Proposal for a Council act establishing the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters in the Member States of the European Union
Date: 1997-11-26
Institutions: European Commission
Subjects: European convention, civil law, enforcement of ruling, judicial proceedings, jurisdiction

^mmimm*m 

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.11.1997 
COM(97) 609  final 

97/0339 (CNS) 

COMMISSION COMMUNICATION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

"Towards greater efficiency  in obtaining and enforcing judgments 
in the European Union" 

Proposal for a 
COUNCIL ACT 

establishing the Convention on jurisdiction and the recognition and 
enforcement  of judgments in civil and commercial matters in the 
Member States of the European Union 

(presented by the Commission) 

SUMMARY 

This Communication  has two  functions. 

1. 

Its  chief  aim  is to  facilitate  the  recognition  and  enforcement  of judgments  given  in 
the 
the  European  Union,  a  process  which 
Brussels Convention  of  1968,  extended  to  the  EFTA  States  by  the  Lugano 
Convention  of 1988. 

is  currently  governed  by 

The  Brussels  Convention  has  allowed  substantial  progress 
in  the  field  of 
enforcement  of foreign judgments passed  in other Member  States. Further  steps can 
still be made to  accelerate  and  simplify  the procedure  so as to  mould  it  more  to  the 
needs of the citizen and the firm by providing an ever quicker system of exchange, in 
particular within the internal  market. 

To  meet  this  objective,  the  proposal  contains  several  elements.  It  is  proposed  that 
checks by authorities empowered to make enforcement  orders be confined  to  formal 
checks  notably  on  the  basis  of  a certificate  issued  by  a  court  in  the  State  of  origin 
attesting  in particular  that  the judgment  to  which  it  relates  is enforceable.  It  is also 
proposed that the grounds  for  not recognizing a judgment  be revised; those  grounds 
will  be  reviewable  only  if pleaded  by the  defendant  opposing  enforcement,  and  the 
. burden  of  proof  will  be  on  him.  Proposals  are  also  made  for  decisions  authorizing 
enforcement  to  be  provisionally  enforceable  and  for  easier  provisional/protective 
measures.  Finally,  the  system  of  provisional  and  protective  measures  has  been 
reframed  with  the  accent  on  the  European  dimension  of  those  measures.  All  these 
proposals  are  incorporated  in  the  proposal  for  a  Convention  destined  to  replace 
Brussels  Convention. 

This  proposed  Convention  also  incorporates  provisions  to  take  account  of 
developments  in  economic  relations  and  certain  rulings  of  the  Court  of  Justice 
since the  signing  of  the  Brussels  Convention,  notably  as  regards  jurisdiction. 
There are two  proposals  for  new  Protocols  to  replace  those  annexed  to  the 
Brussels Convention (Annexes  1  and 2) and suggestions for a parallel revision of the 
Lugano  Convention  (Annex  3).  The  Commission  will  take  the  necessary  steps  to 
adapt  its  work  to  the  new  framework  brought  in  by  the  entry  into  force  of  the 
Amsterdam Treaty, in relation to civil judicial  cooperation. 

2. 

3. 

The  communication  has  the  added  purpose  of  prompting  comments  from  all  legal 
practitioners  and  interested  parties  on  a  series  of  considerations  going  beyond  the 
legislative  proposal.  The idea is to prompt  debate  on  a common  Union  approach  to 
certain aspects of national laws of procedure. 

It  is necessary  to  facilitate  the free  movement  of  judgments,  but  that  is  not  enough 
to enable the citizen  and firms to take full  advantage of the rights conferred  on them 
in the Union's  area.  The objective  is indeed  to ensure as globally as possible a  swift, 
efficient  and inexpensive access to justice. 

Problems for access to justice within the internal market due to legal/judicial borders 
being maintained have already come to light, notably in consumer litigation1. This is 
the area  where,  taking  into  account  the generally  small  sums in play, obstacles  to 
access  to justice  are  most  acutely  felt2.  These  difficulties  also  affect  commercial 
firms, particularly  small  and  medium-sized  companies,  by  acting  as  a  brake  on 
commercial activity3. 

It is therefore  timely to  provide the consumer  and commercial firm, along with all 
the European Union citizens, an improved  procedural  environment.  It  is proposed 
that  to start with a step-by-step approach be followed and that attention be focused 
on  essential  questions.  It  is  worth  reflecting  on  the  establishment  in  each 
Member State  of  a  rapid  procedure  for  the  payment  of  money  debts  but  also  of 
high-performance instruments for effective enforcement of judgments (concentrating 
initially  on  seizures  of bank  accounts).  The  effectiveness  of  enforcement  depends 
heavily on knowledge of the debtor's assets; consequently, thought also needs to be 
given  to  the  various  means  of  improving  transparency  in this  respect  and  to  the 
development of cooperation between enforcement authorities. 

These  two  aspects  together  contribute  to  greater  efficiency  in  obtaining  and 
enforcing judgments in the European Union. 

Any  person  wishing  to  make  comments  on  the  second  objective  of  this 
Communication is welcome to write before 30 April 1998 to: 

Mr Adrian Fortescue 
Task Force Justice and Home Affairs 
European Commission 
rue de la Loi/Wetstraat 200 
B-1049 Brussels 
Belgium 

Green  Paper  - Access  of consumers  to justice  and  the  settlement  of  Consumer  disputes  in  the  single 
market - COM(93) 576; over a hundred contributions were sent to the  Commission 
A  EUROBAROMETRE  poll,  carried  out  in  1991  revealed  that  difficulties  in  settling  disputes  form 
one  of  the  biggest  obstacles  to  the  development  of  purchases  of  consumer  !:oods  in  other 
Member States. 
Commission  Recommendation  of  12  May  1995  on  payment  periods  in  comiiicuji  transactions. 
OJ L  127.  10.6.1995  and  Commission  Communication  relating  to  that  Recomniciui:  ;  •;  o!  C  144. 
10.6.1995. 

3 

CONTENTS 

INTRODUCTION 

I. 

FREE MOVEMENT OF JUDGMENTS 

1.1  Revision of the Brussels and Lugano  Conventions 

1.2  Simplified  recognition and enforcement  procedure 

1.3  Provisional and protective measures 

II.  AVENUES  TO  BE  EXPLORED  FOR  AN 

IMPROVEMENT 

IN  THE 

ADMINISTRATION OF JUSTICE IN THE EUROPEAN  UNION 

II. 1  Procedure for obtaining a writ of execution in the state of origin 

11.2  Enforcement  of judgments 

11.3  Transparency regarding assets 

11.4  Exchange of information  between enforcement  authorities 

III.  PROPOSAL FOR A COUNCIL  ACT ESTABLISHING  THE CONVENTION  ON 
JURISDICTION  AND  THE  RECOGNITION  AND  ENFORCEMENT  OF 
JUDGMENTS 
IN  THE 
MEMBER  STATES OF THE EUROPEAN  UNION 

IN  CIVIL  AND  COMMERCIAL  MATTERS 

Annexes: 

1. 

Protocol No 1 

2. 

Protocol  No  2  drawn  up  on  the  basis  of  Article  K.3  of  the  Treaty  on  European 
Union,  on  the  interpretation  by  the  Court  of  Justice  of  the  Convention  on 
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial matters in the Member  States of the European Union 

3. 

Commission  suggestions regarding revision of the Lugano  Convention 

INTRODUCTION 

Purpose of this Communication 

1.  The free  movement  of judgments  in Europe is currently  secured,  in most  civil and 
commercial  matters4,  by  the  Brussels  Convention  of  1968,  drawn  up  on  the  basis  of 
Article 220(4)  of  the  EC  Treaty  and  subsequently  acceded  to  by  all  the  new 
Member States. It is a particularly complete Convention: it establishes rules governing the 
international jurisdiction  of  the  courts  of the  Member  States,  which  enables judgments 
given  to  be  recognized  downstream, 
together  with  strict  rules  for  cases  of 
non-recognition, and it provides for an enforcement  procedure that is not only uniform but 
also unilateral, at least at the initial stages. 

2. 
The Brussels Convention is indelibly linked to the whole Community process and is 
designed  to  complement  the  liberties  provided  for  in the  EC  Treaty  with  a  more  fluid 
system, for the circulation of judgments5. The Court's autonomous uniform  interpretation 
of its provisions proceeds from the  concept of non-discrimination and equal rights for all 
litigants in the Union. The Convention served as the basis for similar Convention between 
the Member States and the EFTA States, signed at Lugano on 16 September 19886. 

3. 
The  Brussels  Convention  is  to  date  the  only  general  instrument  of  judicial 
cooperation between the Member States. Community law has traditionally left  it up to the 
Member  States to  determine  how  their  authorities  and  courts  operate,  even  though  are 
heavily  involved  in  the  process  of  applying  Community  law.  There  is  no  European 
law-enforcement  area but rather a juxtaposition of national systems each configured  as an 
autonomous body of civil procedure. Their respective bodies of law are the fruit  of their 
respective historical backgrounds and vary widely in consequence. 

In this context, this Communication serves two purposes: 

•  It  presents  a  set  of  practical  proposals  to  further  facilitate  the  recognition  and 
enforcement  of judgments  in the European  Union. It  contains  a  proposal  for a 
Convention which takes into account recent developments  in economic  relations 
and  certain  rulings  by  the  Court  of Justice.  It also contains  proposals  for new 
Protocols to the Convention (Annexes 1 and 2) and the Commission's suggestions 
regarding  the  parallel  revision  of  the  Lugano  Convention  (Annex  3).  The 
proposals are based on art K3(2).c of TEU. Following the entry into force of the 
Treaty  of  Amsterdam  they  will  be  adapted  taking  into  account  the  new 
framework applicable to civil judicial cooperation. 

Some  matters  are  excluded:  But  there  is a  draft  Convention  on jurisdiction  and  the  recognition  and 
enforcement  of judgments  in matrimonial  causes (Brussels  II). q.v. 
Case C-398/92 \hmdaiul  Festner [1994] ECR 1-474 (judgment  given on  10 Fcbriian  1994). 
OJL3I9.  25.11.1988. p. 9. 

•  It  has  the  added  purpose  of  generating  debate  and  prompting  reactions  and 
suggestions  from  all 
circles  interested  in  possible  Union  action  to  secure 
equivalent access of litigants to efficient,  swift and inexpensive justice. There are 
no operational proposals in this second part, which is directed solely to gathering 
reactions  and  suggestions  from  all  interested  circles  on  the  avenues  offered 
for exploration. 

Background 

4. 
Since it  was  signed  in  1968, the Brussels  Convention  has undergone  only limited 
changes. There has been no general  review of its provisions, merely such adaptations as 
were  necessitated  by  the  accession  of  new  Member  States.  Following  accessions, 
certain provisions  of  the  Lugano  Convention  have  diverged  from  those  of  the 
Brussels Convention. Practical application of both has revealed the difficulties  inherent in 
some of them. 

5.  Despite  the  progress  achieved  as  a  result  of  the  Brussels  Convention,  the 
implementation  of  the  recognition  and  enforcement  procedures  takes  far  too  long  and 
costs  too  much.  The  costs  and  delays  are  added  on  to  those  already  inherent  in  the 
national procedures and are of such a nature as to influence the choice of forum  in favour 
of  the  country  where  enforcement  is  to  be  sought  so  as  to  avoid  the  registration 
(exequatur)  procedure.  These further  obstacles,  especially  in the event  of a small claim, 
can be a disincentive to litigation where enforcement  is to be sought against an adversary 
or  assets  in  another  country.  Moreover,  there  is  a  risk  that  assets  will  escape  the 
enforcement  procedure  if  it  is  delayed.  These  barriers  impede  the  free  movement  of 
judgments between Member States. 

6.  Apart from the question of free movement, private-law relations between individuals 
and economic operators, even where rules of Community  law underpin  them,  are  set in 
the  context  of  an  area  where  widely-divergent  procedural  systems  coexist  and 
render procedures  less  transparent  than  they  might  be,  while  procedures  vary  in  cost 
and  effectiveness. 

The procedures for lodging actions, the computation of time-limits, the rules of evidence, 
the burden  of proof, the impact  of an appeal, the enforceability  of the resultant  order  -
these are matters that escape the comprehension of the uninitiated. Rules of procedure are 
already  substantially  arcane in the purely national context; they  are even more  so in the 
cross-border context. In an integrated area, however, all ought to have easy access to the 
rules of the game and ought  to  know,  before  deciding to  embark  on proceedings, what 
their rights and duties are, what  formalities  are to  complied with, what the effect  of the 
resultant  documents  will  be,  what  effect  the  judgment  will  have  and  what  redress 
procedures are available, not to mention the rules governing enforcement  of judgment. 

On top of the non-transparency problem, there is the problem of varying costs7. In some 
Member States advocates charge high fees and expenses, and the costs of the registration 
(exequatur) procedure where they are chargeable are a further  barrier to access to justice, 
often constituting a frank disincentive8. 

National procedures, often opaque and costly to varying degrees, also vary in their degree 
of  effectiveness.  Certain  Member  States  have  established  special  quick  and  cheap 
procedures  that  more closely match the needs  of consumers  and  businesses.  Others, by 
contrast,  continue  to  preserve  more  complex  procedures  which  may  overburden  the 
courts and lengthen the time needed to obtain judgment. The duration of the procedures is 
often a blessing for "bad debtors". 

Content of this Communication 

7. 
The improvement  of the free movement  of judgments  given  by the  courts  of the 
Member  States  is  currently  under  discussion  in the  Council  in two  parallel  but  distinct 
contexts  -  the  revision  of the Brussels  and  Lugano  Conventions  and  proceedings  on a 
"European enforcement  order". 

8.  Work on the re-examination  of the Brussels and Lugano Conventions, now at the 
exploratory stage, originated in the fact  that in the Convention of 29 November  1996 for 
the  accession  of  Austria,  Finland  and  Sweden  to  the  Brussels  Convention  it  was  not 
possible to absorb the amendments (other than the purely technical ones) requested by the 
acceding  States.  Moreover,  the  Standing  Committee  of  the  Lugano  Convention  has 
repeatedly  called,  notably  at  its  third  and  fourth  meetings,  for  alignment  of  the 
two Conventions. 

The Member  States and the  Commission  share the view that  the opportunity  should be 
taken when this alignment  process is conducted  to  review  certain provisions of the two 
Conventions  in  the  light  of  the  growing  complexity  of  human  relations  and  business 
activity, trends in the relevant categories of litigation and the Court of Justice's case-law. 
There have already been discussions in the Council and the Lugano Standing Committee 
on  the  basis  of  written  submissions  from  the  Member  States  in  order  to  identify  the 
provisions that might be suitable for revision. 

9. 
In  1995 the Commission began thinking about whether the Member  States should 
preserve a procedure of registration of foreign judgments (exequatur) for enforcement and 
about the possible outlines of an enforcement  order valid without  restriction  everywhere 
without  special  procedures  in the  Member  States  - the "European  enforcement  order". 
The freedom of  movement  of judgments,  which ought  to  be the  corollary  of  the  other 
freedoms  of movement, has no practical reality in positive law: to cross a border and be 
enforced  in another Member State, any writ, be it judicial or not, needs a passport,  so to 

The Green Paper  on  Access to Justice for  Consumers  highlighted  that  the average cost  (court  and 
counsel  fees)  of  court  settlement  in  EC  litigations  for  a  claim  of  around  ECU 2 000,  goes  up to 
around ECU 2 500 for the plaintiff. 
This much is clear from the replies to the Commission's questionnaire in the preparatory work for the 
European  writ  of execution  and from its  study on  Cost of Judicial Barriers for  Consumers  in the 
Single Market, following up the Green Paper on Access to Justice for Consumers. 

7 

speak,  issued  by the  Member  State  of  enforcement  in  the  form  of  an  endorsement  for 
execution or the equivalent. 

At the same time several" Member States have shown their interest in this topic, which was 
incorporated  in  the  Council's  multiannual  work  programme  in  the field of justice  and 
home  affairs  cooperation9.  Finland  took  the  initiative  of  organizing  a  seminar  on  it  at 
Helsinki  in  March  1997  at  which  a  large  number  of  experts  from  the  academic  and 
professional  worlds  and from national  government  departments  came together10.  Under 
the Dutch Presidency there have been several meetings in the Council. 

The  need  for  a  uniform  procedure  for  obtaining  a  writ  in  the  State  of  origin  as  a 
precondition for the elimination of the registration (exequatur) procedures was a key point 
made  in  these  various  discussions,  which  explains  the  reference  to  a  "European 
enforcement  order".  It  has  been  ascertained,  however,  that  establishing  a  uniform 
procedure in the State of origin and abolishing the registration (exequatur) procedure are 
two  distinct  questions,  the  solution  to  one not  being  dependent  on  the  solution  to  the 
other.  It has also emerged that full  abolition of the registration  (exequatur)  procedure is 
inconceivable, if only because of the wide procedural divergences between Member States 
as  regards  enforcement.  The  object  is therefore  to  simplify  and  lighten  the  registration 
procedure as far as possible rather than to abolish it. 

10.  The  question  of  provisional  and  protective  measures  has  also  been  raised  in  the 
preparatory  work.  The need  for  them to be put in place quickly  is particularly  acute in 
cross-border litigation, on account ofthe time inevitably taken by proceedings abroad, i.e. 
proceedings  involving  the  registration  (exequatur)  procedure  on  top  of  national 
proceedings, but also of the very great variety of different  legal instruments in use in the 
Member  States.  The Brussels  Convention  deals with these  measures  only as a marginal 
matter, and special rules are accordingly needed both as regards jurisdiction to order them 
and the conditions for giving effect to them. 

11.  The draft  proposal included in this Communication  does not set out to narrow the 
current wide divergences between national procedural laws. 

Even so, the Commission believes that a supplementary step forward  should be taken, and 
that a debate should be launched on the substance of the problem of litigation in Europe, 
not just in terms of cooperation between courts but in much broader terms of equal access 
to  rapid,  efficient  and  inexpensive  justice.  The  Commission  intends  to  have  legal 
practitioners and all other interested circles closely associated with its work on this. 

Security  as to  the  law  and trust  in judicial  institutions  are  important  conditions  for  the 
development  and sound operation ofthe  Community's frontier-free area. Hence the need 
to  explore  how  that  security  and  that  trust  can  be  enhanced  in  a  more  horizontal 
perspective  for  the  benefit  of  all  citizens  and  businesses,  subject  always,  of  course,  to 
compliance with the principles of subsidiarity and proportionality. 

9  OJC 319, 26.10.1996. 
10  To  feed  its  own  reflections  and  enrich  these  debates,  the  Commission  widely  circulated  a 
questionnaire  in  preparation  for  the  Helsinki  seminar;  this  went  to  European  associations 
representing  professional  circles  (notaries/solicitors,  advocates,  the  judiciary,  bailiffs  and  court 
registrars). The replies were collated for the seminar. 

12.  This  Communication  accordingly  contains  a  second  part  describing  the  difficulties 
generated  by  divergent  national  procedural  legislation  and  opening  the  debate  on  a 
number of  additional  questions  which  the  Commission  would  like  to  see  dealt  with  in 
greater depth. 

• 

• 

• 

• 

The first  is the  procedure  for  obtaining  an  enforcement  order  in the  State  of  origin 
(II. 1).  The  principle  of  equality  of  armaments,  the  speed  with  which  the  business 
world  operates  and  the  consequent  risk  that  the  debtor's  assets,  on  which  the 
creditor's  action is targeted,  will disappear,  all militate in favour  of litigants'  having 
access  to  procedures  that  have  comparable  results  in  terms  of  time-consumption, 
cost  and  effectiveness.  The  Commission  has  concluded,  therefore,  that  special 
attention must initially be paid to the possibility of establishing in all Member  States 
a rapid procedure for money claims. 

This  Communication  also  goes  into  the  question  of  enforcement  proper  (II.2). 
A gradual approach  is required.  It is therefore  proposed  that  reflections  be  confined 
initially to the practice of  seizure of bank  accounts  so that  the principles  underlying 
the procedure  can be  ascertained  and  common  guidelines  for  a European  principle 
can be devised. 

Closely linked  to  enforcement  procedures  is the  important  topic  of transparency  of 
assets  (II.3).  The  Commission  considers  that  litigants  in  the  Union  ought  to  have 
comparable  facilities  at  their  disposal  in  this  respect  and  proposes  that  thought  be 
given to a possible generalized  application  ofthe  'assets declaration'  principle in use 
in some Member States. 

Lastly,  claims  have  increasingly  to  be  recovered  abroad.  International  cooperation 
should  make  recovery  easier.  The  Commission  therefore  suggests  enhancing  such 
cooperation,  possibly  via  an  information  exchange  scheme  between  enforcement 
authorities  in  the  Member  States,  subject  to  compliance  with  their  legislation  and 
practice, particularly with regard to data-protection (II.4). 

The  prospects 

13.  A major  objective ofthe  new treaty is to develop and maintain the Union as an "area 
of freedom,  security and justice". In order to create such an area, civil judicial  cooperation 
has been transferred  to a new chapter ofthe  EC Treaty relating to policies pursuant  to this 
objective  and  now  appears  in  art.  73M.  This  article  allows  notably  for  measures  to  be 
taken  to  eliminate  obstacles  to  the  smooth  working  of  civil  rulings  by  favouring 
compatibility  between  the  rules  of  civil  procedure  applicable  in  Member  States.  These 
measures  are  linked  to  the  situations  of  trans-border  incidents  and  the  necessity  for  the 
smooth  working  of the internal  market.  The Amsterdam  Treaty thus bears witness  to  the 
Member  States'  awareness  of  the  extreme  importance  of  this  field  for  European 
integration and for the efficiency  ofthe  internal market in particular. 

It  will offer  European  citizens  and  businesses the environment  they need  on  a  procedural 
level, for actions in national courts. 

The  Brussels  Convention  and  the  rules  relating  to  civil  procedure  are  of  ever  increasing 
importance  in  relations  between  citizens  and  businesses  in  an  increasingly  integrated 
internal  market,  to which the rapid  development  of electronic transactions  will  add  a new 

dimension  in the  years  to  come.  It  seems  essential  to  amplify  the  functional  character  of 
rules in the future,  particularly those regarding the enforcement  of judicial  rulings on civil 
and commercial  matters.  This need  comes in part from an  increasingly  narrow  integration 
process in the internal  market  and  partly,  from  the  implications  raised  by the  prospective 
future  enlargement  ofthe  Community. 

It  is  in  the  light  of  this  double  prospect  of  tighter  integration  and  enlargement,  that  the 
Commission  would  like  to  stimulate  a  debate  on  cooperation  in  civil  matters.  The 
Commission feels that it is most appropriate to present its initiatives in stages. It proposes, 
firstly,  to  improve  the  circulation  of judgments  in  the  framework  ofthe  existing judicial 
system  and  to  initiate  reflection  on  other  aspects  of  the  problem  as  from  now.  While 
waiting  for  the  new  Treaty  to  enter  into  force,  the  proposals  made  are  based  on  the 
current judicial  system,  while reflecting  thoroughly  on the fields covered  by this initiative. 
It  should be. noted  that the Amsterdam  Treaty will allow the  Convention  instrument  to be 
replaced  by  Community  instruments  with  the  institutional  effects  this  entails,  without 
requiring a ratification  process on the part  of the Member  States  and  potential  candidates 
for  enlargement.  The  Commission  reserves  its  position  to  take  new,  complementary 
initiatives on the subjects reflected  upon, or to present,  at the appropriate time, a proposal 
within the framework ofthe  new Treaty, consistent  with transforming  the Convention  into 
a Community instrument,  taking care, where possible, to maintain the parallel between  the 
future  Community  instrument  and  the  Lugano  Convention  which  extends  the  Brussels 
Convention rules to the Member States ofthe  AELE. 

I. 

FREE MOVEMENT OF JUDGMENTS 

14.  Any new efforts  to improve the free movement of judgments in civil and  commercial 
matters  in  the  European  Union  will  have  a  direct  impact  on  the  Brussels  and  Lugano 
Conventions.  The  Commission  considers  that  the  aim  of  facilitating  the  Union-wide 
recognition  and  enforcement  of judgments  given  in any Member  State  should  be  pursued 
by means of a general revision ofthe  Conventions. 

1.1.  REVISION OF THE BRUSSELS AND LUGANO  CONVENTIONS 

15.  The  Commission  shares the Member  States'  view that  the  current  revision  exercise 
cannot be allowed  to generate  a major  upheaval  in the Conventions  or modify  the general 
structure and the underlying principles that have proved their worth. 

The  object  of  the  exercise  is  rather  to  align  the  provisions  of  the  two  Conventions  as 
closely  as  possible,  notably  following  the  changes  made  by  the  most  recent  accession 
Conventions11.  It  is also  agreed  that  certain  provisions  may  be re-assessed  in the  light  of 
practical  experience  and  of  interpretations  put  on  them  by  the  Court  of  Justice.  After 
well-nigh  thirty years'  practical  operation,  it has been found  that  Title II (jurisdiction)  has 
been the most  difficult  to  interpret  and  apply.  In this context,  the Commission  proposes a 
rearrangement  of  these  jurisdictions.  The  point  is  to  enhance  certainty  as  to  the 
mechanisms and effectiveness  by providing for  autonomous  definitions  of certain  concepts 
in place of  a general  renvoi  to  the  concepts  of  national  law  (e.g.  the  definition  of  'court 
first seised'  in relation to lis pendens and the concept  of'provisional,  including protective, 
measures'  {cf.  Chapter  II).  Finally,  the  new  Convention,  like the Brussels  Convention,  is 

11  Portugal  and  Spain  in  1989. Austria,  Finland and  Sweden  in  1996. 

10 

part  of the acquis  of Community  legislation;  it  must  therefore  be in the Act  of  Accession 
of new Member  States  and  enter  into  force  by the  appropriate  procedure.  It  is  therefore 
proposed to include provisions to this  effect. 

1.2.  SIMPLIFIED RECOGNITION  AND ENFORCEMENT  PROCEDURE 

16.  The  most  radical  solution,  and  the  most  compatible  with  the  concept  of  a 
frontier-free 
law-enforcement  area,  would  be  to  abolish  the  registration  (exequatur) 
procedure  purely  and  simply. National  courts  being European  courts, judgments  given in 
other Member  States would  enjoy  the  same status  as judgments  given "at  home" and  be 
enforceable  in the  same way, with  no  special  review  procedures  and  formalities  attaching 
to the foreign judgment. 

17.  But the vast majority  of those  consulted  felt  this was premature.  To be  enforceable, 
a  foreign  judgment  needs  some  kind  of  "passport"  so  that  it  can  be  given  the  same 
treatment  as a judgment  given at home. One ofthe  most commonly cited arguments is the 
concept  of  imperium,  the  power  of  governance,  underlying  the  enforcement  of  a 
judgment.  This  is  a  privileged  expression  of  national  sovereignty.  The  other  argument 
proceeds  from  the  substantial  divergences  between  the  Member  States'  procedural 
systems  as  regards  the  definition  of  an  enforcement  order,  the  procedures  for  enforcing 
judgments  and,  above  all, the  status,  powers  and responsibilities  of enforcement  officials. 
The general view is that  there will have to  be approximation  of these definitions,  statuses 
and procedures before  radical change can be introduced. 

18.  On  the  other  hand,  even  if  there  are  major  barriers  to  a  European  enforcement 
order circulating  uncontrolled  between  Member  States,  the  Union  has  the  possibility 
of other,  more  immediately  accessible  facilities.  Considerable  progress  towards  the 
free  movement  of  enforcement  orders  could  be  made  by  simplifying  the  recognition  and 
enforcement  procedures. 

In the Council  the  question  arose whether  the changes  should  be made by amendment  of 
the  relevant  provisions  of  the  Brussels  Convention  or  whether  it  might  be  preferable  to 
establish  a  separate  instrument  applying  only  to  money  judgments.  The  Commission 
believes  that  re-examination  of  the  Brussels  Convention  offers  the  best  context  in  the 
present  situation.  For  one thing, the  new recognition  and  enforcement  scheme is to  apply 
to  all judgments  in  civil  and  commercial  matters,  and  not  just  to  judgments  ordering 
payment of a sum of money. There is no legal reason why the new arrangements  should be 
specifically  linked to the pecuniary or non-pecuniary nature ofthe  claim. 

Moreover,  the  creation  of  a  separate  instrument  would  have  serious  disadvantages  and 
this  solution  may  well  turn  out  to  generate  more  problems  than  are  to  be  solved.  The 
immediate  impact  of  a  new  instrument  would  be  to  deprive  the  mechanism  of  the 
Convention  ofthe  bulk  of its potential  scope despite the intention  declared  in the revision 
exercise  of  not  fundamentally  calling  into  question  the  context  of an  instrument  that  is a 
central  pillar  of 
in  Europe.  Superimposing 
two competing  schemes would  have obvious disadvantages in practice, primarily for  users 
(the judiciary,  advocates,  etc.),  who  are already reasonably  familiar  on the whole with the 
general  scheme  of  the  Brussels  Convention  and  would  face  acute  problems  of 
interpretation  in relation to hybrid judgments. 

the  free  movement  of  judgments 

19.  The  proposed  approach  proceeds  from  the  generally  accepted  fact  that  the 
involvement  ofthe  authorities ofthe  State of enforcement  could be simplified  and that the 
endorsement  for  enforcement  or the  registration  of  a judgment  could  be  reduced  to  little 
more than a formality.  The frequency of appeals from enforcement  decisions  given  under 
is  negligible. 
the  Brussels  Convention's  recognition  and  enforcement  procedures 
The question  is  therefore  whether,  given  the  endemic  overload  of  the  courts  in  all  the 
Member  States, the current  registration  procedure,  even  at  the early  stages,  should  retain 
its  "judicial"  character.  There  is  no  wish  to  interfere  with  the  responsibilities  of  the 
Member  States  for  designating  the  authorities  responsible  for  the  formality,  but  it  would 
be most helpful  if the Member  States designated  in pursuance  ofthe  grant  of  enforcement 
other authorities than the courts themselves (public officials,  registrars, etc.), although any 
appeals  against  the  granting  of  enforcement  should  still  be  of  a  judicial  nature.  The 
immediate advantage of this would  be that  it would  relieve the already  overloaded  courts 
of  the  burden  and  bear  clear  witness  to  the  changed  nature  of  the  enforcement  order 
(or whatever other formality  is chosen), in the initial stages ofthe  procedure.  On the  other 
hand  it  may well be worth  designating  a  court  in those  Member  States  where  the  actual 
enforcement  of judgments  requires  the  prior  authorization  of  a  court.  This  would  not 
express any form  of distrust vis-à-vis foreign  courts but merely the wish to pool the  power 
to  declare  foreign  judgments  enforceable  and  order  their  enforcement  in  a  single  pair 
of hands. 

Regarding  enforcement  proper,  the  Commission's  proposals  proceed  from  the  principle 
that  the formality  should  be virtually  automatic  and involve no  more than  a formal  check 
on  the judgment,  with  no  review  of  the grounds  for  opposing  enforcement.  It  would  be 
facilitated  if  the judgment  to  be  enforced  were  accompanied  by  a  uniform  multilingual 
certificate  issued  by  the  authorities  of  the  State  of  origin  unequivocally  establishing  the 
conditions required  for  registration  for  enforcement  (Annex to the Convention).  The  onus 
would  be on the person  against  whom  the judgment  has  been  registered  for  enforcement 
to  contest  it  and  furnish  evidence  that  one  of  the  Convention's  remaining  grounds  for 
opposing enforcement  was available. 

20.  The  changes  to  the  procedure  would  have  to  be  accompanied  by  revision  of  the 
grounds  on  which  recognition  of  a  foreign  judgment  may  currently  be  opposed 
(Article 37a),  and  in  particular the public policy ground,  which does not  sit well  with  the 
European integration process or the civil and commercial matters concerned here. There is 
also the  question  of the  defendant  being duly  served  and  given  sufficient  time  to  prepare 
his  defence,  where  the  current  wording  gives  the  "bad  payer"  a  valuable  means  of 
escaping enforcement.  Finally, in the current  state ofthe  legislation  in the Member  States, 
there  is  no  obvious  need  to  preserve  the  right  to  oppose  enforcement  where  the 
Member State violates the rules of private international law relating to personal  status and 
capacity, matrimonial property schemes and succession. 

To avoid  purely dilatory appeals, the Commission considers that the judgment  authorizing 
enforcement  in another Member State should be declared provisionally enforceable, just  as 
the original judgment  is enforceable.  But safety nets are needed to ensure that  there are no 
irreparable consequences of provisional enforcement  (Article 36). 

21.  The Commission proposes  substantial  changes to the mechanism  currently  governed 
by the Convention along these lines, but does not exclude the possibility that this might be 
but  a  step  along  the  road  towards  the  pure  and  simple  abolition  of  the  registration 
(exequatur) procedure  in due course. 

12 

1.3.  PROVISIONAL AND PROTECTIVE  MEASURES 

22.  Provisional  and  protective  measures  are  of  vital  importance  in  the  context  of 
recognition and enforcement  of foreign judgments. The negative consequences  of inherent 
procedural  delays  can  be  alleviated  or  offset  if  the  State  applied  to  takes  a  favourable 
attitude  to  such  measures.  But,  while  throughout  the  Union  there  has  recently  been  a 
considerable  expansion  in  such  measures,  reflecting  the  need  for  quick  action  in  the 
business  world  and  thus  for  palliatives  for  the  excessive  slowness  of  the justice  system, 
this  has  occurred  on  an  autonomous  and  divergent  basis.  The  Brussels  Convention 
contains  only  two  provisions  relating  to  provisional  measures,  Articles 24  and  39,  and 
they merely refer to the domestic laws ofthe  Member  States for their application. 

23.  A  comparative  survey  of  national  legislation  reveals  that  there  are  virtually  no 
definitions  of  provisional/protective  measures  and  that  the  legal  situations  vary  widely. 
The only  convergence  that  can  be  ascertained  is between  the  function  of  such  measures, 
which  is to  secure  the  subsequent  enforcement  of judgments  on  the  substance  of  a  case 
(or their anticipated  enforcement),  organize factual  situations or the parties' rights pro tern 
and safeguard  all interests affected  pending settlement ofthe  dispute. 

But  the  gap  between  Member  States  widens  when  it  comes  to  measures  anticipating 
the final judgment  on the  substance,  with  the  risk  that  proceedings  on  the  substance  will 
become  futile  and  that  it  promotes  a  bending  of  the  usually  applicable  rules  of 
jurisdiction (e.g. the "référé-provision"  in French law and the "Befriedigungsverfugung"  in 
German law). The recourse to  interlocutory  proceedings for  such anticipatory  measures is 
unevenly  distributed,  as certain Member  States  refuse  to  allow the courts  in  interlocutory 
proceedings any power to anticipate the final outcome. 

24.  There are quite considerable differences  in the terms on which such measures, which 
are  normally  directly  enforceable,  may  be  ordered.  Although  the  legislation  of  the 
Member  States  generally  makes  this  conditional  on  the  probability  of  the  alleged  claim 
("fumus boni juris'")  and  ofthe  risk  of  non-recovery  ("periculum it?  mora'),  the  urgency 
factor is more and more often  interpreted  loosely.  There are also substantial  differences  as 
to the kind of assets that may be affected,  the type of measures that  may be taken  and  the 
relationship  between  the  proceedings  in  an  interlocutory  action  and  the  proceedings  on 
the substance. 

Formal  aspects  are  also  divergent.  Many  Member  States  subject  protective  measures  to 
prior authorization by the court, in some cases a special court  and in some not, whereas in 
others  this  is  sometimes  not  necessary.  Moreover  the  unilateral  nature  of  the  action 
(heard ex parte)  is  the  rule  in  a  good  number  of  Member  States,  whereas  in  others  the 
adversary  procedure 
in  the  absence  of  specific 
is  mandatory  from 
considerations of urgency,  so that nobody can be taken by surprise. 

the  outset, 

25.  The  Brussels  Convention  does  nothing  to  solve  this  fragmentation.  Article 24 
merely establishes the principle of jurisdiction  by way of derogation from the general  rules 
on jurisdiction  as to  substance, without  specifying  those for  whose benefit  this jurisdiction 
is  conferred  and  above  without  defining  provisional/protective  measures.  To  fill  in  the 
gap, the Court  of Justice has had to  interpret  the provisions in question.  In Reichert II12, it 

12  Case C-261/90  f!992|  ECR  1-2149. 

laid the foundations  for  a uniform  autonomous  definition  and  specified  how freedom of 
movement  of such judgments was to be secured.  As for  Article  39, the Court  of Justice 
usefully  held  in  Capelloni  and Aquilini v Pelkmans13  that  the  party  applying  for  and 
obtaining  authorization  for  enforcement  may,  under  the  Article  and  during  the  period 
allowed,  have  protective  measures  executed  without  needing  specific  authorization  to 
do so. 

26.  The Commission  considers it necessary to  continue along the path mapped  out by 
the Court  of Justice and to  launch  debate in the Union  on ways and means of securing 
equivalent  protection  for  litigants  everywhere.  Given  the  variety  of  legal  systems  and 
of measures  available  in  them,  the  debate  will  have  to  focus  on  the  functions  served 
by provisional/protective  measures,  the  minimum  conditions  to  be  satisfied, 
the 
adversary procedure  requirement,  the  enforceability  of  the  measures  and  possible 
redress procedures. 

27.  The Commission  proposes  that  "provisional  and  protective  measures"  be given a 
uniform  definition.  It  is  suggested  that  the  guiding  principles  posited  by  the  Court  of 
Justice in Reichert II be taken as inspiration14. 

28.  The Commission further proposes that there be a clear rule conferring jurisdiction to 
order  provisional/protective  measures  on  the  courts  of  the  Member  State  in  whose 
territory  they  may  effectively  be executed,  even  if the  courts  of  another  Member  State 
have jurisdiction to  determine the substance ofthe  case (Article  18a). The basis for this 
new rule of jurisdiction  is the urgency  of provisional measures, which is not  compatible 
with  a  registration  (exequatur)  procedure.  This  rule  would,  of  course,  be  without 
prejudice to the natural jurisdiction ofthe court hearing the substance ofthe case to order 
provisional measures also15. 

Where  a  non-enforceable  judgment  has been  given  on  the  substance  or  an  enforceable 
judgment has been given but not yet declared enforceable in the Member State applied to, 
such judgment must permit protective measures to be taken in the State in which they may 
be  executed16.  The  judgment  on  the  substance  is  automatically  recognizable  under 
Article 26  of  the  Brussels  Convention,  on the  basis  of  an  international  presumption  of 
regularity,  and  must  have  the  status  of  "European  provisional  enforcement  order" 
(cf. Article  27). 

Lastly,  where the  enforceable judgment  on the  substance  is declared  enforceable  in the 
State  applied  to,  then,  without  prejudice  to  provisional  enforcement  of  the  judgment 
authorizing enforcement,  this judgment automatically entails full  authorization to take the 
provisional/protective  measures  allowed  by  the  law  of  that  State.  This  does  not 
presuppose  that  the  judgment  authorizing  execution  has  been  first  served  on  the 

13  Case  119/84 [1985] ECR 3147. 
14 

It  will  be  for  the  Court  to  determine  whether  measures  that  anticipate  the  final  outcome  are  within 
the definition.  Question 
ruling  No  C-46/7  of  1996,  Case  C-391/95 
Van Uden Maritime  BVv  Firma De co-Line, Peter Determann  KG. 

for  preliminary 

15  But  there  are  limits  to  the  recognition  of  such  measures:  see  Case  125/79  Denilauler  v  Couchet 

[1980] ECR  1553. The measure will not be recognized  if taken ex  parte. 

16  E.g.  Article 68  of  the  French  Civil  Procedure  (Enforcement)  Act  (9.7.1991)  and  Article  1414  of  the 

Belgian Judiciary Code. 

14 

defendant,  and the measures remain in force until expiry of the period allowed for appeal 
or until judgment has been given on the appeal (cf. Article 36). 

29.  All  the  suggested  amendments  are  incorporated  in  the  draft  convention  at 
Annex l.For  convenience,  this  proposed  convention  follows,  as  far  as  possible,  the 
structure  and numbering of the Brussels Convention  and only includes the provisions in 
which a change with regard to the Brussels Convention is envisaged. 

n.  AVENUES  TO  BE  EXPLORED  FOR  AN  IMPROVEMENT  IN  THE 

ADMINISTRATION OF JUSTICE IN THE EUROPEAN UNION 

30.  Because  of  the  heterogeneity  of  national  procedural  systems,  litigants  in  the 
European Union are not on an equal footing.  They do not have access to instruments of 
equal  performance  levels  whereas  equality  of  citizens  and  business  partners  in  an 
integrated area presupposes equal access to the weapons ofthe law. Attention has focused 
on this  divergence between  law  and  reality that  flows from the preservation  of judicial 
frontiers  in the Union for  several  years, and the Community  institutions  have expressed 
awareness of it17. The Court  of Justice itself has repeatedly had occasion to declare that 
the  availability  of  redress  procedures  where rights are  violated  by  an  infringement  of 
Community law is a fundamental  obligation ofthe Member States, flowing inter alia  from 
Article 5 ofthe EC Treaty18. 

31.  The institutions'  awareness has been echoed  in a number of pieces  of Community 
legislation. The Council has enacted  several instruments under Articles 66,  100 and  100a 
ofthe  EC Treaty,  some of them containing special rules, rules on conflict  of jurisdiction 
or,  more rarely,  rules on conflict  of  laws, and the  harmonization  of  substantial  rules of 
procedure has not been excluded in specific cases.19 This technique is limited, however, by 
the very purpose it is supposed to serve. The work launched thus far on the harmonization 
of national conflict rules or substantial procedural rules has suffered  from being developed 
in a sectoral context. 

32.  Without  prejudice  to  possible  new  proposals  in  specific  areas  where  they  are 
needed,  the Commission  wishes  to  pay special  attention  to  establishing  as horizontal  an 
approach as possible for the future which will be adopted following the entry into force of 
the Treaty of Amsterdam taking into account the new provisions relating to civil judicial 
cooperation  (art.  73M).  The complexity of the problems that  arise, and the deep-rooted 
situation of procedural  law in national traditions,  suggest that measures  should  be taken 
on a progressive,  prudent  and proportionate basis. Particular  attention  must be given to 
maintaining  a balance  of the  respective  parties'  interests,  especially  with  regard  to  the 
rights of the  defence.  The  Commission  accordingly  wishes  attention  to  focus  on  those 
points of divergence whose maintenance it considers to be prejudicial to the harmonious 
administration of justice in the Union. These have already been looked into in the course 

17  Notably  in  the  Green  Paper  on  Access  to  Justice  for  Consumers  and  the  settlement  of  consumer 
disputes (COM(93) 576) and in the Strategic Programme for the Internal Market (COM(93) 256). 

18  Cases ... 
19  Examples are Directive 84/450/EEC on misleading advertising. Directive 93/13/EEC on unfair terms 
in  consumer  contracts,  Directives  88/357/EEC,  90/619/EEC,  92/49/EEC  and  92/96/EEC  on 
insurance, Directive 96/71/EC concerning the posting of workers in the framework  of the provision 
of services. 

15 

of Council work on the "European enforcement  order", which is evidence of the need for 
and an awareness of a possible common Union approach. 

H.l.  PROCEDURE  FOR  OBTAINING  A  WRIT  OF  EXECUTION  IN  THE 

STATE OF ORIGIN 

33. 
In view ofthe  growing needs of both ordinary citizens and economic operators, the 
general introduction  and approximation  of rapid procedures for the payment  of sums of 
money merits consideration as a matter of priority. 

In  1994 a study20 was made at the Commission's request as part ofthe  Community 
34. 
strategy for  promoting enterprise and improving the business environment.  It found  that 
operators feel the legal framework in the Member States is uneven in its deterrent  effect 
on bad debtors and may even work to their financial  benefit  in many Member  States by 
affording them a certain degree of impunity. It also revealed that some SMEs are reluctant 
to engage in international trade because they know that it will be much more difficult  to 
recover debts abroad than at home in the event of non-payment. 

35.  The  Commission  already  highlighted  the  lack  of  a  suitable  legal framework in 
connection  with  the  proper  functioning  of the  single market,  in its  recommendation  of 
12 May  1995 on payment  periods in commercial transactions21.  Believing that  creditors 
affected  by late payments should  have access to  rapid,  efficient  and inexpensive  redress 
procedures, the Commission requested the Member States to improve the effectiveness  of 
legal  procedures  for  the  settlement  of  claims for  payment  and  to  simplify  methods  for 
recovering  uncontested  cross-border  debts.  But  in  its  report  of  9 July 1997  on  an 
evaluation ofthe  effects  ofthe  1995 Recommendation22, it felt bound to conclude that the 
situation  had  developed  very  little  in  the  Member  States  and  that  small  businesses 
remained reluctant to engage in export trade. 

36.  The  Commission's  approach,  which  won  broad  support  in  Parliament23,  rests  on 
the fact  that  a  comparison  of  national  systems  shows  considerable  disparities.  The  last 
twenty  years  have  seen  the  emergence,  in  varying  degrees,  of  a  range  of  specific  or 
summary  procedures  in  the  Member  States.  Their  proliferation  reflects  not  only  the 
Member States' desire to tackle the chronic backlog of court cases and prevent the courts 
from becoming clogged up but also their differing priorities on effective judicial protection 
for particular categories of rights or litigants. 

"European Late Payment Survey" - Intrum  Justifia. 

20 
21  OJ  L  127,  10.6.1995; cf.  Communication  on  the  Commission  Recommendation  on  payment  periods 

in commercial  transactions: OJ C  144,  10.6.1995, p. 3. 

22  OJC  216,  17.7.1997, p. 10. 
23  OJC  211,22.7.1996. 

16 

37.  Besides procedures for small claims or more specifically for consumer debts, several 
Member States have already introduced - or are in the process of introducing - procedures 
making the recovery of sums of money simpler, faster  and less expensive. However,  this 
kind of procedure24 does not  exist  in all the Member  States25.  Where they  do  exist,  the 
substantive and formal  conditions governing their  application  differ  quite markedly.  The 
differences  concern such fundamental  aspects as the maximum amount of debt that can be 
dealt with under the procedure, whether the proceedings are adversarial  or ex parte, the 
rules of evidence, costs and charges, and whether the services of a lawyer are required. In 
addition,  the  degree  of  formality  of  the  procedure  varies  from  one  Member  State  to 
another, to the point where it may be completely removed from the judicial sphere26. 

38.  This widening  disparity  does  tend  to  weight  the  scales in favour  of  litigants  who 
have access to a very efficient  recovery procedure and against those at the other extreme 
who  have  no  such  option  and  have  to  rely  on  the  "normal"  procedures  -  which  are 
generally synonymous with much higher costs and lengthy delays. Furthermore,  in some 
Member States the use of a simple payment order procedure is flatly prohibited in the case 
of cross-border disputes27. In this case the disparity between national legislative provisions 
may  significantly  affect 
the  choice  of  jurisdiction  ("forum  shopping").  In  the 
Commission's  view,  the  Union  should  seek  to  counter  these  differences  which  could 
influence debtors' behaviour.  It has been demonstrated28,  in the context  ofthe  follow-up 
to the Recommendation of payment periods as between firms, that payments are delayed 
far  less  in those  Member  States  where judgments  can  be  obtained  and  enforced  more 
quickly, more cheaply  and  more efficiently.  There, the proportion  of all payment  delays 
that are intentional is substantially below the average, which is 35%. To benefit  fully from 
the  advantages  of  the  dismantling  of  national  frontiers,  both  economic  operators  and 
ordinary  citizens  should  have  access  to  a  rapid,  efficient  and  inexpensive  procedure 
meeting certain substantive and formal  conditions that offers  them equivalent  protection. 
And  that  protection  should  not  be  confined  to  firms  but  available  to  all  citizens 
(consumers, alimony creditors etc.) faced with unpaid claims. 

39.  The  general  introduction  of  a  payment  order  procedure  in  the  Member  States29 
would, as the competent  authorities became more familiar  with it, also help facilitate the 
recognition  and  enforcement  procedures30  provided  for  in  the  Brussels  Convention. 
Itf should also be noted that a number of academic papers on the "European  enforcement 
order" have started from the premise that a uniform procedure for the payment of sums of 
money  could  lead  to  the  complete  disappearance  of  the  recognition  and  enforcement 
procedure (registration/exequatur) provided for in the Brussels Convention. 

24  Known  as  "procédure  d'injonction  de  payer"'  in  France, 

in  Germany, 
"decretofinjuntivo"  in Italy, and  'betalningsfôrelâggande"  in  Sweden, "Summiere rechtspleging om 
betaling te bekomen" in the Netherlands. 

ltMahn\erfahren" 

25  Spain  and  Portugal  have  no  such  procedure.  The  United  Kingdom  and  Ireland  have  a  summary 

procedure that is very similar. 

26  For example, the "kronofogdemydighet"  in Sweden. 
27  There is some  uncertainty  as  to  whether  this  restriction  is  compatible  with  the  Court  of  Justice's 
reading of the  Brussels  Convention,  and  in  particular  of  Article  6, which  prohibits  discrimination 
(Case C-398/92 Mund & Fester v Hatrex Intemationaal Transport [1994] ECR 1-467). 

28  European Payment Habits Survey, April  1997, Intrum Justifia. 
29  Cf. Communication mentioned above, p. 9. 
30 

In its judgment in Klomps v Michel (Case 166/80 [1981] ECR  1593) the Court of Justice agreed that 
an order for payment constituted a "judgment' within the meaning of the Brussels Convention. 

17 

40.  The  fundamental  principle  is  that  litigation  for  the  payment  of  a  sum  of  money 
should  be  avoided  where  there  is  no  real  disputed  claim  and  where  the  debtor  does  not 
contest  the  debt.  Under  this  principle  the  responsibility  for  action  is  reversed  and  the 
initiative  for  starting  proceedings  rests  not  with  the  applicant  but  with  the  defendant. 
Having been served with an order  for  payment  issued  at the creditor's  request,  the  debtor 
must take the  initiative  of going to  court.  The major  feature  ofthe  procedure  is the legal 
effects  it  produces  if  the  debtor  knowingly  fails  to  act.  Special  care  must  therefore  be 
taken  to  ensure that  the  debtor's  interests  are properly  protected.  Service  or  notification 
of  the  enforcement  instrument  at  the  creditor's  request  is  a  matter  of  considerable 
importance  here,  since this is when  the time limit  starts to  run  for  the  debtor  to  lodge an 
objection  and start adversary proceedings. 

41.  Having  set  out  these  general  principles,  which  underlie  all  the  existing  systems,  a 
number  of issues  still  have to  be  settled.  First  the  ways  of maintaining  a balance  between 
the  parties  (whether  consumers,  in  which  case  the  existing  position  of  inferiority  in  the 
market31,  should  not  be  reinforced,  or  other  categories  of  persons)  must  be  examined. 
Then it is necessary to define  what  roles the judicial  authority,  the process  server  and  the 
lawyer  should  play.  The  material  scope,  the  potential  maximum  amount  of  the  debt, 
application  procedures,  rules  of  evidence,  methods  of  serving  orders,  what  courses  are 
open for appeals and the time limits for lodging them - these are all factors  that  have to be 
borne in mind when  considering the possible  shape of a European  procedure  for  payment 
orders.  This process  of reflection  will  be  guided  by the  desire  not  to  undermine  existing 
systems which have proved to be  effective. 

H.2  ENFORCEMENT OF JUDGMENTS 

42.  A prompt  and efficient  system for enforcing  court judgments  is vital for justice to be 
accessible.  A  free  circulation  of  court  judgments  would  be  illusory  if  enforcement 
instruments were not equally effective  in all the Member  States. 

43. 
It  is not  clear  that  at  present,  national  legal  systems  are up to the task  of  fullfulling 
this goal. As with interim and provisional measures means of enforcement  are organized  in 
very  different  ways and  subject  to  widely  differing  conditions  from  one  Member  State  to 
another.  AJthough  all  the  Member  States  have  different  enforcement  rules  depending  on 
the nature ofthe  claim  against  the  debtor  and  enforced  execution  in almost  all  of them  is 
conditional on service ofthe  instrument  on which it is based or on serving formal  notice to 
the debtor,  there  are still  considerable  differences  as regards the nature ofthe  instruments 
by which enforcement  can be obtained32,  since res judicata  is not  the only decisive  factor. 
Exceptions  to  the  generally  accepted  principle  that  all  the  debtor's  effects  are  liable  to 
seizure are numerous  and  also vary widely from  one  country to  another.  The  same is true 
as  regards  appeals,  the  role  of  the  courts  in  enforcement  proceedings,  the  cost  of 
enforcement  and publication  of enforcement  measures. 

3 l  Green Paper on Access to justice of consumers. 
32  Some Member States make a distinction between the writ and (he endorsement  for enforcement. 

is 

44.  The Brussels Convention  seeks  solely  to  facilitate  the  free  movement  of judgments 
by  making  the  registration  (exequatur)  procedure  more  flexible.  Enforcement  proper 
remains subject  to the procedural  rules of the State where it is effected.  The  enforceability 
of an instrument, then, is not to be confused  with its actual enforcement,  and there is still a 
long way to go before the conditions for  enforcement  of judgments and the risks attaching 
to the difficulties  which they pose are the same in all the Member States33. 

45.  The diversity and complexity ofthe  rules highlighted by the Court has to do with the 
specific  nature  of the  law  on  enforcement,  which  is deeply  rooted  in the national  culture 
and also affects  individual rights, contract  law, matrimonial law and the law of succession, 
tax law and the law on securities.  The multidisciplinary nature ofthe  law on  enforcement, 
plus the traditional  principle of territoriality  as regards  seizure, makes it necessary to  take 
a cautious and very gradual approach to the  subject. 

46. 
It  is  proposed  to  confine  reflection  initially  to  the  problem  of  banking  seizures, 
which  exist  in  practically  all the  Member  States  and  are  a powerful  weapon  against  bad 
debtors.  Their  effectiveness  is  somewhat  lessened  by  the  territoriality  principle  and  the 
substantial  differences  between  legislation  in  the  Member  States.  But  above  all,  the 
extreme volatility  of the contents of bank  accounts  is a major  obstacle to  the  seizure  and 
attachment  of  funds.  Thought  therefore  needs  to  be  given  to  the  various  ways  of 
neutralising  the  obstacles  and  volatility  and  to  define  a  common  approach  for  the 
European Union. 

47.  Several  questions  merit  special  attention.  Deciding  what  is  the  place  of  seizure  is 
one of these key questions. The answer will have to take account ofthe  massive growth in 
electronic  funds  transfer.  The  traditional  principle  whereby  the  place  of  seizure  is  where 
the  funds  held  by  the  banker  are  intercepted  or  where  payment  is  made  by  the  bank 
(generally its head office)  will have to be reviewed. 

The  scope  of  seizure  as regards funds  held by  a foreign  branch  or  subsidiary  of the  bank 
seised,  also  poses  a  particular  problem  in  connection  with  the  principle  of  territoriality. 
The  subsidiary  or  the  branch  is  very  often  treated  as  a  separate  establishment  from 
that where  the  seizure  is  effected,  at  any  rate  as  far  as  release  from  seizure  of  the  latter 
is concerned. 

The  date  when  a  third  party  subject  to  seizure  is  required  to  produce  information  about 
the  debtor's  account  and  what  becomes  of  debts  due  that  are  immune  from  seizure and 
paid  into  a  bank  account  are  questions  that  need  to  be  examined  carefully.  The same 
in 
applies 
some Member  States,  which  also  carries  a  risk  of  discrimination  against  more 
"distant" creditors. 

the  priority 

execution 

treatment 

afforded 

creditor 

the 

to 

to 

II.3  TRANSPARENCY  REGARDING  ASSETS 

48.  Making  it  easier  to  ensure  prompt  enforcement  of  foreign  judgments  through  a 
simpler recognition  and enforcement  procedure is essential in order to safeguard  the rights 
of the  creditor  effectively.  Progress  on this  front  can,  however,  be  rendered  worthless  if 
the debtor turns out  to be insolvent  or conceals assets. The creditor must  therefore  be able 

-'-'  Mund  c£ Festner.  supra.noie  24. 

Ie) 

to  place an accurate  valuation  on the  debtor's  actual  realisable  fortune  in terms  of  assets 
and liabilities before  deciding whether it is worth pursuing  enforcement. 

49.  Yet transparency regarding a debtor's assets, which constitute the creditor's  general 
security,  has  largely  disappeared.  Once  they  would  have  consisted  mainly  of  easily 
identifiable  - and hence seizable - immovable property,  but  now the make-up  has changed 
substantially.  By and  large such  assets no longer take material  form  but  tend  to  comprise 
mostly  bank  accounts,  miscellaneous  payments,  company  shares,  securities  or  founders' 
shares  in  companies  scattered  across  Europe,  usually  under  arrangements  that  ensure 
complete  anonymity  for  the  holder.  There  is far  less  clarity  about  a  debtor's  assets  and, 
with advances in information technology and the Internet34,  much greater volatility. 

50.  National  legislators  have  not  ignored  these  developments  and  have  gradually 
introduced  measures  to  tackJe  this  lack  of  transparency,  at  least  to  some  extent. 
Nevertheless  the  mechanisms  currently  available  in  the  Member  States  to  uncover  and 
locate the various elements of a debtor's  assets are extremely varied  and do  not  afford  all 
creditors equal protection. 

51.  One method is to oblige the debtor to disclose the details of his assets on application 
by  the  creditor  or  by  order  of  the  court  responsible  for  enforcement.  In  one  group  of 
Member  States  no  such  legal  rule  exists.  Here,  it  is  up  to  the  creditor  to  make  the 
necessary  effort  to  identify  and  locate  the  assets,  more  often  than  not  to  the  debtor's 
advantage  since  he  is  forewarned  or  more  than  adequately  advised.  Indeed,  in  some 
Member  States there  are no  provisions  making  it  punishable  for  a  debtor  to  contrive  his 
own insolvency. 

In a second  group  of Member  States there is a definite  obligation  to  declare  one's  assets, 
in writing or orally, either to a court,  possibly under oath, or to a clerk or court  officer,  or 
to the authorities  specially charged  with enforcing judgments.  Debtors  who  refuse  to give 
a  declaration  make  themselves  liable  to  penalties  or  even  imprisonment.  As  a  rule,  the 
obligation to declare assets covers all types of movable and immovable property. 

The effectiveness  of this kind of declaration depends largely on the use made of it and  the 
publicity  it  is  given.  In  some  Member  States  the  information  obtained  in  this  way  is 
disclosed  only  to  the  court  and  the  parties  concerned.  On  the  other  hand,  the  deterrent 
effect  of  the  obligation  to  declare  is  much  greater  where  the  information  can  be  made 
known  to  anyone  interested  via  the  court  records.  Thus  the  obligation  to  declare  assets 
can be a very effective  means of bringing pressure to bear on bad debtors. 

52.  Making  information  available  through  the  public  records  can  constitute  a  useful 
extra  source of information  or even  an alternative  solution  in Member  States  where  there 
is  no  declaration.  Once  again,  the  extent  of  the  information  available  in  this  way  varies 
considerably from one Member State to another. 

53. 
In  some  Member  States  the  courts  or  the  enforcement  authorities  also  have  the 
power  to  require  third  parties,  in  particular  banks  and  other  financial  institutions,  to 
disclose  information  about  debtor's  bank  accounts.  In  others,  this  option  is  completely 
ruled out, banking secrecy being the reason most commonly cited. 

34  See the Commission's Green Paper on Electronic Commerce (COM(97) 157). 

20 

54.  Fairly  substantial  differences  exist in the European  Union  over  the way in which the 
concept  of  transparency  regarding  assets  is  viewed.  Firstly  the  discretion  observed  by 
some Member  States  tends  to  encourage  bad  debtors  to  move  their  assets  there  in  order 
to  escape  seizure.  In  addition  creditors  in  the  Union  are  not  all  on  an  equal  footing.  It 
depends  on the  country  where  they  are  seeking  to  obtain  payment.  In  the  Commission's 
view the present  situation  is unsatisfactory,  effective  enforcement  in the  European  Union 
calls  for  coordinated  action.  Taking  into  account  the  interest  of  such  a  system,  thought 
should  be given  to  the  possibility  of bringing  in  a general  obligation  across  the  Union  to 
declare assets in order to be able to locate them. 

This  approach  was  broadly  welcomed  by  those  in  the  profession  following  consultation 
by  the  Commission  in  the  run-up  to  the  Helsinki  seminar  in  March  1997  on  the 
"European  enforcement  order".  The  Commission  believes  that  it  is  essential  to  reconcile 
the  effectiveness  of  such  a  procedure  with  the  rules  on  immunity  from  seizure  and  also 
with  the  need  to  protect  debtors  and  third  parties  against  inappropriate,  inadequate  or 
excessive  investigation.  Particular  attention  will  be  given  to  data  protection.  The 
Commission will proceed  with protracted  consultation in order to obtain  specific  points of 
views from the interested parties. 

II.4  EXCHANGE OF INFORMATION BETWEEN ENFORCEMENT AUTHORITIES 

55.  A  further  dimension  which  reflection  on  improving  the  effectiveness  of judgments 
will  have to  cover  is  cooperation  between  the  authorities  responsible  for  enforcement  in 
the Member  States.  This issue is inseparable  from  the problem  of identifying  the  property 
subject  to  enforcement  action  and  is a natural  complement  to  it.  The more progress  made 
towards  greater 
future 
cooperation.  At  present  the  fact  is that,  although judicial  cooperation  on  civil  matters  is 
one ofthe  Union's  objectives,  the European  Union  has no general  multilateral  instrument 
aimed at speeding up the settlement  of disputes and the enforcement  of judgments  through 
a system of mutual  assistance. 

transparency  regarding  assets,  the  greater 

the  scope  for 

56.  This  was  also  one  of  the  topics  discussed  at  the  seminar  on  the  European 
enforcement  order  held  in  Helsinki  in  March  1997  as  a  factor  that  could  help  to  make 
court judgments more effective.  The Member  States were also consulted  on the possibility 
of introducing  a system  for  exchanging  information  in this area in the  context  of work  on 
the  "European  enforcement  order"  (see  1.2).  The  reception  given  to  the  proposal  was  a 
sign  that  the  Member  States  are  growing  increasingly  aware  of the  difficulties  caused  by 
the absence of a formal  framework  for  cooperation between  courts with  regard  to  making 
judgments  effective. 

57.  The  Commission  takes  the  view  that 
improving  legislative  mechanisms  for 
recognition  and  enforcement  is a matter  of priority,  but  that  the  positive  results  expected 
from  the work  done in this area  could  be further  enhanced  by active cooperation  between 
the  national  authorities  involved  in  these  mechanisms.  Cooperation  here  would  help  to 
overcome the drawbacks ofthe  principle of territoriality  as regards means of  enforcement, 
a  principle  that  is  firmly  anchored  in  the  Member  States'  legal  traditions.  On  the  other 
hand,  the  difficulty,  or  even  impossibility  in  some  cases,  of  locating  assets  easily  and 
inexpensively  in  order  to  satisfy  a  creditor  tends  to  undermine  the  free  movement  and 
effectiveness  of  judgments and,  more generally,  the ability ofthe  Member  States'  judicial 
systems to meet  the concerns  of litigants.  It would  therefore  be wise to  begin  considering 

21 

possible appropriate forms and arrangements for an information exchange system between 
enforcement authorities in the Member States. 

58.  To be effective,  a system of this kind  should  not be confined  solely to exchanging 
information on the legislation applicable in the Member State applied to. The main goal of 
such  cooperation  should  be to  help  the  creditor  obtain  the  information  available  in the 
Member  State applied to  on the debtor  himself and  on the nature  of his property, what 
ittcomprises in terms  of assets (including  debts  due to  third  parties)  and  liabilities, and 
their location. 

59.  A comparison of existing instruments in other matters will make the definition  of a 
possible system easier.  There are a series of instruments, in particular  at the level of the 
European Union, the purpose of which is to allow or facilitate  reciprocal information and 
cooperation between authorities. 

In  this  connection  the  machinery  provided  for  by  the  Convention  signed  on 
6 November  1990  in  the  context  of  European  Political  Cooperation  concerning  the 
recovery of maintenance is of particular interest35. Under Article 3 ofthe  Convention, the 
designated  authorities undertake to  cooperate with a view to making judgments  effective 
and  to  take  the  necessary  enforcement  measures,  but  also  to  seek  out  and  locate  the 
debtor's assets and to obtain from the State authorities all necessary information regarding 
the debtor. 

Community  law  also  offers  several  models  for  a  system  of  information  exchange  and 
mutual assistance between  authorities with the aim of ensuring the proper  application of 
Community  rules.  Such  systems  are  especially  well  developed  in  the fields of customs, 
agriculture and taxation36. 

In the forthcoming reflections, the differences  of culture between the Member States 
60. 
as  regards  responsibility  for  the  conduct  of  proceedings  and  the  enforcement  of 
judgments, the disparities or similarities in terms of the information  available within each 
Member  State, and the wide differences  in the status and responsibilities  of  enforcement 
officers  will occupy a major place in the discussions and a number of factors will have to 
be taken into account. 

In particular there needs to be a precise definition  of who may have access to information. 
It would probably be preferable to limit access to official  authorities rather than extending 
it to private individuals. In this case it will have to be decided which authorities are likely 
to be receiving information  and which ones will be supplying it. A system of this kind will 
probably  have  to  be  open  to  all  administrative  and  judicial  authorities  and  those 
independent professional  authorities that are authorized by the State to effect  the enforced 
execution  of judgments.  A related  question will be the  degree  of decentralization  which 
any such system should lead to. 

35  The  Convention  has been  ratified  by  only  four  Member  States.  A  review  of  the  Convention  now 
under way in the Council, in particular as to the reasons for its non-ratification,  should provide some 
useful  information. 

36  See  in  particular  Council  Directive  76/308/EEC  on  mutual  assistance  for  the  recovery  of  claims 
resulting from operations forming part of the system of financing the EAGGF and of the agricultural 
levies and customs duties: OJ L 73, 19.3.1976, p. 18. 

The  material  scope  of  the  system  and  the  conditions  which  applications  for  assistance 
would have to  satisfy will need to be clearly defined.  Besides cases where assistance may 
validly be refused, it will be necessary to identify what limits may need to be placed on the 
system in order to take account  of legitimate  concerns for the  protection  of  privacy and 
personal  data  and  of  national  rules  on  the  confidentiality  of  information  and  banking 
secrecy in the State applied to. 

23 

III.  Proposal for a 
COUNCIL ACT 

establishing the Convention on jurisdiction and the recognition and 
enforcement  of judgments in civil and commercial matters in the 
Member States ofthe European Union 

THE COUNCIL OF THE EUROPEAN UNION, 

Having 
regard 
Article K.3(2)(c) thereof, 

to 

the  Treaty  on  European  Union, 

and 

in  particular 

Having regard to the proposal from the Commission37, 

Having regard to the Opinion ofthe European Parliament38, 

WHEREAS,  for  the  attainment  of  the  objectives  of  the  European  Union,  the 
Member States consider  that  cooperation  in the field of jurisdiction  and  the  recognition 
and  enforcement  of judgments  in  civil  and  commercial  matters  is  a  matter  of  common 
interest  in  the  justice  and  home  and  affairs  cooperation  established  by  Title VI  of 
the Treaty; 

HAVING DECIDED to  establish  the Convention  and  the Protocol  on  its  interpretation 
annexed  hereto  and  signed  this  day by the  Representatives  of  the  Governments  of the 
Member States; 

RECOMMEND  its  adoption  by the  Member  States  in  accordance  with  their  respective 
constitutional requirements. 

Done at Brussels, 

For the Council 
The President 

37  COM(97) 
38  OJC 

24 

THE  HIGH  CONTRACTING  PARTIES  TO  THE  TREATY  OF  THE 
EUROPEAN UNION, 

REFERRING to the Act ofthe Council ofthe European Union  of.., 

DESIRING to improve and accelerate the circulation  in the Member States of the 
European Union of judgments in civil and commercial  matters and, to that end, to 
simplify the formalities to which the recognition and the provisional enforcement of 
judicial decisions are subject; 

ANXIOUS to strengthen  the legal protection  enjoyed  by persons established  in the 
Member States ofthe European Union; 

CONSIDERING  THAT, by virtue  of Article K.3(2)(c)  of the  Treaty  on European 
Union,  conventions  established  on  the  basis  of  Article K.3  may  stipulate  that  the 
Court of Justice shall have jurisdiction  to interpret their provisions, in accordance 
with such arrangements as they may lay down, 

HAVE AGREED AS FOLLOWS: 

Unchanged39 

TITLE I - SCOPE 

Article 1 

TITLE II - JURISDICTION 

Section 1 

General provisions 

Article 2 

1. 

Subject  to  the  provisions  of  this  Convention,  persons  habitually  resident  in a 
Contracting  State  shall,  whatever  their  nationality,  be  sued  in  the  courts  of 
that State. 

Persons who are not nationals of the State in which they are habitually  resident 
shall be governed by the rules of jurisdiction applicable to nationals of that State. 

2. 

For the purposes of this Convention, the place of the central management of a 
company  or  other  legal  person  or,  failing  that,  its  registered  office,  shall  be 
treated as equivalent to the habitual residence of a natural person. 

39  The term "unchanged", wherever used in the Convention and in  its Protocols shall be understood to 
mean unchanged relative to the Brussels Convention in its last version (after  the accession of Austria, 
Finland and Sweden). 

25 

Article 3 

Persons who are habitually resident in a Contracting State may be sued in the courts of 
another  Contracting  State  only  by  virtue  of  the  rules  set  out  in  Sections  2  to  6a  of 
this Title. 

In particular the following provisions shall not be applicable as against them: 

(Remainder unchanged) 

Article 4 

If  the  defendant  is  not  habitually  resident  in  a  Contracting  State,  the jurisdiction  of 
the  courts of each Contracting  State shall,  subject  to  the provisions  of Articles  16, 17 
and 18, be determined by the law of that State. 

As against such a defendant,  any person habitually  resident in a Contracting  State may, 
whatever  his nationality,  avail  himself  in  that  State  of the  rules  of jurisdiction  there in 
force,  and in particular those specified  in the second  paragraph of Article  3, in the same 
way as the nationals of that State. 

Section 2 

Special jurisdiction 

Article 5 

A person habitually  resident  in a Contracting  State may, in another  Contracting  State, 
be sued: 

1. 

2. 

3. 

4. 

in matters relating to a contract for sale of goods, in the courts of the place where 
the delivery  was or should  have  been  carried  out,  except  in  cases  where the 
goods were delivered, or deliverable, to more than one place. 

in matters relating to maintenance, in the courts for the place where the applicant 
for  maintenance  creditor  is  domiciled  or  habitually  resident  or,  if  the  matter  is 
ancillary  to  proceedings  concerning  the  status  of  a  person,  in  the  court  which, 
according  to  its own law,  has jurisdiction  to  entertain  those  proceedings40,  unless 
that jurisdiction is based solely on the nationality of one ofthe parties; 

in matters relating to tort, delict or quasi-delict, in the courts for the place where the 
event giving  rise to the damage occurred  or in the courts for the place where 
the damage or part thereof was sustained; 

as regards a civil claim for  damages or restitution  which is based  on an act giving 
rise  to criminal proceedings, in the court  seised of those proceedings,  to the extent 
that that court has jurisdiction under its own law to entertain civil proceedings; 

40  Taking into account the signature of the convention  on jurisdiction, recognition and enforcement of 

decisions in matrimonial matters ("Brussels 11"). 

26 

5. 

6. 

7. 

as  regards  a  dispute  arising  out  of  the  operations  of  a  branch,  agency  or  other 
establishment,  in  the  courts  for  the  place  in  which  the  branch,  agency  or  other 
establishment is situated; 

as settler, trustee or beneficiary of a trust created by the operation of a statute, or by 
a written instrument, or created orally and evidenced in writing, in the courts  ofthe 
Contracting State in which the trust is domiciled; 

as regards a dispute concerning the payment of remuneration  claimed in respect of 
the salvage of a cargo or freight, in the court under the authority of which the cargo 
or freight  in question: 

(a)  has been arrested to secure such payment, or 

(b)  could have been so arrested, but bail or other security has been given; 

provided that this provision shall apply only if it is claimed that the defendant has an 
interest in the cargo or freight  or had such an interest at the time of salvage. 

Article 5a 

1. 

In matters relating to individual contracts of employment,  a defendant  habitually 
resident in a contracting  State may be sued in another Contracting State, before 
the court for the place where the employee habitually carries out his work. 

Where the employee does not habitually carry out his work in the same country, the 
employer may be sued in the courts for the place where the business which engaged 
the employee was or is now situated. 

2.  An agreement between the two parties conferring jurisdiction shall have legal force 
only if entered into after the dispute has arisen or if the employee invokes it to seise 
courts  other  than  those  for  the  defendant's  habitual  place  of  residence  or  those 
specified in paragraph 1. 

Article 6 

A  person  habitually  resident  in  a  Contracting  State  may  also  be  sued  in  another 
Contracting State: 

1.  where he is one of a number of defendants, in the courts for the place where any one 
of  them  is  habitually  resident,  unless  the  action  has  been  brought  solely  in 
order  to  cause  the  co-defendants  to  appear  in  a  court  other  than  their 
own court; 

The first subparagraph shall not apply where a co-defendant  has entered into 
an  agreement  conferring  jurisdiction  which  satisfies  the  requirements  of 
Article 17; 

2. 

as a third party in an action on a warranty or guarantee or in any other third party 
proceedings,  in  the  court  seised  of  the  original  proceedings,  unless  these  were 
instituted  solely with the object  of removing him from the jurisdiction  of the court 
which would be competent in his case; 

27 

3. 

4. 

on  a  counter-claim  arising from the  same  contract  or  facts  on  which  the  original 
claim was based, in the court in which the original claim is pending; 

in  matters  relating  to  a  contract,  if  the  action  may  be  combined  with  an  action 
against  the  same  defendant  in  matters  relating  to  rights  in  rem  in  immovable 
property, in the court ofthe Contracting State in which the property is situated. 

Unchanged 

Unchanged 

Article 6a 

Section 3 

Jurisdiction in matters relating to insurance 

Article 7 

Article 8 

An insurer habitually resident in a Contracting State may be sued: 

1. 

2. 

in another Contracting  State, in the courts for the place where the policy-holder is 
habitually resident, or 

if he is a co-insurer,  in the courts of a Contracting  State in which proceedings are 
brought against the leading insurer. 

An insurer who is not habitually resident in a Contracting State but has a branch, agency 
or other establishment in one ofthe  Contracting States shall, in disputes arising out  ofthe 
operations ofthe branch, agency or establishment, be deemed to be habitually resident in 
that State. 

Article 9 

The insurer may in addition be sued  in the courts for the place where the event giving 
' rise to the damage occurred or in the courts for the place where the damage or part 
thereof  was  sustained  if  it  relates  to  liability  insurance  or  insurance  of  immovable 
property.  The same applies if movable and immovable property are covered by the same 
insurance policy and both are adversely affected  by the same contingency. 

Unchanged 

Article 10 

Article 11 

Without prejudice  to the provisions ofthe  third  paragraph  of Article  10, an insurer may 
bring proceedings  only in the courts  of the Contracting  State  in which the  defendant  is 
habitually  resident,  irrespective  of  whether  he  is  the  policy-holder,  the  insured  or  a 
beneficiary. 

28 

The provisions of this Section shall not affect  the right to bring a counterclaim in the court 
in which, in accordance with this Section, the original claim is pending. 

Article 12 

The provisions of this Section may be departed from only by an agreement on jurisdiction: 

(Points 1. and 2 unchanged) 

3.  which  is  concluded  between  a  policy-holder  and  an  insurer,  both  of  whom  have 
their habitual residence in the same contracting State, and which has the effect  of 
conferring jurisdiction  on the courts of that  State even if the event  giving  rise to 
the damage were to occur abroad, provided that such an agreement is not contrary 
to the law of that State, or 

4.  which  is  concluded  with  a  policy-holder  who  is  not  habitually  resident  in  a 
Contracting  State,  except  in  so  far  as  the  insurance  is  compulsory  or, relates  to 
immovable property in a Contracting State, or 

5. 

(unchanged). 

Article 12a 

The following are the risks referred to in point 5 of Article 12: 

Paragraphs  1-4 unchanged 

All major risks to which Article 5 of Council Directive 88/357/EEC refers. 

•  Section 4 

Jurisdiction over consumer contracts 

Article 13 

In proceedings concerning a contract  concluded by a person for  a purpose which can be 
regarded  as  being  outside  his  trade  or  profession,  hereinafter  called  'the  consumer', 
jurisdiction  shall  be  determined  by this  Section,  without  prejudice  to  the  provisions  of 
Article 4 and point 5 of Article 5, if it is: 

\. 

2. 

a  contract  for  the  sale  of  goods  on  instalment  credit  terms  or  a  contract  for  a 
loan repayable  by  instalments,  or  for  any  form  of  credit  contract  to  which 
Council Directive 87/102/EEC applies; or 

any  other  contract  for  the  supply  of  goods  or  a  contract  for  the  supply  of 
services, and 

(a) 

in  the  State  of  the  consumer's  habitual  residence  the. conclusion  of  the 
contract  was  preceded  by  a  specific  invitation  addressed  to  him  or  by 
advertising; or 

29 

(b) 

(c) 

the  consumer's  contracting  partner  or  his  representative  received  the 
order  from  the  consumer  in  the  country  where  the  consumer  is 
habitually resident; or 

the contract is for the sale of goods and the consumer travelled from the 
country where he is habitually resident to another Contracting State and 
placed the order there, provided  that the journey was organized  for the 
purpose of inducing the consumer to enter into a contract for the sale of 
the goods. 

Point  2  shall  also  apply  to  contracts  for  the  acquisition  of  a  time-share  in 
immovable property. 

Where a consumer enters into a contract with a party who is not habitually resident in a 
Contracting  State  but  has  a  branch,  agency  or  other  establishment  in  one  of  the 
Contracting States, that party shall, in disputes arising out ofthe  operations ofthe branch, 
agency or establishment, be deemed to be habitually resident in that State. 

Article 14 

A consumer  may bring  proceedings  against  the  other  party  to  a  contract  either  in the 
courts ofthe  Contracting State in which that party is habitually resident or in the courts 
ofthe Contracting State in which he is himself habitually resident 

Proceedings may be brought against a consumer by the other party to the contract only in 
the courts ofthe  Contracting State in which the consumer is habitually resident. 

These provisions shall not affect  the right to bring a counter-claim in the court in which, in 
accordance with this Section, the original claim is pending. 

Article 15 

The provisions of this Section may be departed from only by an agreement: 

1.  which is entered into after the dispute has arisen, or 

2.  which allows the consumer to bring proceedings in courts other than those indicated 

in this Section; or 

3.  which is entered into by the consumer and the other party to the contract,  both of 
whom  are  at the time of conclusion  of the  contract  (...)  habitually  resident  in the 
same Contracting  State, and which confers jurisdiction  on the courts of that  State, 
provided that such an agreement is not contrary to the law of that State. 

30 

Section 5 

Exclusive jurisdiction 

Article 16 

The following courts shall have exclusive jurisdiction: 

1. 

(a) 

(unchanged) 

(b)  however,  in  proceedings  which  have  as  their  object  tenancies  of  immovable 
property  concluded  for  temporary  private  use  for  a  maximum  period  of  six 
consecutive  months,  the  courts  of  the  Contracting  State  in  which  the 
defendant  is  habitually  resident  shall  also  have jurisidiction,  provided  that 
the landlord  and the tenant  are natural  persons and are habitually  resident in 
the same Contracting  State; 

2. 

in  proceedings  which  have  as  their  object  the  validity  of  the  constitution,  the 
nullity or  the  dissolution  of  companies  or  other  legal  persons,  (...)  the  courts  of 
the Contracting  State  in  which  the  company  or  legal  person  (...)  has  its 
registered  office; 

3-5.  (unchanged) 

Section 6 

Prorogation of jurisdiction 

Article 17 

ïf  the  parties  have  agreed  that  a  court  or  the  courts  of  a  Contracting  State  are  to 
have  jurisdiction  to  settle  any  disputes  which  have  arisen  or  which  may  arise  in 
connection with  a particular legal  relationship, that  court or those  courts shall  have 
exclusive  jurisdiction.  Such  an  agreement  conferring  jurisdiction  shall  be  either: 
(remainder ofthe  paragraph unchanged). 

Where such an agreement  is concluded by parties none of whom is habitually  resident in 
a Contracting  State, the courts of other Contracting  States shall have no jurisdiction  over 
their disputes unless the court or courts chosen have declined jurisdiction. 

(Remainder ofthe  Article unchanged except that the last paragraph is deleted.) 

Article 18 

Except  where  it  arises  under  other  provisions  of this  Convention, jurisdiction  shall 
vest  in  the  court  of  a  Contracting  State  before  which  a  defendant  enters  an 
appearance  and  of  his  own  volition  undertakes  procedural  steps  other  than  those 
which  directly  or  indirectly,  in  an  ancillary  or  subsidiary  manner,  seek  to  contest 
that  court's  jurisdiction.  National  provisions  governing  the  form  in  which,  or  the 
grounds  on  which,  the  jurisdiction  may  be  contested  may  in  no  circumstances 
operate to  impair the expression  ofthe  defendant's  intent to contest  the jurisdiction 
of such  court. 

31 

The first  paragraph shall  not apply where another court  has exclusive jurisdiction 
by virtue of Article 16. 

Section 6a 

Jurisdiction in respect of provisional, including protective, measures 

Article 18a 

1.  Where such provisional or protective measures as are available under the law of a 
Contracting  State  are to  be  enforced  in  its  territory,  they  may  be sought  in 
that State, irrespective ofthe place where they produce their effects,  even if, under 
this Convention, the courts of another Contracting  State have jurisdiction as to the 
substance ofthe matter. 

2. 

For  the  purposes  of  this  Convention,  provisional,  including  protective 
measures  means  urgent  measures  for  the  examination  of  a  dispute,  for  the 
preservation of evidence or of property pending judgment or enforcement, or 
for  the  preservation  or  settlement  of  a  situation  of  fact  or  of  law  for  the 
purpose of safeguarding rights which the courts hearing the substantive issues 
are, or may be, asked to recognize. 

Section 7 

Examination as to jurisdiction and admissibility 

Unchanged 

Article 19 

Article 20 

Where  a defendant  is  sued  in a  court  of  another  Contracting  State  and  does  not 
enter  an  appearance,  the  court  shall  declare  of  its  own  motion  that  it  has  no 
jurisdiction unless its jurisdiction is derived from the provisions of this Convention. 

(unchanged) 

The Contracting States shall not apply the provisions of the second paragraph until 
they are affected  by the entry into force of Article 9 ofthe Convention on the service 
in  the  Member  States  of  the  European  Union  of  judicial  and  extrajudicial 
documents in civil or commercial matters. 

Section 8 

Lis pendens - related actions 

Article 21 

Where proceedings involving the same cause of action and between the same parties are 
brought in the courts of different  Contracting  States, any court  other than the court  first 
seised shall of its own motion stay its proceedings until such time as the jurisdiction  ofthe 
court first seised is established. 

32 

Where  the jurisdiction  of the  court first seised  is  established,  any  court  other  than  the 
court first seised shall decline jurisdiction in favour of that court. 

For the  purpose  of this  Convention,  a  court  shall  be  deemed  to  have  been  seised 
where an application has been made to it and the document instituting proceedings 
or  equivalent  document  has  been  served  on  or  notified  to  the  defendant  in 
accordance with the second or third indents of Article 20. 

Article 22 

Where related actions are pending in the courts of different  Contracting States, any court 
other than the court first seised may, while the actions are pending at first instance, stay its 
proceedings. 

Such  court  may  also,  on  the  application  of  one  of  the  parties,  decline jurisdiction  if 
actions are pending at the same level, if and the court first seised has jurisdiction over 
those actions and if the law of that court permits the consolidation of related actions. 

For  the  purposes  of  this  Article,  actions  are  deemed  to  be  related  where  they  are  so 
closely  connected  that  it is expedient  to  hear  and determine them together  to  avoid  the 
risk of irreconcilable judgments resulting from separate proceedings. 

Article 23 

1.  Where  actions  come within  the  exclusive jurisdiction  of  several  courts,  any court 
other than the court first seised shall decline jurisdiction in favour of that court. 

2.  Where only the second court seised  has exclusive jurisdiction, such court shall 
not  be obliged  to decline jurisdiction  until  the court first  seised  has  ruled on 
the question of jurisdiction. 

Section 9 

Provisional, including protective, measures 

Article 24 

TITLE in - RECOGNITION AND ENFORCEMENT 

Article 25 

Deleted 

Unchanged 

33 

Unchanged 

Section 1 

Recognition 

Article 26 

Article 27 

Judgments given in a Contracting  State shall, where a final  order is issued,  generate 
an  entitlement  on  the  grounds  of  which  provisional  protective  measures  may  be 
ordered  in accordance with  the law of the State applied  to, even where they  are not 
enforceable  or  have  not  been  declared  enforceable  in  the  State  applied  to  for  the 
purposes of Article 31. 

Deleted 

Deleted 

Unchanged 

Article 28 

Article 29 

Article 30 

Section 2 

Enforcement 

Article 31 

A judgment  given  in a Contracting  State and  enforceable  in that  State shall,  in  any 
other  Contracting  State,  have  the  same  effect  as  attaches  to  any  enforceable 
judgment  in  that  State,  once  it  has  been  declared  enforceable  there  on  application 
from any interested  party. 

However,  in  the  United  Kingdom,  such  a judgment  shall  be  enforced  in  England  and 
Wales,  in  Scotland,  or  in  Northern  Ireland  when,  on  the  application  of  any  interested 
party, it has been registered  for  enforcement  in that part ofthe  United  Kingdom. 

1. 

The application  shall be submitted: 

Article 32 

34 

2. 

In  Contracting  States  where  several  courts  or  authorities  have  been 
designated, the jurisdiction of local courts or authorities shall be determined by 
reference to the place of habitual residence ofthe party against whom enforcement 
is  sought.  If  he  is not  habitually  resident  in  the  State  in  which  enforcement  is 
sought, it shall be determined by reference to the place of enforcement. 

Article 33 

The procedure for  making the  application  shall be governed  by the law of the  State in 
which enforcement is sought. 

The applicant must give an address for service of process within the area of jurisdiction of 
the court or authority applied to. However, if the law ofthe  State in which enforcement 
is  sought  does  not  provide  for  the  furnishing  of  such  an  address,  the  applicant  shall 
appoint a representative ad litem. 

The documents referred to in Article 46 shall be attached to the application. 

Article 34 

1.  The court or authority  applied  to shall give its decision within  no more than 

fifteen days from the lodging of the application. 

2.  The  court  or  authority  applied  to  shall  verify  that  the  application  and  the 

documents provided for by Article 46 are in order. 

3.  The party  against whom  enforcement  is sought  shall  not  at  this  stage  of the 

proceedings be entitled to make any submissions on the application. 

Unchanged 

Article 35 

Article 36 

1.  The judgment  authorizing  enforcement  shall  be served  on, or notified  to, the 
party  against whom enforcement  is sought.  Such  party  may appeal  against  the 
judgment within one month of service thereof. 

2. 

If that party is habitually  resident in a Contracting  State other than that  in which 
the judgment authorizing enforcement was given, the time for appealing shall be two 
months  and  shall  run from the  date  of  service,  either  on  him  in  person  or  at  his 
residence. No extension of time may be granted on account of distance. 

3.  The  judgment  authorizing  enforcement  shall  automatically  be  enforceable 

in anticipation. 

However,  measures  for  the  sale  or  assignment  of  property  and  all  other 
measures to secure rights recognized  by the judgment  shall  be suspended  for 
the duration of the period allowed for appeals pursuant to paragraph 1 and, if 
an  appeal  is  brought,  until  such  time  as  judgment  has  been  given  on  the 
appeal  and  has  become  enforceable.  The  court  hearing  the  appeal  may, 

35 

however,  decide  otherwise,  subject,  if  it  deems  fit,  to  the  provision  of  such 
security as it may determine. 

4.  All  judgments  authorizing  enforcement  shall  be  deemed  to  authorize 
protective  measures  against  the  assets  of  or  in  respect  of  the  party  against 
whom enforcement is granted. 

Unchanged 

Article 37 

Article 37a 

1.  An  action  pursuant  to Article 36(1) shall  be entertained  if  the  party  against 

whom enforcement is authorized shows: 

(1)  deleted 

(2)  where the judgment was given by default, 

either that he was not duly served either with the document which 
instituted  the  proceedings  or  with  an  equivalent  document  and 
thereby suffered a prejudice, 

or  that  he  was  not  served  in  sufficient  time  to  enable  him  to 
arrange for his defence. 

However,  the  action  shall  not  be entertained  if  no  appeal  was  brought 
against the judgment,  even where he had proper and timely  knowledge 
of it; 

(3) 

that the judgment is irreconcilable with a judgment given in a dispute between 
the same  parties  in the  State  in  which  recognition  is  sought  or  in  another 
Contracting State; 

(4)  deleted; 

(5) 

that  the judgment  is irreconcilable  with  an earlier judgment  given  in  a non-
contracting  State  involving the  same cause  of  action  and  between  the  same 
parties,  provided  that  this latter judgment  fulfils  the conditions necessary  for 
its recognition in the State addressed. 

2.  Under no circumstances may a foreign judgment be reviewed as to its substance. 

Article 37b 

An  action  pursuant  to  Article  36  shall  be  entertained  if  the  party  against  whom 
enforcement  is authorized shows that it conflicts with the provisions of Sections 3, 4 or 
5 of Title II, or in a case provided for in Article 59. 

36 

In  its  examination  ofthe  grounds  of jurisdiction  referred  to  in  the  first  paragraph,  the 
court  seised  shall  be  bound  by  the  findings  of  fact  on  which  the  court  of  the  State  of 
origin based its jurisdiction. 

Subject to the provisions ofthe first paragraph, the jurisdiction  ofthe  court  ofthe  State of 
origin may not be reviewed. 

Article 38 

The  Court  with which the appeal  is lodged  may,  on the  application  of the  appellant,  stay 
the  procedings  if  an  ordinary  or  an  extraordinary  appeal  has  been  lodged  against  the 
judgment  in the  State of origin or if the time for  such an'appeal has not yet expired;  in the 
latter case, the Court may specify  the time within which such an appeal is to be lodged. 

[Paragraphs 2 and 3 deleted] 

Deleted 

1.  Unchanged 

Article 39 

Article 40 

2. 

The party  against  whom  enforcement  is  sought  sail be  summoned  to  appear  before 
the  appellate  court.  If  he  fails  to  appear,  the  provisions  of  the  second  and  third 
paragraphs of Article 20 shall apply. 

Unchanged 

Article 41 

Article 42 

Where a judgment  has been given in respect  of several matters and enforcement  cannot  be 
authorized  for  all of them,  the court  or authority  seised  shall  authorize  enforcement  for 
one or more of them. 

An applicant may request partial enforcement  of a judgment. 

Article 43 

A foreign judgment  which  orders  a  periodic  payment  by way  of a penalty  shall,  without 
prejudice  to  provisional  and  protective  measures  to  secure  its  enforcement,  be 
enforceable  in the State in which enforcement  is sought  only if the amount  ofthe  payment 
has been finally determined  by the courts ofthe  State of origin. 

Unchanged 

Articles 44 and 45 

37 

Section 3 

Common  provisions 

Article 46 

A party seeking recognition or applying for enforcement  of a judgment  shall produce: 

1. 

2. 

a  copy  of  the  judgment  which  satisfies  the  conditions  necessary  to  establish  its 
authenticity; 

the original or a certified  copy of a certificate  issued  by a court or authority  in 
the  Contracting  State  in  which  the  judgment  was  given,  following  the 
specimen  annexed  to this  Convention.  The  certificate  shall  be filled  out  in  the 
official  language  of  the  Contracting  State  applied  to,  or,  if  there  are  several 
official  languages  in  that  State,  the  official  language  for  the  place  where 
enforcement  is  to  be  made,  or  in  any  other  language  which  the  Contracting 
State applied  to has indicated  it will accept. At the time of deposit  pursuant  to 
Article  61(2),  each  Contracting  State  shall  indicate  which  of  the  official 
languages  of  the  European  Union  other  than  its  own  it  will  accept  for 
completion of the form; 

3. 

in the case of a judgment  given in default,  the original or a certified  true copy of the 
document  which establishes that the party  in default  was  served  with the  document 
instituting the proceedings or with an equivalent  document; 

4.  where appropriate, a document  showing that the applicant is in receipt  of legal aid in 

the State of origin. 

Deleted 

Article 47 

Article 48 

If the documents specified  in points 3 and 4 of Article 46 are not produced,  the court may 
specify  a time for  their production,  accept  equivalent  documents  or,  if it  considers  that  it 
has sufficient  information  before  it, dispense With their production. 

If the court  so requires,  a translation  ofthe  documents  specified  in  points  1, 3 and  4 of 
Article 46  shall be produced; the translation  shall be  certified  by a person  qualified  to  do 
so in one ofthe  Contracting  States. 

Article 49 

No  legalization  or  other  similar  formality  shall  be  required  in  respect  of  the  documents 
referred  to  in  Article  46  or  the  second  paragraph  of  Article  48,  or  in  respect  of  a 
document  appointing a representative ad litem. 

38 

TITLE IV - AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS 

Article 50 

1.  A  document  which  has  been  formally  drawn  up  or  registered  as  an  authentic 
instrument and is enforceable in one Contracting State shall, in another Contracting 
State, be declared  enforceable  there,  on  application  made in  accordance  with the 
procedures provided for in Articles 31 to 45. The application may not be refused. 

For  the  purposes  of  this  Convention, 
instruments'  means 
documents  drawn  up  by  a  public  authority  in  accordance  with  the  rules 
governing jurisdiction and form provided for by the law ofthe  State on whose 
behalf the authority acts. 

'authentic 

2. 

The  instrument  produced  must  satisfy  the  conditions  necessary  to  establish  its 
authenticity in the State of origin. 

3. 

The provisions of Articles 46 to 49 shall apply as appropriate. 

Unchanged 

Article 51 

TITLE V -N INTERPRETATION BY THE COURT OF JUSTICE 

Article 52 

The  Court  of  Justice  of  the  European  Communities  shall  have  jurisdiction  to 
interpret this Convention in accordance with the Protocol No 2 annexed hereto. 

Article 53 

Deleted 

Unchanged 

Deleted 

TITLE VI - TRANSITIONAL PROVISIONS 

Article 54 

Article 54a 

TITLE VH - RELATIONSHIP TO OTHER CONVENTIONS 

Articles 55 and 56 

Unchanged 

39 

1.  Unchanged 

Article 57 

2.  With  a  view  to  its  uniform  interpretation,  paragraph  1  shall  be  applied  in  the 

following  manner: 

(a) 

this  Convention  shall  not  prevent  a  court  of  a  Contracting  State  which  is  a 
party  to  a  convention  on  a  particular  matter  from  assuming  jurisdiction  in 
accordance  with  that  Convention,  even  where  the  defendant  in  another 
Contracting  State which  is not  a party to that  Convention.  The  court  hearing 
the action shall, in any event, apply Article 20 of this Convention. 

(The rest ofthe  Article unchanged) 

Deleted 

Article 58 

Article 59 

This Convention  shall not prevent  a Contracting  State from assuming,  in a convention  on 
the recognition  and  enforcement  of judgments,  an obligation towards  a third  State not  to 
recognize  judgments  given  in  other  Contracting  States  against  defendants  habitually 
resident  in the third  State wheren  in cases  provided  for  in  Article  4,  the judgment  could 
only be founded  on a ground of jurisdiction specified  in the second paragraph of Article 3. 

(The rest ofthe  Article unchanged) 

TITLE VIA - FINAL PROVISIONS 

Article 60 

This  Convention  shall  replace,  in  relations  between  contracting  States,  the 
Brussels Convention  of 27 September  1968  on jurisdiction  and  enforcement  in  civil 
and  commercial  matters  as  modified  by  the  accession  Conventions  of  1978,  1982, 
1989 and  1996. 

Article 61 

1. 

This  Convention  shall  be  subject  to  adoption  by  the  Contracting  States  in 
accordance with their respective constitutional  requirements. 

2.  Contracting  States  shall  notify  the  depositary  of  the  completion  of  the 
procedures  laid  down  by  their  respective  constitutional  requirements  for 
adopting this Convention. 

40 

3. 

This  Convention  shall  enter  into  force  ninety  days  after  notification  under 
paragraph 2 by the last Member State to complete that  formality. 

4.  Until the entry into force of this Convention, any Contracting State may, when 
giving  the  notification  referred  to  in  paragraph  2  or  at  any  time  thereafter, 
declare  that  this  Convention  shall  apply  to  it  in  its  relationships  with  those 
Contracting  States which  have made the same declaration.  Such a declaration 
shall take effect  ninety days after the date of deposit. 

Article 62 

1.  Amendments  to  this  Convention  may  be  proposed  by  any  Contacting  State 
or by  the  Commission  of  the  European  Communities.  Any  proposal  for  an 
it  to 
amendment  shall  be  sent  to  the  depositary,  who  shall  forward 
the Council. 

2.  Amendments  shall  be  adopted  by  the  Council,  which  shall  recommend  that 
they  be adopted  by the Contracting  States in accordance  with  their  respective 
constitutional  requirements. 

3. 

Amendments  thus  adopted  shall  enter 
Article 61(3). 

into  force 

in  accordance  with 

4.  Without  prejudice  to  paragraphs  1, 2 and 3, the specimen  form  reproduced  in 
the  Annex  may  be  amended  by  the  Council,  acting  on  a  proposal  from  any 
Contacting  State or from the Commission. 

Deleted 

Article 63 

Article 64 

1. 

2. 

The  Secretary-General  of  the  Council  of  the  European  Union  shall  act  as 
depositary  of this Convention. 

shall 
depositary 
The 
European  Communities: 

(1) 

adoptions; 

publish 

in 

the  Official 

Journal 

of 

the 

(2) 

the date on which this Convention enters into force; 

(3) 

is  applied  as  between  two 
the  date  from  which  this  Convention 
Member States  and,  if  appropriate,  the  dates  of  application  for  the 
purposes of Article 61(4); 

(4)  declarations  made pursuant to Article VT of Protocol  No 1. 

The Protocols  annexed  to this Convention  shall be an integral  part of it. 

Article 65 

41 

Article 65a 

1.  The  Contracting  States  recognize  that  any  State  which  becomes  a 

Member State ofthe European Union shall accede to this Convention. 

2. 

For the purposes of negotiations for the accession of new Member States to the 
European  Union,  this  Convention  and  the  Protocols  annexed  to  it  shall  be 
considered to be part of the accumulated  body of Union law and practice that 
must be accepted in its entirety by all acceding States. 

3.  Before  signing  the  Treaty  of  Accession,  all  acceding  States  shall  furnish  the 
information required for the application of Articles 3, 32, 37, 40, 41, 46 and 55 
of this Convention and of Article 2 of Protocol No 2. 

This Convention is concluded for an unlimited period. 

Article 66 

Deleted 

Deleted 

Article 67 

Article 68 

42 

CERTIFICATE 

Article 46(2)  of the Convention  on jurisdiction  and  the recognition  and  enforcement  of 
judgments in civil and commercial matters 

(English,....) 

lrDOCtDyJEiNrril^gW 

1.1  Date  of notification  or  service of document  instituting  proceedings  (or  equivalent 
document): 

year: 

month: 

day: 

1.2  Notification or service procedure 

1.2.1  D to the addressee in person 
1.2.2 •  to another person 
1.2.3 D to addressee's address 
1.2.4 •  by post 

1.2.4.1 D without advice of delivery 
1.2.4.2 D with advice of delivery 

1.2.5 D other method 

2. JUDGMENT 

2.1.  Date: 
2.2.  Nature: 

year: 

month: 

day: 

2.2.1 •  decision on substance 
2.2.2 •  interlocutory decision 

2.3  Date of notification or service of the judgment: 

year: 

month: 

day: 

2.4  Notification or service procedure ofthe judgment 

2.4.1 •  to the addressee in person 
2.4.2 •  to another person 
2.4.3 •  to addressee's address 
2.4.4 •  by post 

2.4.4.1 D without advice of delivery 
2.4.4.2 D with advice of delivery 

2.4.5 •  other method 

2.5  Type of judgment: 

2.5.1 D parties heard 
2.5.2 •  in default/deemed to have been heard 

2.6  Date of hearing on substance: 

year: 

month: 

day: 

2.7  Court which gave judgment: 
2.7.1.  Type of court: 
2.7.2.  Place of court: 

43 

3 ; I D^ 

3.1  Plaintiff: 

3.2  Defendant: 

It is hereby certified  that: 

• 

• 

the  judgment  specified  above  is  one  to  which  the  Convention  on  jurisdiction 
and the  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters applies 

the said judgment  is enforceable  in the State  in which  it was given  (Article 31  of 
the  Convention) 

D  the said judgment is not subject to appeal. 
D  the said judgment  is enforceable  as provided for. 

Done at 

on. 

Signature and/or stamp 

44 

ANNEX 1 

PROTOCOL No  1 

THE HIGH CONTRACTING PARTIES HAVE AGREED on the following  provisions, 
which shall be annexed to the Convention: 

Article I 

Any  person  habitually  resident  in  Luxembourg  who  is  sued  in  a  court  of  another 
Contracting State pursuant to Article 5(1) may refuse to submit to the jurisdiction of that 
court.  If the defednatn  does not  enter  an appearance  the  court  shall  declare  of its own 
motion that it has no jurisdiction. 

An agreement conferring jurisdiction, within the meaning of Article  17, shall be valid with 
respect to a person habitually resident in Luxembourg only if that person has expressly 
and specifically so agreed. 

Article  n 

Without  prejudice  to  any  more  favourable  provisions  of  national  laws,  persons 
habitually resident  in  a  Contracting  State  who  are  being  prosecuted  in  the  criminal 
courts of another Contracting  State of which they are not  nationals for  an offence  which 
was not  intentionally  committed  may be defended  by persons qualified  to  do  so, even if 
they do not appear in person. 

(The rest ofthe Article unchanged) 

(unchanged) 

(First paragraph unchanged) 

(Second paragraph deleted) 

Article ni 

Article IV 

Article V 

The jurisdiction specified  in Articles 6(2) and  10 in actions on a warranty or guarantee or 
in any other  third  party  proceedings  may not  be  resorted  to  in the Federal  Republic of 
Germany or in Austria. Any person habitually resident in another Contracting  State may 
be sued in the courts. 

(The rest of  the Article unchanged) 

(unchanged) 

Articles Va and Vb 

45 

Deleted 

Article Vc 

Article Vd 

Without  prejudice  to the jurisdiction  ofthe  European Patent  Office  under the  Convention 
on the grant of European patents, signed at Munich on 5 October  1973, the courts of each 
Contracting  State  shall  have  exclusive  jurisdiction  in  proceedings  concerned  with  the 
registration  or  validity  of  any  European  patent  granted  for  that  State  which  is  not  a 
Community  patent  by  virtue  of  the  provisions  of  Article  86  of  the  Convention  for  the 
European patent for the common market,  signed at Luxembourg on  15 December  1975. 

Unchanged 

Article Ve 

Article VI 

The Contracting  States  shall communicate to  the  Secretary-General  of the Council  of the 
European  Union the text  of any provisions of their laws which amend  either those articles 
of their  laws mentioned  in the  Convention  or  the  lists  of  courts  specified  in  Section  2  of 
Title III ofthe  Convention. 

Article \TI 

This  Protocol  replaces,  in  relations  between  contracting  States,  the  Protocol  of 
27 September  1968,  annexed  to  the  Brussels  Convention  of  27  September  1968  on 
jurisdiction  and  enforcement  in  civil  and  commercial  matters,  as  amended  by  the 
Accession  Conventions of 1978,1982,1989 and 1996. 

JOINT DECLARATION No 1 

JOINT DECLARATION No 2 

(deleted) 

(deleted) 

46 

PROTOCOL No 2 

ANNEX  2 

drawn  up  on  the  basis  of  Article  K.3  of  the  Treaty  on  European  Union,  on  the 
interpretation  by  the  Court  of  Justice  of  the  Convention  on  jurisdiction  and  the 
recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters  in  the 
Member States ofthe  European Union 

THE HIGH CONTRACTING PARTIES, 

REFERRING  to  Article  52  of  the  Convention  on jurisdiction  and  the  recognition  and 
enforcement  of judgments  in  civil  or  commercial  matters  in  the  Member  States  of  the 
European  Union,  which  provides that  the Court  of Justice  of the European  Communities 
shall have jurisdiction to give rulings on the interpretation  of that  Convention, 

WISHING  to  regulate  the  conditions  under  which  the  Court  of  Justice  of  the 
to  give  rulings  on  questions  of 
European Communities  shall  have  jurisdiction 
interpretation ofthe  Convention and this Protocol, 

HAVE  AGREED  ON  THE  FOLLOWING  PROVISIONS,  WHICH  ARE  ANNEXED 
TO THE CONVENTION. 

Article 1 

In accordance with Article 52 ofthe  Convention  on jurisdiction  and  the  recognition 
and  enforcement  of judgments  in  civil or commercial  matters in the Member  States 
of  the  European  Union,  the  Court  of  Justice  of  the  European  Communities  shall 
have jurisdiction,  under the conditions laid down  in this Protocol, to give  rulings  on 
the interpretation  of the Convention  and this Protocol. 

Article 2 

1. 

The following  courts may request the Court  of Justice to give preliminary rulings on 
questions of interpretation:... 

(1) 

the following  highest courts of Member States: 

(2) 

unchanged 

(3) 

unchanged. 

2 

At  the  request  of  the  Member  State  concerned,  the  list  of  the  highest  courts 
referred  to in  paragraph  1(1)  may  be modified  by  a decision  of the  Council  of 
the European  Union. 

Unchanged 

Article 3 

Article 4 

1.  The  competent  authority  of  a  Contracting  State  or  the  Commission  of  the 

European Communities may request... (remainder unchanged). 

2-3.  Unchanged 

4. 

The  Registrar  of  the  Court  of  Justice  shall  give  notice  of  the  request  to  the 
Contracting  States,  to  the  Commission  of the European  Communities  and  to  the 
Council of the European  Union; they shall then be entitled within two months of 
the notification to submit statements of case or written observations to the Court. 

5.  Unchanged. 

Article 5 

1.  Except  where  this  Protocol  otherwise  provides,  the  provisions  of  the  Treaty 
establishing the European Community and those ofthe Protocol on the Statute of 
the Court of Justice annexed thereto, which are applicable when the Court of Justice 
is requested to give a preliminary ruling, shall also apply to any proceedings for the 
interpretation ôfthe Convention and the other instruments referred to in Article 1. 

2. 

The Rules of Procedure ofthe  Court of Justice shall, if necessary, be adjusted  and 
supplemented  in  accordance  with  Article  188  of  the  Treaty  establishing  the 
European Community. 

This Protocol may not be subject to any reservation. 

Article 6 

Deleted 

Articles 7-10 

Article 11 

For  the  purposes  of  Article 2(2),  the  Contracting  States  shall  communicate  to  the 
Secretary-General  of the Council of the European  Union the texts of any provisions of 
their laws which necessitate an amendment to the list of courts in point  1  of Article 2. 

Unchanged 

Article 12 

Article 13 

Any Contracting  State or the Commission of the European Communities may request 
the revision of this Protocol. In this event, a revision conference shall be convened by the 
President ofthe Council ofthe European Union. 

48 

Article 14 

This  Protocol  replaces,  in  relations  between  Contracting  States,  the  Protocol  of 
3 June  1971  on  interpretation  by  the  Court  of  Justice  of  the  Convention  of 
27 September  1968  on  Jurisdiction  and  enforcement  of  judgments  in  civil  and 
commercial  matters,  as  modified  by  Accession  Conventions  of  1978,  1982,  1989 
and 1996. 

49 

ANNEX 3 

COMMISSION SUGGESTIONS REGARDING 
REVISION OF THE LUGANO CONVENTION 

1.  The  Commission  suggests  that  the  amendments  to  be  made  to  Titles  I  to  IV  of 
the Brussels  Convention  in  response  to  its  proposals  should  also  be  made  to  the 
Lugano Convention. 

2. 

It further  suggests that Articles 5(1),  16(l)(b) and  17(5) ofthe  Lugano Convention 
be  aligned  on  the  corresponding  provisions  of  the  Brussels  Convention  and  that 
Article 28(2) be deleted accordingly. 

3.  Regarding the Transitional Provisions, the Commission proposes that: 

Article 54a be adjusted  to take account of the expiry of the three-year period 
provided for in respect of certain Lugano Contracting States; 

in  Article  54b  (and  Articles  60  and  61)  the  words/.'Member  States  ofthe 
European  Communities"  be 
the 
European Union"  and  that  the  reference  in  Article  54b(l)  be  to  "the 
Contracting States to the Brussels Convention". 

replaced  by  "Member  States  of 

4.  Regarding 

the  Final  Provisions, 

the  Commission  suggests 

the 

following 

amendments: 

1. 

(unchanged) 

Article 62 

2. 

In respect  of an acceding  State, the Convention  shall take effect  on the first day of 
the third month following the deposit of its instrument of accession. 

Article 63 

Each acceding State shall, when depositing its instrument  of accession, communicate the 
information  required  for  the  application  of  Articles  3,  32,  37,  40,  41  and  55  of  this 
Convention  and  make,  if  need  be,  the  declarations  prescribed  for  Protocol  No  1, 
determined at the time ofthe communication provided for by Article 62(l)(b). 

Article 63 a 

1. 

If an acceding  State wishes to introduce special provisions concerning jurisdiction, 
procedure  or  enforcement  in Protocol  No  1, negotiations  shall  be opened  to  that 
end.  A negotiating conference shall be convened by the Swiss Federal Council. 

2. 

The  Convention  as  amended  shall  require  ratification  by  the  Signatory  States. 
Instruments of ratification  shall be deposited with the Swiss Federal Council. 

50 

3. 

4. 

This Convention shall enter into force on the first day ofthe  third month  following 
the date on which two  States, of which one  is a Contracting  State  and  one  is an 
acceding State, deposit their instruments of ratification. 

In respect  of all other  Signatory  States, the Convention  shall have effect  from  the 
first  day ofthe third month following deposit of their instrument of ratification. 

(unchanged) 

1. 

(unchanged) 

Articles 64-66 

Article 67 

2. 

Following  each  accession,  the  depositary  shall  establish  the  text  of  the 
Convention.  He shall communicate a certified  copy of the Convention  to the 
Member States. 

51 

ISSN 0254-1475 

COM(97) 609 final 

DOCUMENTS 

EN 

01  06  09  10 

Catalogue  number  :  CB-CO-97-674-EN-C 

ISBN  92-78-28511-0 

ice  tor  ( X'licial  Publications  ofthe  European  Communities 

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