the 
freedom to conduct a business referred to in Article 16 of the Charter. (iv) International 
aspects: This option mirrors to a certain exte nt the approach adopted by the Hague 
Convention. The rule that chosen court would be  able to proceed even if it is seised second 
corresponds to the situation whic h would apply to choice of court agreements in favour of 
courts outside the EU once the Hagu e Convention is ratified by the EU.  
2.3.6.3.  Policy Option 3: Give the chosen court pr iority to decide on its jurisdiction  
(a) Effectiveness to achieve objectives : Giving jurisdictional priority to the chosen court 
would discourage the use of tactical pre-em ptive claims which seek to undermine a valid 
choice of court agreement. Opti on 3 would thus fully achieve the objectives set out above 
without entailing the risk of parall el proceedings as does option 2. (b) Key impacts: (i) 
Economic impact : Option 3 would eliminate the costs and delays which businesses incur 
today due to their partners' bad faith attempts to  circumvent choice of court agreements. It is 
also likely to encourage at least part of the 30% of businesses which currently are not 
involved in cross-border trade because of problem s inherent in cross-border litigation or debt-
recovery to do so. It would increase legal cert ainty for businesses and boost their confidence 
in the effectiveness of their c ontractual arrangements for dis pute resolution. The drawback of 
this solution is that it may lead to delays in  judicial proceedings wh ere the designated court 
eventually holds the agreement invalid and th e parties end up litigatin g in another court. 
However, the percentage of choice of court agr eements which is declared invalid is relatively 
small: it concerns only about 1.1% of companies per year
71. Arguably, fewer companies 
would be affected by the disadvantages of opti on 3 than those affected by the drawbacks of 
option 2. (ii) Financial costs:  As option 2, option 3 would be  a clear and straightforward 
solution to address the identified problem which would only entail minimal implementation 
costs. (iii) Fundamental rights:  By minimizing the room for a busive litigation tactics, option 
3 would fully give effect to the will of the pa rties to a choice of court agreement. This would 
improve the situation of the parties in terms of  the freedom to conduct a business as referred 
                                                 
70 Cf EBTP survey, question 4 and 6, according to which over a five year period, 7.7% of companies 
faced a situation where their c hoice of court clause was not re spected by the other party and 
proceedings were brought in a different court.  
71 Cf EBTP survey, question 4. 
EN 34   EN to in Article 16 of the Charter. (iv) International aspects : Option 3 mirrors the solution 
adopted by the Hague Convention. As in the Conven tion, priority is given to the chosen court 
which is able to proceed even if seised s econd. In the public consu ltations, this option was 
therefore supported by many stakeholders.  
2.3.7.  Comparing the options and preferred Policy Option 
On the basis of the analysis set out above, whic h is summarized in the table below, Option 3 
is the preferred policy option.  
Objectives/impact Policy Option 1
Status quo Policy Option 2
Exemption from obligation to stay proceedings Policy Option 3
Giving priority to the chosen court 
Eliminate the possibilities for abuse0 + ++ 
Economic impact 0 + ++ 
Fundamental rights 0 + ++ 
International aspects 0 + ++ 
 
2.4. INTERFACE BETWEEN THE REGU LATION AND ARBITRATION  
2.4.1.  Problem definition for the interface be tween the Regulation and Arbitration  
2.4.1.1.  The current problems 
Arbitration is a matter of great importance in  international commerce. It is a way for 
companies to resolve their disputes out-of-co urt which has certain advantages over court 
litigation, notably in terms of confidentiality, speed and informality of proceedings72.  
Arbitration is currently not c overed by the scope of Regulation Brussels I. The exclusion of 
arbitration can be explaine d by the existence of the 1958 New York Convention on the 
Recognition and Enforcement of  Foreign Arbitral Awards*  which requires the courts of the 
Contracting States to give effect to a priv ate agreement to arbitrate and to recognize and 
enforce an arbitral award made in another Contracting State. A ll Member States are party to 
this Convention and it is also widely ra tified throughout the rest of the world.  
While in general the arbitration exclusion of the Regulation has allowe d arbitration in the 
Member States to develop on the basis of the New York Convention and national law, 
difficulties have been reported concerning the re lation of arbitration and court proceedings. In 
fact, there are situations in which state courts may be requested to intervene in disputes which 
have been submitted to arbitrati on. For instance, courts may be se ized to grant interim relief*, 
to assist in setting the arbitr ation in motion or to evaluate the validity of an arbitration 
                                                 
72 Cf. Oxford Study on Civil Justice Systems in Europe, Fn. XX above, question 49. 
EN 35   EN agreement. In the latter case, the party challenging the validity  of the arbitration agreement 
will usually request the court to decide also on th e merits of the case. This can lead to parallel 
proceedings and irreconcilable decisions between  courts and arbitral tribunals where the 
agreement is held invalid in one Me mber State and valid in another.  
This problem was recently illustrated in the West Tankers73 case. The parties to a commercial 
contract had agreed to arbi tration in London; neverthele ss an action for damages was 
introduced in the Italian courts (where the da mage had occurred), based on the argument that 
the arbitration agreement was invalid. The question arose whether the Italian proceedings were covered by the scope of Regulation Brussels I.  The Court of Justice held that if a party to 
an arbitration agreement introduced court procee dings on the merits in which the invalidity of 
the arbitration clause was raised as an prelim inary question, such proceedings fall within the 
scope of Regulation Brussels I.  This means that the subseque nt judgment circulates freely 
within the EU under the Regulation and can prev ent the continuation of arbitral proceedings 
on the same issue or the later recognition and enfo rcement of the arbitral award. This situation 
creates an incentive for a party wishing to esca pe from an arbitration agreement to claim 
(possibly in bad faith) that the agreement is inva lid and to bring proceedings on the merits in a 
Member State where it is likely to  obtain a favourable decision.  
The West Tankers  decision thus revealed a real risk for abusive litigation tactics under the 
Regulation. The fact that a bad faith claimant can escape from an arbi tration agreement by 
bringing an action on the merits in a "friendly" jurisdiction jeopardizes the effectiveness of 
arbitration in the European Union. The current s ituation may encourage parties to arbitrate in 
countries outside the EU which provide more le gal certainty for arbitral proceedings, thereby 
undermining the attractiveness of arbitr ation within the European Union.  
2.4.1.2.  Who is affected? 
The main stakeholders concerned are large Euro pean companies which opt for arbitration to 
resolve disputes with their commercial count erparts and European arbitration centres.  
2.4.1.3.  Scope of the problem  
The current legal framework does not sufficiently  protect the effectiveness of arbitration 
agreements in the EU. It entails a risk of pa rallel court and arbitration proceedings which are 
not only costly and time-consuming for the compan ies concerned but also create the risk of 
conflicting outcomes. The reactions received in the public consultation and examples of cases 
discussed in legal litera ture clearly show that the problem exists, although its exact extent is 
difficult to quantify notably due to the c onfidentiality of arbitral proceedings. 
The effectiveness of arbitration is of key importance for a signif icant number of notably larger 
companies and multinationals which use this method of dispute resolution on a regular basis. Surveys show that about 63% of large European companies prefer arbitration over litigation to 
resolve their business disputes; this is main ly due to the confidentiality and speed of 
arbitration proceedings
74. Where they have a choice, Europe an companies prefer to arbitrate 
within the EU: their most popul ar seats of arbitration are London and Paris, followed by 
                                                 
73 Case C-185/07. A summary of relevant judgments of the ECJ may be found in Annex VII. 
74 Oxford Study on Civil Justice Systems in Europe, question 48, 49; 95% of the companies questioned 
have more than 250 employees.  
EN 36   EN Geneva, Stockholm and New York75. The attractiveness of arbitration in Europe is also 
important for European arbitration centres which a ssist the parties with th e arbitration process, 
e.g. choosing the arbitrators, organising the hearings and fi nalising the award and which 
charge fees for these services. In 2009, Eur opean arbitration centr es administered 4,453 
international arbitration cases with a total value of over € 50 billion; the tendency is growing
76. Judging by the value of the claim (and leavi ng apart sector-specific centres such as 
the London Maritime Lawyers' Association), the mo st important arbitration centre in the EU 
is the International Chamber of Commerce in Paris, followed by the London Court of 
International Arbitration77. But also smaller centres such as the Vienna International 
Arbitration Centre, the Netherla nds Arbitration Institute, th e German DIS and the Stockholm 
Chamber of Commerce make important contribu tions to the European  arbitration industry78. 
The total value of the arbitra tion industry in the European Union can be estimated at €4 
billion79. The European arbitration industry faces increasing competition from emerging 
arbitration centres in Asia. Nota bly, the Singapore Inte rnational Arbitration Centre is one of 
the fastest growing arbitral institutions, havi ng increased its case-load  by over 300% over the 
past 9 years and currently handling the fifth largest number of cases worldwide80. Objectives  
The specific  objective is to ensure a transparent a nd predictable coordi nation of court and 
arbitral proceedings which preserves and impr oves the attractiveness of the European Union 
as place of arbitr ation. The operational  objective is to avoid para llel court and arbitration 
proceedings and to reduce the possibilities of undermining arbitra tion proceedings through 
abusive litigation tactics.  
2.4.2.  Need for EU action (Subsidiarity) 
The problems described above are caused by th e delimitation of the scope of Regulation 
Brussels I, as interpreted by the case-law of the Court of Justice. Any modification to the 
scope of the Regulation, whether extending or li miting it, therefore requires the intervention 
of the European legislator and, by definition can not be achieved by the Member States alone.  
2.4.3.  Description of policy options 
Policy Option 1: Status quo  
If the status quo were maintain ed, arbitration would generally remain excluded from the scope 
of the Regulation. However, in lig ht of the case law of the Eur opean Court of Justice, court 
proceedings on the merits of the case and in whic h the validity of the arbitration agreement is 
raised as a preliminary questio n would be covered by the Regul ation, thus allowing parallel 
proceedings, possibly conflicting outcomes of the dispute and enabling a party seeking to 
escape from an arbitral agreement to "sabotage" the arbitral proceedings.  
Policy Option 2 : Extend the exclusion of ar bitration from the scope  
Under this policy option, the excl usion of arbitration from the scope of Regulation Brussels I 
would be extended to cover not only arbitrati on proceedings but also any court proceedings 
                                                 
75 CSES study, p. 90, 91. 
76 CSES study, p. 86. 
77 CSES study, p 88. 
78 CSES study, p. 90, 91. 
79 CSES study, p. 88.  
80 CSES study, p. 89. 
EN 37   EN related to arbitration proceedings, notably procee dings in which the validity of an arbitration 
agreement is contested. The recognition and enfo rcement of a subsequent judgment would not 
be governed by the Regulati on but by national law.  
Policy Option 3 : Enhance the effectiveness of  arbitration agreements  
This option would enhance the effectiveness of  arbitration agreements by including common 
rules for certain aspects of arbitration in Re gulation Brussels I. Essentially, a rule on lis 
pendens would be inserted into  the Regulation which provides that a court seised with a 
dispute involving an arbitration agreement would have to stay proceedings if a court at the 
seat of the arbitration or an arbitral tribunal is seised with  the question of the existence, 
validity or effects of the arbitration agreement. As a result, it would al ways be possible for the 
parties to an arbitration agreement to ensure that  only the arbitral tribunal or the court at the 
seat of the arbitration is hearing the case. This  would prevent parallel proceedings and the use 
of tactical litigation manoeuvres to "sabotage" arbitration proceedings as outlined above. This 
element could be implemented on its own (Option 3A) or in combination with an improved system for the recognition and enforcement of arbitral awards which would go beyond the 
1958 New York Convention (Option 3B). Such a system could be limited to establishing a 
uniform procedure for recognition and enforcement, similar to the existing exe quatur system 
for court judgments, while retaining th e grounds of refusal of the 1958 New York 
Convention, or it could restrict the grounds  for refusal beyond those in the New York 
Convention and also deal with situations of  irreconcilable court j udgments and arbitral 
awards.  
2.4.4.  Discarded Policy Options 
Following the public consultation, Option 3B wa s discarded because there was little support 
for it. Stakeholders generally feel that the 1958 New York Convention works satisfactorily for 
the recognition and enforcement of foreign arb itral awards and that there is no need to 
regulate this issue on the European level. It would therefore not make  sense to pursue this 
option further.  
2.4.5.  Analysis of impacts of retained Policy Options 
2.4.5.1.  Policy Option 1: Status quo 
(a) Effectiveness to achieve objectives : Maintaining the status quo would not contribute to 
the objectives outlined above. Businesses which have opted for arbitration in one country 
would continue to run the risk th at the arbitration agreement is set aside by a court of another, 
possibly less "arbitra tion-friendly" country. (b) Key impact: (i) Economic impact: Although 
the total number of arbitration cases in the EU is relatively modest, the average value of these cases is very high (more than € 1 mio per cas e). Where such significant amounts of money are 
at stake, businesses need to be  sure that their choice of th e dispute resolution method cannot 
be jeopardized by their opponent's  abusive litigation tactics. In particular, the potential 
consequences of the West Tankers  decision are perceived as ve ry negative by the arbitration 
community; stakeholders emphasize the need for reform
81. Given that the West Tankers 
decision is a fairly recent one, there is not yet hard evidence pointing to EU arbitration centres losing out to non-EU ones but there is a concern that th is is beginning to happen
82. If business 
                                                 
81 CSES study, p. 105. 
82 CSES study, p. 105. 
EN 38   EN moves away from arbitration in Europe, the European arbitration industry risks losing a 
significant part of its current  €4 bio value. Moreover, thos e European companies which 
currently go for arbitration in the EU would need to incur la wyers' costs for adapting their 
dispute resolution strategies. (ii) Fundamental Rights:  The risk of parallel proceedings 
between courts and arbitral tribunals and of "sabotage" of the arbitral proceedings would 
subsist. This situation could have negative impact for the efficiency of justice and for the freedom to conduct a business because it does not ensu re that appropriate effect is given to the 
will of the parties. (iii) Third countries : Today, European arbitra tion centres attract not only 
European companies but also companies from outside the EU. If the legal framework for 
arbitration becomes less attractive following the West Tankers  decision, non-EU companies 
would re-orientate their dispute resolution to arbitration centres  outside the EU.  
2.4.5.2.  Policy Option 2: Extend the exclusio n of arbitration from the scope 
(a) Effectiveness to achieve objectives : This option would partially achieve the objectives 
outlined above. Doubts over the effectiveness of ag reements to arbitrate in the EU would be 
removed and businesses within the EU would be ab le to arbitrate without the threat of costly 
delaying tactics against them. Ho wever, the general problem of parallel court and arbitration 
proceedings and risk of conflicting decisions w ould remain. Moreover, the total exclusion of 
all judgments in cases involving an arbitrati on agreement from the scope of the Regulation 
would enable cynical litigant s to "torpedo" the recognition and enforcement of a judgment 
simply by claiming that the parties have conclu ded an arbitration agreement. Furthermore, 
option 2 would go against the overall objective of  creating a genuine area of justice in the 
European Union because it would re-nationalise part of the rules which are today harmonised 
on the European level. Judgments which curr ently circulate under Regulation Brussels I 
would cease to do so; their recognition and enforcement in another Member State would again be governed by the national laws of the 27 Memb er States. This would constitute a step 
backwards in the creation of a European area  of civil justice wh ich should be avoided. (b) 
Key impact:  (i) Economic impact : Essentially, the risks linked to the possibilities for 
abusive litigation tactics which have been illustrated by the West Tankers  decision will be 
eliminated. However, the risk of parallel court and arbitration proceedin gs would continue to 
exist. Arbitration in the EU would be more  attractive for European companies than under 
Option 1. Equally, the attractiveness of arbitratio n centres in Europe would be better ensured 
than under Option 1, although the deficiencies in the current legal framework may still make 
them less attractive than certain competitors outside the EU (ii) Financial costs : Costs for 
implementing the modification would be minimal. (iii) Fundamental Rights:  Under this 
Option, the question whether a court can hear a case in which an arbitration agreement has 
been concluded would depend en tirely on national law. The ri sk of parallel proceedings 
would therefore subsist with the negative impact  for the efficiency of justice and for the 
freedom to conduct a business outlined above. The attractiveness of arbitration in the European Union would be consolidated. 
2.4.5.3.  Policy Option 3A: Enhance the effectiv eness of arbitration agreements  
(a) Effectiveness to achieve objectives : This policy option would fu lly achieve the objectives 
outlined above. It would ensure the effectivenes s of arbitration agreements by eliminating the 
risk of parallel proceedings a nd by reducing the possibilities of  abusive litigation tactics. It 
would also ensure that all judgm ents that currently circulate w ithin the EU continue to do so. 
(b) Key impact: (i) Economic impact : As in Option 2, Option 3A w ould eliminate the risk of 
abusive litigation tactic s, with the economic benefits out lined above. In addition, Option 3A 
would eliminate the risk of parallel court a nd arbitration proceedings, thereby significantly 
EN 39   EN improving the attractiveness of arbitration in th e EU and of European arbitration centres. The 
European arbitration industry would be able to  maintain their current business or expand it. 
(ii) Financial costs : As for Option 2, the modification of  the Regulation would entail only 
minimal implementation costs for Member States. (iii) Fundamental Rights:  This option 
would improve the effectiveness of the remedy be fore a tribunal (article 47 of the Charter) for 
companies wishing to challenge (in good faith) an arbitration agreement because it would 
establish a clear and transparent legal framew ork for such challenges while defining clear 
rules to improve legal certainty and avoiding dilatory  tactics. It would also contribute to 
ensure that throughout the Union, maximum effect is given to the will of the parties which 
enhances their freedom to contract and freedom to conduct a business as referred to in Article 
16 of the Charter. (iv) Third countries : It may be expected th at the attractiveness of 
arbitration in the European Union would be increased. 
2.4.6.  Comparing options and preferred Policy Option 
Based on the above analysis, which is summari zed in the table below, the preferred policy 
option is option 3A.  
Objective/impact Option 1 
Status quo Option 2 
Extending the exclusion Option 3 
Enhancing the effectiveness 
Avoid parallel proceedings and conflicting decisions 0 – + 
Ensuring effectiveness of 
arbitration in EU 0 + 
 ++ 
Economic impact 0 + + 
Fundamental rights 0 + ++ 
3. OVERALL EVALUATION OF IMPACT OF PREFERRED POLICY OPTIONS  
3.1. Summary of the preferred policy options 
The preferred policy options for the revision of  Regulation Brussels I can be summarized as 
follows: 
(1) The existing exequatur procedure would be abolished, thereby permitting 
judgments to freely circulate within the European Union. The rights of the 
defendant would be safeguarded by intr oducing review procedures necessary 
to ensure the right to a fair trial. 
(2) The existing rules on jurisdiction of the Regulation would be extended to 
apply to defendants domiciled outside the EU; moreover, some additional fora would be added which would only apply to third country defendants. 
Jurisdiction for third country defe ndants would be fully governed by the 
EN 40   EN regulation but the recognition and enfo rcement of third country judgments 
would continue to be governed by national law.  
(3) The effectiveness of choice of court agr eements in favour of EU courts would 
be increased by reducing the possibilitie s of abusive litigation. The chosen 
court would get priority to decide the case even if another court is seised first 
of the dispute.  
(4) Arbitration agreements would also be made more effective. Any other court 
whose jurisdiction is contested on the basi s of the existence of an arbitration 
agreement would have to suspend proceedings on the matter insofar as the question of the existence, validity, or  effects of the ag reement is brought 
before the courts of the seat of the arbitration in the Union or before an arbitral tribunal. This will reduce the ri sk of parallel proceedings and abusive 
litigation tactics by parties seeking to evade an arbitration clause.  
3.2. The preferred options' effectiveness to achieve the policy objectives 
As indicated in the assessment of the indivi dual policy options, the pr eferred options address 
the problems identified better than any of the othe r options. Taken as a whole, they facilitate 
cross-border litigation and ensure a genuinely free circulation of judgments based on the principle of mutual recognition and improve resp ect of fundamental rights. They also help 
create the necessary legal environment for th e European economy to recover by reducing the 
cost of litigation and enhancing legal cer tainty for cross-border transactions.  
More specifically, th e package of preferre d policy options will 
• remove the remaining barriers for the free ci rculation of judgments while maintaining a 
high standard of protection of the rights of defence;  
• ensure equal access to justice as well as the conditions for a fair trial for citizens and 
companies in the European Union and make sure  that weaker parties are not deprived of 
the protection granted to them by European law; 
• enhance the effectiveness of choice of court agreements concluded in favour of European 
courts by reducing to a maximum the possi bilities for abusive litigation tactics. 
• Avoid parallel court and arb itration proceedings and re duce the possibilities of 
circumventing arbitration agreements  by abusive litigation tactics.  
3.3. Economic impact  
The package of policy options would lead to  significant savings for European companies 
currently engaged in cross-bor der business. The abolition of  exequatur would allow these 
companies to save the major part of the current costs of the intermediate procedure of almost 
€48 Mio per year. . Also the new rules on jurisdiction will bring about a reduction in the average litigation costs and delays for EU companies because litigation within the European area of justice is generally cheap er and simpler than litigation in  a country outsi de the EU. In 
addition, the preferred policy options would contri bute to preserving the current value of the 
European arbitration industry of € 4 billion pe r year and possibly incr ease it. Moreover, the 
reform would encourage an estimated 39 % (5,8 million) SMEs which are currently not 
involved in cross-border transac tions to make full use of the benefits offered to them by the 
EN 41   EN internal market and give more confidence to  more than 50% of the consumers which are 
currently discouraged or enti rely discouraged from enga ging in cross-border commerce 
because of the costs and delays associated w ith enforcing their rights in another country.  
3.4. Impact on financial costs 
Taken as a whole, the reform package would tr igger relatively modest financial costs. Only 
the abolition of exequatur would require Memb er States to incur costs for training to 
familiarize the legal profession with the new procedures envisaged to safeguard the defendant's rights. However, if national safegua rd procedures are modelled on the procedures 
adopted for the existing European instruments wh ich already have abolished exequatur for the 
judgments falling within their scope, the costs for implementing the reform should be minimal. In addition, judicial intermediari es, notably those in ch arge of the actual 
enforcement, would need procedural guidance and training to be able to handle the enforcement of judgments from another Member  State in the absence of a validation by a 
national court. The other changes envisaged constitute relatively straightforward changes to existing rules which would not re quire the creation of new procedures and should be able to 
be applied by judicial intermediaries without the need of  special training.  
3.5. Impact on fundamental rights 
All elements of the reform pack age respect to the rights set out in the Charter of Fundamental 
rights, and in particular the right  to an effective remedy and the ri ght to a fair trial guaranteed 
in its Article 47. They also improve the level of  consumer protection refe rred to in Article 38. 
The abolition of exequatur will be accompanied by the creation of special review procedures 
which ensure that the defendant has an eff ective remedy and that a judgment which does not 
respect his right to a fair trial or rights of defence will not take effect. The changes envisaged 
for the international legal order will improve access to justice in the European Union for citizens, in particular weaker parties, and companies. The elimination of the possibilities of 
circumventing a choice of cour t or arbitration agreements st rengthens access to justice by 
improving access to the court chosen by the part ies while avoiding dilatory tactics which 
could undermine the right to a fair trial. The st rengthening of the effect iveness of arbitration 
agreements reduces the risk of parallel pro ceedings, thereby improving the general efficiency 
of justice and the freedom to conduct a bus iness as referred to in Article 16.  
3.6. Social impact 
In sum, the revision of Regulation Brussels I will improve the situation of weaker parties, 
notably consumers, employees and insured in cro ss-border legal disputes. This is first of all 
due to the abolition of exequatur which will al low citizens involved in cross-border litigation 
to save substantial costs and be able to enfo rce a foreign judgment without the delay caused 
by the existence of the intermediate procedur e. Moreover, the increased access to European 
courts in transactions involvi ng defendants from third countri es will ensure that weaker 
parties will be able to avail themselves of  the protection awarded to them by European 
legislation.  
3.7. Impact on third countries 
The changes envisaged in the reform package will not have an adverse effect on the relations 
of the European Union with th ird countries. The contemplated harmonisation of the rules of 
jurisdiction to cover defendants domiciled in  third countries is fully in line with 
internationally accepted standards. A defendant domiciled in a third country would in 
EN 42   EN principle only have to appear before an EU c ourt if the case has a substantial link with the EU 
territory; the only exception would apply in cases where the party's right to access to court or 
to a fair trial would not be guaranteed in th at third country. Moreover, the removal of the 
existing exorbitant grounds of jurisdiction in Member States' national law will be to the 
benefit of third countr y defendants who no longer risk to be  sued in a European court which 
has no or only very little connection with the cas e. The other elements of the reform package 
will equally contribute to improving the EU's relations with its international partners: the modifications contemplated in the area of ch oice of court agreements will facilitate the 
ratification of the Hague Conve ntion on Choice of Court agreem ents by the European Union 
which will give a positive signal to the in ternational community. Moreover, the improved 
interface between the Regulation and arbitration will make European arbitration centres more 
attractive to companies from outside the EU. Finally, third country claimants which have 
obtained a judgment in one Member  State but need to enforce it in another Member State will 
benefit from the reduction of costs and delays brought about by the abolition of exequatur 
procedures.  
4. P
ROPORTIONALITY OF EU ACTION  
Measures taken have to be proportionate to th e size and extent of the problems addressed. The 
package of preferred options outlined above respects the proportionality principle. The 
changes contemplated in the package of pref erred policy options do not go beyond what is 
necessary to address the problems identified. As  outlined above, the benefits and savings of 
the preferred policy options largely outweigh its costs and disadvantages. The potential for 
economic savings is substantial while the financial costs for implementing the reform in the Member States are overall small. The reform pack age has the potential to  promote trust in the 
internal market and encourage more compan ies and citizens to en gage in cross-border 
transactions, thereby reaping th e benefits of the internal market. Such increased economic 
activity, taken together with the savings the re form entails, would contribute to help citizens 
and companies overcome the current financial crisis.  
5. L
EGAL BASIS 
Regulation Brussels I was adopt ed on the basis of Articles 61 (c) and 67 (1) of the Treaty 
establishing the European Commun ity. After the entry into force of the Treaty of Lisbon, the 
Treaty basis for the adoption of legislative instru ments aimed at ensuring the compatibility of 
the rules applicable in the Member States co ncerning jurisdiction are Article 67 (4) and 81 (2) 
(a), (c) and (e) of the Treaty on the Functioning of the European Union.  
6. MONITORING AND EVALUATION  
In order to monitor the effective applicati on of the amended Regulat ion, regular evaluation 
and reporting by the Commission will take place. To fulfil these tasks, the Commission will prepare regular evaluatio n reports on the application of th e Regulation, based on consultations 
of Member States, stakeholders and external expe rts. Regular expert meetings will also take 
place to discuss application problems and exchange  best practices between Member States in 
the framework of the Eur opean Judicial Network. 
In most Member States, there is no systematic collection of statistical data on the application 
of the Regulation making it very difficult to m easure how the Regulation affects cross-border 
EN 43   EN litigation. The Commission will therefore includ e in the proposed Re gulation a requirement 
on Member States to provide in formation on the application of  the Regulation in practice, 
notably on the number of recourses to the specia l review procedures created to safeguard the 
defendant's fundamental rights and on the outcome of these procedures.  
EN 44   EN ANNEX I –GLOSSARY OF LEGAL TERMS  
Annex I - Glossary 
Term Definition 
Preliminary question  Question which a judge has to 
examine in order to determine whether certain conditions required for the existence of the principal question are fulfilled. 
Anti-suit injunction A court or der which seeks to prevent 
an opposing party from commencing 
or continuing proc eedings in another 
jurisdiction or forum by imposing damages in case of non-compliance. 
Arbitration A mechanism for the resolution of 
disputes outside the courts, wherein the parties refer their dispute to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound.  
Choice of court agreement An agreement, usually forming part 
of a contract, by which parties agree that any future disp ute arising out of 
their relationship should be resolved by a particular court or courts (e.g. "the courts of England", "the upper regional court of Duesseldorf"). 
Civil and commercial matters 
 Relates to legal relationships 
between private individuals, as opposed to the relationship between the State and an individual 
Civil justice / civil law  Law that governs the relationships 
between private individuals (and between private individuals and the State where the latter has acted in a private law capacity), as opposed to public law which governs the relationship between the individual and the State.  
Claimant Any either natural or legal person 
who brings an action against 
EN 45   EN somebody (the defendant) in court. 
Declaratory relief A lega lly binding judgment of a 
court which determines the rights of one or more parties without ordering performance or awarding damages. 
Defendant Any natural or legal person against 
whom an action is brought in court.  
Enforcement The act of a public authority by 
which a judgment or administrative order is put into practice (e.g. a judgment ordering a debtor to pay 100 euros may be enforced by attaching the requisite sum in a bank account of the debtor’s and then disbursing it to the creditor).  
Exequatur procedure Formal court procedure by which a 
foreign judgment is declared enforceable (i.e. "validated" for enforcement) in the state where enforcement is sought.  
Exorbitant rules of jurisdiction 
 Rules of jurisdiction in which the 
court seized does not possess – by internationally agreed standards - a sufficient connection with the parties to the case, the circumstances of the case, the cause or subject of the action.  
Forum  A judicial body, e.g. a court or 
tribunal, having jurisdiction. 
Forum necessitatis  [Latin, ‘forum of necessity’] Forum 
which may exercise jurisdiction when no other forum is reasonably available 
Hague Conference on Private International Law An intergovernmental organisation 
with its seat in The Hague, NL, which is working for the progressive unification, by means of international conventions, of the rules of private international law.  
Interim relief Measures ordered by a court which 
are intended to preserve a factual or legal situation so as to safeguard 
EN 46   EN rights the recognition of which is 
otherwise sought from the courts on the merits, e.g. the freezing of assets. 
Jurisdiction/International jurisdiction 
 Jurisdiction is th e power conferred 
upon a court or tribunal to hear a specific case; international jurisdiction is the competence of the courts of a particular country to hear a case. 
Lis pendens or litispendence  [La tin, ‘pending suit’]  Situation in 
which at the moment when one court or authority is seized, another court or authority is already in the process of examining the same dispute.  
Public policy 
 - procedural public policy - substantive public policy Generally understood as the ultimate 
principles which underpin the legal system of a State. In Private International Law the irreconcilability of a judgment with the principle of public policy of a State can lead to the non-recognition of a foreign judgment in that State. Procedural  public policy refers to 
the situation where the foreign procedure runs against the basic legal principles of a State. 
Substantive  public policy relates to a 
irreconcilability of the substance of the foreign judgment with the basic principles of the State. 
Recognition The act of accepting a judgment or 
other act of sovereignty of another state as if it had been issued by an 
authority of one’s own state. 
Residual jurisdiction 
 Refers to the jurisdiction that is left 
to be determined by national law where the European law currently does not provide uniform grounds of jurisdiction (e.g. jurisdiction in situations where the defendant is domiciled outside the EU). 
The 2005 Hague Convention on choice of court agreements International Convention adopted in 
the framework of the Hague Conference on Private International law which governs exclusive choice 
EN 47   EN of court agreements in cross-border 
business-to-business relationships. 
The 1958 New York Convention on the recognition and enforcement of foreign arbitral awards International Convention adopted in 
the framework of the United Nations which requires courts of contracting states to give effect to agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states.  
 
EN 48   EN ANNEX II – SUMMARY OF VIEWS OF STAKEHOLDERS ON THE MAIN ASPECTS OF THE 
REVISIN OF REGULATION BRUSSELS I 
Views of stakeholders on the main elements of the reform as they result from the consultation 
process are as follows. 
1. ABOLITION OF EXEQUATUR  
With respect to the abolition of exequatur , a large majority of stak eholders and all Member 
States supported the objective of  a free movement of judgments within the European Union. 
There is general support for th e abolition of the exequatur pr ocedure as a means to achieve 
this objective. A very large majority of stake holders opined that the abolition of exequatur  
should be accompanied by safeguards, in particul ar to protect the righ ts of defence of the 
party against whom the enforcement is soug ht. Views differed on the extent of such 
safeguards and on the place where such safegua rds should be availa ble (Member State of 
enforcement or Member State of origin). Specifi c concerns were expressed with respect to the 
abolition of the exequatur in defamation cases.  
2. OPERATION OF THE REGULATION IN THE INTERNATIONAL LEGAL ORDER  
With respect to the operation of the Regulation in the international legal order, there was a 
general opinion that multilateral negotiations at international level would constitute the most 
appropriate framework for regulation. Failing su ch framework, views diverged on the best 
way forward. While a number of stakeholders a nd Member States supported the extension of 
the jurisdiction rules to third State defendants, particularly with the ai m of ensuring access to 
justice before the courts in Europe, most stakeholders thought that  the recognition and 
enforcement of third State judgments should be left to a multilateral framework which would 
ensure reciprocity at international level.  
3. CHOICE OF COURT AGREEMENTS  
With respect to choice of court agreements, there was a large support from stakeholders and 
Member States to improve the effectiveness of  such agreements. Among the various ways to 
achieve that objective, preference was expressed for granting priority to the chosen court to 
decide on its jurisdiction. Such a mechanism woul d largely accord with the system established 
in the 2005 Hague Choice of Court Agreements, t hus ensuring a coherent approach within the 
Union and at internatio nal level were the European Union to decide to c onclude the 2005 
Convention in the future.  
4. THE INTERFACE BETWEEN THE REGULATION AND ARBITRATION  
With respect to the interface between the Regul ation and arbitration, while many stakeholders 
recognised the problem and supported future action, several arbitrators' associations expressed 
concern on the impact of any regu lation on the leading role of Eu ropean arbitration centres at 
world-wide level. Views diverg ed on whether the best way forw ard, i.e. either to actively 
promote arbitration agreements by avoiding parallel proceedings and abusive litigation tactics or to exclude arbitration more broadly from the scope of the Regulation. In any event, most 
EN 49   EN stakeholders expressed general satisfacti on with the operation of the 1958 New York 
Convention which should not be undermi ned by any Union action on the matter. 
EN 50   EN   
ANNEX III - SUMMARY OF LEGAL STUDIES CONDUCTED BY THE COMMISSION  
1. Study No. JAI/A3/2002/02 on making mo re efficient the enforcement of 
judicial decisions with in the European Union 
Following a tender issued by th e European Commission in 2002,  this final report83 
presented by Prof. Dr. B. Hess (Universit y of Heidelberg) in 2004 is based on 
comparative research conducted by national reports by then 15 Member States which answered to four questionnaires. On the ba sis of the so obtained detailed information 
on the practice of enforcement in the single Member States, the study analyses in an 
elaborate way the transparency of assets, garnishment, and provisional and protective 
measures in the Member States. It confirms  enforcement being the "Achilles heel" of 
the European Civil Judicial Area, sin ce the non-harmonised national enforcement 
systems, which also differ significantly in  the efficiency of judicial enforcement, 
create an obstacle to the equality of EU  debtors, the functioning of the Internal 
Market and generally to the right of a creditor to enfor ce a claim efficiently within 
the European Judicial Area . In conclusion the study st resses the need for Union 
action and proposes several measures to improve the enforcement of judicial 
decisions in the European Union, notably the creation of  a European order for the 
attachment of bank accounts, a European pr otective order to the same effect and a 
number of measures enhancing the tr ansparency of the debtor's assets. 
2. Study JLS/C4/2005/03 Report on the Appli cation of Regulation Brussels I in 
the Member States 
In September 2007 Prof. Dr. B. Hess, Prof. Dr. Pfeiffer (University of Heidelberg) 
and Prof. Dr. Schlosser (University of  Munich) presented this final report
84 which 
was asked by the Commission in order to prepare a report for the Commission on the 
application and on the future revision and improvement of the Brussels I Regulation 
(see Article 73 of the Brussels I Regula tion). The study provides a comprehensive 
analysis on the application of the Brussels I Regulation in 24 Member States on the basis of interviews, statistics and practical research in the files of the national courts by means of three questionnaires which we re distributed among national reporters. 
The report proposes several improvements concerning Articles 1, 2, 5, 15, 22 (4), 23 
of the Brussels I Regulation and the proceedings for recognition and enforcement of foreign judgments as well as Article  49 of the Brussels I Regulation.  
3. Study JLS/C4/2005/07 on Residual Jurisdiction As commissioned by the European Commission, this study
85 presented by Prof. 
Arnaud Nuyts in July 2007 provides a compara tive analysis of the issue of "residual 
                                                 
83 The final report is available in English only at 
http://ec.europa.eu/civiljustice/publications/docs/enforcement_judicial_decisions_180204_en.pdf. 
84 The final report is available in English only at 
http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf. 
85 The final report is available in English only at 
http://ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf. 
EN 51   EN jurisdiction" as it appears firstly in the a pplication of the Brussels I Regulation in 
Article 4 when a defendant is domiciled out side of the European Union, secondly in 
matrimonial proceedings with respect to married couples of Community citizens of different nationalities living in a third Stat e in Article 7 of the Brussels II Regulation 
and thirdly, in matters of parental responsibility, with respect to children of EU 
citizenship who are habitually resident outside the EU (Art icle 14 of the Brussels II 
Regulation). Based on national reports from 27 Member Stat es the study reflects the 
great diversity of the national rules of juri sdiction in force in the 27 Member States 
and proposes a harmonisation of the residua l jurisdiction presenting several options 
for Union action in this field. 
4. Study to inform an Impact Assessme nt on the Ratification of the Hague 
Convention on Choice of Court Agreem ents by the European Community 
This preparatory study
86 presented by GHK (an independent multi-discipline 
consultancy based in London) in Decem ber 2007 was undertaken with view of 
carrying out an Impact A ssessment on the ratification of the Hague Convention on 
Choice of Court Agreements by the EU. The Hague Conference on Private 
International Law adopted on June 30th, 2005 the Hague Convention on Choice of 
Court Agreements. A number of EU and inte rnational instruments already existed in 
this field, however, as pointed out by the study, not with the breadth of signatures 
and same scope as The Hague Convention could have.  The objectives of this 
assignment were to carry out an assessment of the direct and i ndirect impacts of the 
possible ratification by the European Uni on of the Hague Convention on the choice 
of court agreements and other policy opt ions that could a ddress the underlying 
problems. The study provides necessary in formation and assessments, notably the 
identification and elaboration of problems to be addressed, po licy objectives, added 
value of the Union level action and ri sks. The study concludes by presenting 
different policy options of which the ratification by the Union of the Hague 
Convention on choice of court with exclus ions under Article 21 with respect to 
copyright and related rights and insurance is recommended.  
                                                 
86 The final study is available in English only at 
http://ec.europa.eu/dgs/justice_home/evaluation/docs/final_report_071207.pdf. 
EN 52   EN ANNEX IV A - NUMBER AND COST OF EXEQUATUR PROCEEDINGS  
Table 1: Number of exequatur app lications and success rate (2009) 
Country No. 
Appl
icatio
ns Success 
rate % Country No. 
Appl
icatio
ns Success 
rate % 
Austria 244 93 Latvia 55 76 
Belgium*† 307 95 Lithuania 183 83 
Bulgaria 54 56 Luxemburg 244 95 
Cyprus 14 75 Malta 7 93 
Czech 
Rep 42 93 
Netherlands*378 95 
Denmark* 163 95 Poland 444 88 
Estonia 8 78 Portugal 205 93 
Finland 46 100 Romania 153 93 
France 1,176 99 Slovakia 18 83 
Germany* 1,638 88 Slovenia 238 93 
Greece* 500 95 Spain 887 93 
Hungary* 53 88 Sweden 380 90 
Ireland 127 93 UK* 1,202 93 
Italy 1,156 93 EU27 9,922 93 
Source: CSES study, Table 3.2 page 36. Notes: *= estimates based on sample of courts; † = 2008. Figures in 
italics are based on an extrapolation of the data for other countries. A detailed explanation of the methodology 
for scaling up the estimates to an EU27  level is provided in the appendices.  
Table 2: Estimated Cost of Exequatur Proceedings – 2009 (Euro) 
Country  Court 
Fees Legal 
fees 
(5h) Other 
fees Total 
fees  
Austria  200 1,736 850 2,786   
Belgium  30 1,013 850 1,893   
EN 53   EN Bulgaria  20 232  850 1,102   
Cyprus  395 579  850 1,824   
Czech 
Rep 50 434  850 1,334   
Denmark  80 1,736 850 2,666   
Estonia  20 1,013 850 1,883   
Finland  179 1,736 850 2,765   
France  500 1,736 850 3,086   
Germany  400 1,736 850 2,986   
Greece  10 1,013 850 1,873   
Hungary  15 1,013 850 1,878   
Ireland  110 2,605 850 3,565   
Italy  300-
500 2,605 850 3,855   
Source: CSES study, p. 42. 
Scenarios 
For the purposes of this study, estimates are based on two scenarios: firstly, a 
straightforward case in which exequatu r is granted without  any appeal or 
complication concerning the good order of the paperwork of the application, and 
enforcement is not contested; and, secondly, a more complex, appealed case with the 
need for documentation to be transl ated, legal representation, etc.  
Scenario 1  - a ‘straightforward’ case where a 25-page document is translated, court 
fees are paid in addition to lawyers’ ch arges for five hours. The average cost of 
exequatur proceedings is €2,208 (see Table above). On this basis, if all exequatur cases were ‘simple’, the to tal cost of exequatur case s in 2009 would have been 
around €22 million (9,922 cases x €2,208). 
Scenario 2  - a more complex or contested case , the total cost of exequatur can 
increase exponentially, especially because of  the extra costs of translation and above 
all, further lawyer's fees. In  order to develop this scenar io, the costs have been based 
on new research and on the report on the cost of civil judicial proceedings in the EU. This scenario is based on an estimated 100 pages to be translat ed (at an estimated 
cost of €30) and five days of lawyers’ fees  (lawyers’ fees in di fferent Member States 
EN 54   EN vary from €40 to over € 500 per hour87) giving an average cost for the more complex 
case of €12,791. If all exequatur cases were ‘complex ’, the total cost of exequatur in 
2009 would have been around €126 million (9,922 cases x €12,791).  
Table 3 summarises the total cost of ex equatur proceedings based on different 
assumptions for ‘simple’ and ‘complex ’ cases and a total of 9,922 cases in 2009. 
Table 3: Total Cost of Exequatur Pro ceedings based on different scenarios – 2009  
Scenario Total EU cost of exequatur  
100% of cases are ‘simple’ EUR 21,906,976  
25% of cases are ‘complex’ (Base 
Scenario)  EUR 47,893,943  
50% of cases are ‘complex' EUR 73,880,909  
75% of cases are 'complex' EUR 99,867,876  
100% of cases are ‘complex' EUR 125,854,842  
The study has found that an estimated 93% of applications are successful. On the 
basis that, at most, around 25% of cases are ‘complex’ and belong to the second 
scenario, the base scenario is that the total cost of exequa tur proceedings in 2009 
would have been around €48 million .  
Source: CSES study, Table 3.4 p. 44ss. 
                                                 
87 Lawyers' fees were calculated on the basi s of the country report (annexes) of the Study on the 
Transparency of Costs of Civil Judicial Proceedings in the European Union.  
EN 55   EN ANNEX IV B – EXAMPLE OF ITEMISED COSTS OF EXEQUATUR  
Example of a "straightforwa rd" case of obtaining exequatur for a French judgment 
over € 14,000 from the Appellate Cour t of Douai in Antwerp, Belgium 
frais de mise au rôle : € 52 traduction de l’arrêt du français au néerlandais : +/- € 500 (dans la requête en exequatur, il 
sera demandé que ces frais so ient mis à charge de XXX) 
signification de la décision accordant l’exequa tur (art. 42(2) Règlement) à XXX : +/- € 250 
droits d’enregistrement : nihil élection de domicile dans le ressort d’Anvers : nihil honoraires : € 875 (si le tribunal convoque la re quérante, ce montant devrait être révisé)
88 
Total  : € 2,145  
Documents à produire : expédition de l’arrêt ; certificat délivré par la Cour d’Appel de D ouai (sur base de l’article 54 du Règlement 
44/2001 ; ce certificat atteste entre autre que la décision française est exécutoire en France ; si 
la Cour d’Appel n’a pas délivré le certificat, deux solutions sont  possibles : soit solliciter à 
nouveau la Cour d’Appel pour qu’ elle délivre le certificat, soit demander l’exequatur en 
produisant une attestation démontrant que l’ar rêt de la Cour d’A ppel a été signifié) ; 
un mandat au nom de l’ensemble des requéra nts, qui couvre l’ex écution de l’arrêt ; 
mise en demeure de XXX 
                                                
 
88 In Belgium, lawyers' fees for an exequatur seem to vary between € 800 and € 2,000. 
EN 56   EN ANNEX V - LENGTH OF EXEQUATUR PROCEEDINGS  
1. First instance 
Member State Average duration  
Austria 1 week 
Belgium 1-4 months 
Cyprus 1-3 months 
Czech Republic n.a. 
England&Wales 1-3 weeks 
Estonia 3-6 months  
Finland  2-3 months 
France 10-15 days 
Germany 3 weeks 
Greece 10 days-7 months 
Hungary 1-2 hours  
Ireland 1 week or more 
Italy Milan: 20-30 days; Bolzano: 7-20 
days 
Latvia 10 days 
Lithuania up to 5 months 
Luxembourg 1-7 days  
Malta Exemplary single cases with 
procedures concluded within days up to three months  
Netherlands n.a. 
Poland 1-4 months 
Portugal n.a. 
Scotland n.a. 
EN 57   EN Slovakia n.a. 
Slovenia n.a. 
Spain n.a. 
Sweden 2-3weeks 
 
2. Appeal proceedings 
Member State Average duration  
Austria n.a. 
Belgium Liège: 1 year; Antwerp: 1 year; 
Brussels: up to 2 years 
Cyprus no information available 
Czech Republic n.a. 
England&Wales 1-2 months 
Estonia 6 months to 1-2 years  
Finland  6 months 
France no information available 
Germany 1-6 months; applications which 
obviously have no chance of success are immediately closed within a period of 1-2 weeks 
Greece 6-10 months 
Hungary 3 months (in mo re than 50 % of the 
cases)  
Ireland n.a. 
Italy about 2 years 
Latvia 2-6 months. 
Lithuania up to 2 months; 
Luxembourg 10-12 months 
Malta first hearing after 2 years; decision 
EN 58   EN 3-12 months later 
Netherlands n.a. 
Poland 1-3 months 
Portugal 4-5 months 
Scotland n.a. 
Slovakia n.a. 
Slovenia 2-12 months 
Spain 2-4 months 
Sweden n.a. 
 
EN 59   EN ANNEX VI – EFFECT OF THE RISK OF LITIGATION ABROAD ON CROSS BORDER TRADE AND 
POSSIBLE IMPACT OF ABOLITION OF EXEQUATUR  
Survey Evidence - Effect of the Risk of Litigation Abroad on Cross Border Trade 
and Possible Impact of Abolition of Exequatur 
• 51.4% of the mainly smaller businesses participating in the EBTP survey stated 
that the risk of a potential dispute was either ‘very important’ or ‘important’ in 
deciding whether or not to expand activ ities in other European countries (see 
Table 2.3) 
• 55.9% mainly larger companies that comp leted the key stakeholder questionnaires 
indicated that the risk of  litigation in another country  had either ‘some effect’ 
(32.4%) or a ‘major effect’ (23.5%) on thei r attitude to cross-border trade. A 
similar proportion of consumer organisati ons (51.4%) indicated that the risk of 
litigation had a discouraging effect on cons umers’ willingness to engage in cross-
border transactions (25.7% discouraged a bit’ and 25.7% ‘entirel y discouraged’).  
Figure 1: What effect (if any) does the risk of  litigation in another Member State in a cross-
border dispute have on your attit ude to cross-border trade? 
20.632.4
23.5 23.5
8.625.7 25.740.0
051015202530354045
No effect Some effect Major effect Don't know or not 
applicableBusinesses Consumer organisations 
 
• 39.4% of businesses and consumer or ganisations responding to the key 
stakeholder survey went on to say that th ey would be ‘a lot more inclined’ to 
engage in (more) cross-borde r commercial activities if  a judgment obtained in one 
Member State was enforceable in anot her Member State without additional 
procedures.  
Figure 2: To what extent would you be inclined to engage in (more) cross-border commercial 
activity if, in the event of a dispute, a j udgment obtained in one Me mber State would be 
enforceable in another wit hout additional procedures? 
EN 60   EN 39.4
26.7
21.1
2.84.25.8
051015202530354045
A lot more 
inclined Slightly more 
inclined Neutral Slightly less 
inclinedA lot less 
inclined Don't know or 
not applicable 
Source: CSES study, Text box 3.3, p. 61 
EN 61   EN ANNEX VII  – SUMMARY OF RELEVANT CASES OF THE COURT OF JUSTICE OF THE 
EUROPEAN UNION  
1. Erich Gasser GmbH v MISAT Srl; Case C-116/02, 9 December 2003 
In its decision the ECJ had to answer several questions submitted by an Austrian 
court which had been appealed by Gasser , after an Austrian Regional Court had 
stayed its proceedings according to Article 21 of the Brussels Convention (Article 27 
of the Brussels I Regulation), since it f ound that the decision of an Italian Court 
before which MISAT  had brought action against in an earlier point of time. Gasser  
held, that that the parties had conclude d a choice of court agreement conferring 
jurisdiction on the Austrian court. The ECJ decided that a national court whose 
jurisdiction has been  claimed under a choice of cour t agreement has to stay its 
proceedings according to Article 21 of th e Brussels Convention (Article 27 of the 
Brussels I Convention) until the court previ ously seised has declar ed that it has no 
jurisdiction, even if this ta kes an excessively long time.  
2. Brigitte and Marcus Klein v Rhodo s Management, Ltd.; C-73/04, 13 October 
2005 
The ECJ addressed the characterisation of  a complex contract under which the 
German married couple Klein became me mber of a club which gives access to 
several services in return fo r annual fees as a requiremen t for the purchas e of a right 
to use a holiday property on time share ba ses under the same contract (against 
separate payment) for nearly 40 years. Th e Court decided that such a contract, where 
the costs for the membership represent the major part of the to tal price cannot be 
considered a contract which has as its obj ect "…tenancies of immovable property" in 
the sense of Article 16(1)(a) of the Bru ssels Convention (Ar ticle 22(1) of the 
Brussels I Regulation) so that courts in the Member State where the respective 
property is situated do not have ju risdiction according to this Article. 
3. Allianz SpA, formerly Riunione Adri atica di Sicurtà SpA and Generali 
Assicurazioni Generali SpA v West Tanke rs Inc.; Case C-185/07, 10 February 2009 
The ECJ had to determine whether an anti-su it injunction granted in face of the 
existence of an arbitration agreement,  restraining from pursuing any other 
proceedings than arbitration and therefor e preventing a previously seised national 
court from examining itself if it has jurisd iction is reconcilable with the Brussels I 
Regulation. Allianz  had brought proceedings against West Tankers  t o  a n  I t a l i a n  
national court in order to recover a compen sation paid to a contracting partner of 
West Tankers , whereupon the latter started proceedings before a national court in 
London (which was also the chosen place for arbitration proceedings) seeking an 
anti-suit injunction. In res ponse to the submissions made by the English national 
court, the ECJ stated that despite the ar bitration exception in Article 1(2)(d) the 
Brussels I Regulation applies to  issues concerning the applicability of an arbitration 
agreement, including in particular its valid ity, when the subject matter of a dispute 
comes within the scope of the Brussels  I Regulation. An anti-suit injunction 
preventing a court of a Member State fr om determining itself whether it has 
jurisdiction is irrec oncilable with the Brussels I Regulation. 
EN 62   EN ANNEX VIII  – NATIONAL PROTECTIVE JURISDICTIONAL GROUNDS IN CONSUMER , 
EMPLOYMENT AND INSURANCE CONTRACTS  
Member 
State Rights for a 
CONSUME
R to bring 
proceedings 
at home 
 Right of 
EMPLOYE
ES to bring 
proceedings 
at certain 
defined 
places  Right of 
INSURED 
to bring 
proceedings 
at 
home 
Austria - + 91 92 - 
Belgium + 89 + 91 - 
Bulgaria + 90 + 91 - 
Cyprus - - - 
Czech 
Republic - - - 
Denmark + 89 - - 
England - - - 
Estonia + 90 + 91 92 - 
Finland  + 90 + 91 93 - 
France - + 93 + 
Germany - - - 
Greece - + 91 93 - 
Hungary + 89 + 91 - 
Ireland - - - 
Italy + 89 + 91 + 
                                                 
89 Jurisdiction subject to a territorial connection with that State.  
90 Without restriction.  
91 At the place where the employee carries out his work. 
EN 63   EN Latvia - + 91 92 - 
Lithuania  + 90 + 91 - 
Luxembourg+ 89 + 91 + 
Malta - - - 
Netherlands + 89 + 91 92 - 
Poland - - - 
Portugal - + 91 - 
Romania - + 92 - 
Scotland + 89 + 92 - 
Slovakia - + 92 + 
Slovenia - + 91 - 
Spain + 89 + 91 93 - 
Sweden - + 92 - 
 
                                                 
92 At the domicile/residence of the employee. 
93 At the place the contract was concluded. 
EN 64   EN ANNEX IX - MAIN CATEGORIES OF SPECIFIC NATIONAL  RULES ON JURISDICTION EXCLUDED 
BETWEEN MEMBER STATES (LISTED IN ANNEX I OF THE BRUSSELS I REGULATION  
Member 
State Citi
zen
shi
p 
of 
the 
part
ies Pre
sen
ce 
of 
the 
def
end
ant 
on 
terr
itor
y at 
the 
tim
e of 
ser
vic
e 
of 
clai
m Loc
atio
n 
of 
ass
ets 
of 
def
end
ant 
on 
the 
terr
itor
y Ca
use 
of 
acti
on 
or 
acti
viti
es 
in 
the 
terr
itor
y Do
mic
ile 
of 
the 
plai
ntif
f 
plai
ntif
f 
Austria   + 
96   
Belgium     + 
99 
Bulgaria + 94     
Cyprus    +  
Czech 
Republic + 95  + 
96   
Denmark   + 
96   
England  + + 96   
                                                 
94 Without further conditions. 
95 With restrictions.  
EN 65   EN 94 
Estonia   + 
96   
Finland  + 
95 + 
94 + 
96   
France + 
94     
Germany   + 
96   
Greece      
Hungary      
Ireland  + 
94    
I t a l y       
Latvia   + 97  + 98 
Lithuania    + 
96   
Luxembour
g + 
94     
Malta + 
95 + 
94    
N e t h e r l a n d s      +  99 
Poland  + 
94 + 
96 +  
Portugal    +  
R o m a n i a       
                                                                                                                                                         
96 Even if not related to the claim. 
97 Only if related to the claim. 
98 Only for claims relating to the return of a pers onal property or the reimbursement of its value. 
99 Repelled. 
EN 66   EN Scotland  + 
95 + 
96   
Slovakia   + 
97   
Slovenia + 
95 + 
95 + 
97   
S p a i n       
Sweden   + 
96