Opinion of the Economic and Social Committee on the 'Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters'
Date: 2000-03-01
Institutions: European Economic and Social Committee
Subjects: civil law, commercial law, judicial cooperation, jurisdiction, single market

C 117/6

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Official Journal of the European Communities

26.4.2000

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation (EC)
on jurisdiction and the recognition and enforcement of judgements in civil and commercial
matters’

(2000/C 117/02)

On 28 September 1999 the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 15 February 2000. The rapporteur was
Mr Malosse.

At its 370th plenary session of 1 and 2 March 2000 (meeting of 1 March) the Economic and Social
Committee adopted the following opinion unanimously.

1.

Introduction

One of the key innovations of the Amsterdam Treaty
1.1.
is to bring a substantial part of what is known as the third
pillar of the Union, i.e. justice and home affairs, within the
Community’s sphere of responsibility.

1.1.1.
In accordance with Article 2 of the revised Treaty,
the European Union has set itself the objective of maintaining
and developing the Union as an area of freedom, security and
justice, in which the free movement of persons is assured and
where litigants can assert
their rights, enjoying facilities
equivalent to those which they enjoy in the courts of their
own country.

1.2.
As part of the Council’s and Commission’s Action Plan
on how best to implement the provisions of the Treaty of
Amsterdam on the creation of an area of freedom, security
and justice, the Community has been asked to adopt the
measures pertaining to judicial cooperation in civil and
commercial matters needed for the smooth operation of the
single market.

The proposed regulation submitted to the Economic
1.3.
and Social Committee for its opinion was drafted with the
above in mind.
Indeed, for the single market to operate
smoothly, clear rules have to be defined setting out jurisdiction
litigation between companies and citizens of
in cases of
different Member States, in particular to specify which court
has jurisdiction. Similarly, it is necessary to set up mechanisms
to ensure the recognition and enforcement of court judge-
ments.

1.4.
In matters pertaining to jurisdiction and the recog-
nition and enforcement of judgements in civil and commercial
matters, the European Commission’s initiative does already
have a basis on which to build. In fact the Member States,
aware of the need to provide some legal certainty in cases of
litigation within the single market, had, as part of intergovern-
mental and bilateral cooperation, drafted a number of conven-
tions to this end. The most important of these was the so-called
‘Brussels’ Convention concluded on 27 September 1968
between the then six members of the European Community;

this Convention covered jurisdiction, recognition and enforce-
ment of judgements in civil and commercial matters.

1.4.1.
A Protocol on the interpretation of this Convention
by the Court of Justice of the European Communities was
signed in 1971. The Convention and the Protocol, which are
part of the ‘acquis’ since they were concluded on the basis of
Article 293 of the EEC Treaty, have been successively extended
to cover the new Member States. It should, however, be
pointed out that the current Brussels Convention, as amended
following the accession negotiations for Austria, Finland and
Sweden, has not yet entered into force in all the Member
States, as only a minority of them have ratified it.

1.5.
In parallel to the Brussels Convention, the Lugano
Convention, signed on 16 September 1988, takes up the
principles of the Brussels Convention between the Member
States of the EU and those of the European Free Trade
Association (EFTA).

2. The proposed regulation submitted by the European

Commission

2.1. The main provisions of the proposal

2.1.1.
bilateral conventions it is to replace, the regulation aims to:

Like the Brussels Convention and the numerous

— introduce uniform modern standards for jurisdiction in

civil and commercial matters;

— simplify the formalities governing the rapid and automatic
recognition and enforcement of the relevant judgements
by a simple and uniform procedure.

2.1.2.
On jurisdiction the proposal establishes the principle
of ‘the defendant’s domicile as the general ground for jurisdic-
tion’, i.e. the country in which the citizens or companies in
question have their legal domicile. The regulation does,
nevertheless, stipulate special provisions for some categories
of litigation.

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2.1.2.1. Contractual litigation

Litigation is normally lodged with the court for the place of
performance of the obligation in question:

— for the delivery of goods, it (the place of enforcement) will
be the place where, under the contract, the goods were, or
should have been, delivered;

— for the provision of services, it will be the place where the

services were, or should have been, provided;

— in matters relating to maintenance, in the courts for the

place where the creditor is domiciled;

— for litigation concerning relations between insurers and
insured persons, the insurer may be sued in the courts of
the place where the plaintiff
(insurance policyholder,
insured person or beneficiary) has his or her domicile;

— for contracts concluded by consumers — likewise to
protect the weaker party to the contract — the jurisdiction
of the country of domicile of the consumer will be
recognised, including cases where goods and services have
been purchased via electronic commerce;

— for employment contracts, the regulation recognises to the

place of domicile of the employee.

2.1.2.2. For litigations relating to tort, delict or quasi-delict

— The defendant may be sued in the court of the place where
the harmful event has occurred or there is a risk of it
occurring.

2.1.4. With regard to enforcement, the regulation is found-
ed on mutual trust between judicial authorities which must
allow implementation of judgements (order, decision or writ
of execution) in a Member State other than the state of origin
of the court judgement.

2.1.4.1.
The enforcement procedure existing in the Brussels
Convention, because of the length of time and cost involved,
considerably slowed down application of court decisions
within the Union. This procedure has therefore been simplified
in the Community’s draft regulation. Thus the court enjoying
jurisdiction, responsible for declaring the enforceability of a
decision in the state addressed, must limit its intervention to
straightforward formal checks on the documents presented in
support of the application in exequatur. The grounds for
non-execution cannot at this stage of the proceedings be raised
automatically by the judge, but may be reviewed on appeal by
the party against whom the enforcement is implemented.

2.1.4.2.
For provisional and protective measures, the regu-
lation stipulates that a foreign decision which has not yet been
declared enforceable in the state addressed, nevertheless does
establish the existence of a credit claim warranting provisional
and protective measures (according to the legislation of the
state addressed). Such a measure will protect the interests of
the creditor pending the enforcement decision.

The draft regulation only applies to those Member
2.1.5.
States having subscribed to the Treaty provisions on judicial
cooperation in civil matters; this excludes the United Kingdom,
Ireland and Denmark from its field of application. Thus
this draft regulation apparently constitutes a first
in the
Community’s legal system, even if these countries have the
option of aligning their approach on that of the twelve other
Member States. It now seems that the United Kingdom and
Ireland will opt to apply the regulation, while Denmark has
yet to decide. As regards litigation with nationals or companies
established in third countries, the national
laws of these
countries will apply, except in cases where there is a clause
allocating exclusive jurisdiction to one Member State.

2.1.2.3.
tion for some litigation,
concerning intellectual property rights,
Member State of deposit or registration.

The regulation also establishes exclusive jurisdic-
in cases
the

inter alia by specifying,

the court of

2.2.

Innovations vis-à-vis the Brussels Convention

the draft regulation
2.1.3. With regard to recognition,
establishes
the principle of automatic compliance with
decisions within the European Community. This arrangement
means that the same proceedings cannot be recommenced in
another Member State. If dispute proceedings are initiated, the
procedure used will be that provided for under the section on
enforcement. This same section sets out the grounds for
non-recognition or non-enforcement (Articles 41 and 42);
these grounds have been narrowed down quite considerably
in comparison to those set out in the Brussels Convention.

2.2.1.
The Brussels and Lugano Conventions provided the
for the draft regulation. These Conventions have
model
been undergoing revision since December 1997 and, before
ratification of the Amsterdam Treaty, the European Com-
mission had proposed a new Convention which was intended
to be an improvement on the current Convention. These
proposed improvements have naturally found their way into
the new proposal.

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2.2.2.
The main innovation lies in the fact that this is a
uniform draft regulation (and not a directive which could have
given rise to diverging national provisions).

regulation (such as the present proposal) and asked inter alia
for mechanisms to be set up for providing information to the
general public. The Committee welcomes the Commission’s
decision to convert this draft directive into a draft regulation.

2.2.3.
The draft regulation provides an autonomous defi-
nition of the legislation applying to commercial activities
relating to trade within the single European market: the sale of
goods and provision of services. These provisions obviate the
need for reference to the rules of international law and are
therefore intended to improve the legal certainty of trade.

2.2.4.
The draft regulation extends the possibility, for all
direct contracts with consumers, of applying the jurisdiction
of the consumer’s country of domicile, including for sales via
electronic commerce.

2.2.5.
The proposal simplifies the enforcement procedure
to a considerable extent by limiting the power of the judge,
thus promoting the free movement of judgements within the
Community.

The proposal restricts to some extent the scope of
2.2.6.
derogations which may allow appeals against the recognition
and enforcement of sentences issued in another Member State.
Thus, for example, one case where a derogation is allowed is
where ‘the declaration of enforceability is manifestly contrary
to public policy’. By adding the term ‘manifestly’, which was
not in the wording of the Brussels Convention, the scope of
the derogation has been restricted.

3. General comments

3.1. The scope of the opinion of the Economic and Social Committee

The entry into force of the Amsterdam Treaty has
3.1.1.
meant that the Committee can carry out its advisory role in
achieving the area of freedom, security and justice provided
for by the Treaty. This is a key area for civil society
organisations in Europe. In its capacity as sole institutional
body where civil society organisations are represented, the
Committee sees here an excellent opportunity for acting in the
interests of the people of the Union.

3.1.2.
At its plenary session of 20 and 21 October 1999,
the Committee adopted its Opinion on the Proposal for a
Council Directive on the service in the Member States of
judicial and extrajudicial documents in civil or commercial
matters (Rapporteur: Mr Herna´ndez Bataller) (1). In this opinion
the Committee supported the Commission’s proposal, but
regretted that it was in the form of a directive and not a

(1) OJ C 368, 20.12.1999, p. 47.

The Committee stresses the need for consistency
3.1.3.
between the two draft regulations since the ‘service’ of
documents is a pre-requisite to the ‘recognition and enforce-
ment’ of judgements. It therefore considers that information
and training measures for practitioners and citizens should be
designed using a consistent and broad-based approach to the
two texts.

3.2. The appropriateness of a Community instrument

Replacement of

3.2.1.
the Brussels Convention in the
twelve Member States participating without restriction in the
justice/security part of the Treaty, by a regulation with direct
application, does seem to represent significant progress, in
particular insofar as it will create greater legal certainty (one
single text instead of numerous conventions in a variety of
forms). Moreover, the Court of Justice will be able to ensure
uniform application of the provisions set out in the regulation
in all Member States.

3.2.2.
The Committee is pleased that the United Kingdom
and Ireland intend to apply the regulation and hopes that
Denmark will follow suit, in accordance with the appropriate
procedure,
regulation may be uniformly
implemented throughout the Community.

so that

this

4. Specific comments

4.1.

Improving enforcement procedures for court judgements

4.1.1.
It is clear from the conclusions of the European
Council in Tampere on 15 and 16 October 1999 that this
proposed regulation can only be considered as a step towards
the establishment of a genuine common judicial area, in which
citizens and businesses can assert and exercise their rights and
carry out their obligations in full legal certainty. Thus the
European Council in Tampere called on the Commission to
establish ‘minimum standards ensuring an adequate level of
legal aid in cross-border cases throughout the Union as well as
special common procedural rules for simplified and accelerated
cross-border litigation on small consumer and commercial
claims, as well as maintenance claims and on uncontested
claims’.

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4.1.2. E u r o p e a n i n s t r u m e n t o f e n f o r c e m e n t

The proposed regulation is to be endorsed in that
4.1.2.1.
it simplifies the exequatur procedure; however, it falls short of
establishing an efficient judicial area. Once the exequatur has
been obtained, instruments of enforcement still have to be
applied and these take many different forms across the Member
States. Although it would appear to be very difficult to
standardise enforcement procedures at the moment, the Com-
mittee proposes certain amendments relating, among other
things, to protective measures.

4.1.2.2.
Article 44 of the proposed regulation stipulates
that the applicant may avail himself of protective measures in
accordance with the law of the Member State addressed,
without a declaration of enforceability under Article 37 being
required. For creditors, therefore, this arrangement to some
extent opens the way for a ‘European instrument of enforce-
ment’. The provision remains inadequate, however, since, even
in this case, a court order is still required in some countries.
Thus, it would be useful to stipulate that a court judgement
made in another Member State without exequatur would be a
sufficient basis for applying certain enforcement procedures,
such as asset-freezing orders which exist in most EU countries.

4.1.3. T h e n e e d f o r s i m p l e a n d r a p i d r e d r e s s

p r o c e d u r e s

4.1.3.1.
The Committee had already stressed ‘the import-
ance of redress procedures that are rapid and easily accessible’
in its Opinion on the Proposal for a European Parliament and
Council Directive combating late payment in commercial
transactions (1). Proposals made in this connection were unfor-
tunately withdrawn by the Council from the proposed direc-
tive.

The Committee thus proposes that studies be
4.1.3.2.
carried out
including the
into comprehensive proposals,
simplification and acceleration of procedures and minimum
standards for legal aid.

4.1.3.3.
Regarding enforcement, the objective should be to
establish a European instrument of enforcement, which would
take effect throughout the Community as soon as a judgement
is passed. This idea was examined at the Tampere European
Council
in October 1999 and is fully supported by the
Committee.

4.1.4. T o w a r d s

a

E u r o p e a n i n s t r u m e n t

o f

e n f o r c e m e n t

4.1.4.1.
The Committee therefore calls for the European
instrument of enforcement to be set in train without delay,
particularly in those areas where there is some urgency:

(1) OJ C 407, 28.12.1998.

maintenance claims,
late wage payments,
late payments,
non-payment of wages as a result of company bankruptcy,
etc. Initially, the Committee proposes that the Commission
recognise the validity of this European instrument of enforce-
ment (automatic enforcement without making it subject to an
exequatur procedure) for indisputable claims. To establish
the concept of a European instrument of enforcement, the
Commission could propose the adoption of a ‘European’
recovery procedure for ‘European’ claims, with identical
arrangements in all Member States. Such a procedure could
operate and develop along lines similar to the payment
injunctions currently used in Germany and France. In the long
run, the general adoption of an arrangement such as this
would render the exequatur procedure meaningless since any
given judgement would comply with the same implementation
conditions in each Member State.

4.1.5. T o w a r d s a c o n v e r g e n c e o f r i g h t s

4.1.5.1.
In parallel, it would also be important to secure
convergence of civil and commercial rights within the Euro-
pean Union; in the longer term this is a condition for the
creation of a genuine area of freedom, justice and security.

4.2. Adapting the draft regulation to electronic commerce

4.2.1.
Article 15 of the proposal has provoked strong
concern within the business community and provides the
makings of a controversy. This article repeats the principle laid
down in Article 13 of the current Brussels Convention whereby
jurisdiction is held in the state of the consumer’s domicile.
According to Article 13 of the Brussels Convention, this
jurisdiction applies as long as the consumer has been subject
to a specific invitation or advertising in his state of domicile. In
Article 15 of the draft regulation, the European Commission’s
amendment is designed to take into account the development
of electronic commerce. The draft equates the offer of goods
and services via the Internet with an invitation or advertising
by businesses which ‘by any means, ... direct their activities
towards that Member State or to several countries including
that Member State’.

4.2.2.
The question is whether promoting its services on
the Internet means that a company is deliberately seeking to
expand beyond its traditional marketing area. Unlimited access
to the entire planet is peculiar to the Internet. It is perfectly
understandable, however, that the prospect of being brought
before foreign courts could deter small and medium-sized
enterprises from using the Internet to promote their services.
The European Union is, therefore, facing a two-fold challenge:
guaranteeing the best possible legal protection for its citizens
in relation to the development of electronic commerce and its
risks (particularly since it generally requires an advance

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payment by the consumer), while at the same time not
deterring European businesses, particularly SMEs, from using
this channel to promote their services. This challenge relates
primarily to the European judicial area, but also involves an
international dimension, particularly in terms of consumer
protection, as the majority of proposals on the ‘web’ originate
from businesses established in third countries.

their marketing activities to certain countries by actively
informing consumers. If necessary, a regulation specifically for
the sector could be considered, keenly encouraging mediation
and leaving the courts as a last resort.

4.3. Other recommended improvements to the current regulation

4.2.3.
The Committee would like to improve business/con-
sumer relations in this new form of distribution. It is therefore a
priority that the parties concerned develop confidence-building
mechanisms with support from the European authorities:
codes of good conduct, ‘cybertribunal’, recourse to mediation.
etc. Such measures will provide the best guarantees for the
effective development of electronic commerce and its use by
businesses and consumers and should also be considered at
international level. The Committee calls on the Commission
to take stock of existing good practices in this field world-wide,
and to support their application in Europe.

In order to make the new regulation easier to
4.3.1.
interpret,
the Committee would propose defining certain
concepts in line with the case law of the European Court of
Justice (ECJ). In relation to Article 5(3), for example, the ECJ
has defined the concept of matters relating to delict or
quasi-delict. Similarly, and again with an eye to clearer
interpretation, some articles of the proposal could be expanded
to bring them into line with ECJ case law. Examples include
matters relating to a contract or, in respect of third countries,
the principle of the place in which the obligation in question
was or is to be performed.

Pending results

4.2.4.
from these confidence-building
measures, the Committee recommends preserving Article 13
of the current Brussels Convention which grants jurisdiction
to the customer’s state of domicile. In order to further reinforce
consumer protection, the Committee feels that this principle
should be extended to cases where the consumer has been
induced, at the co-contractor’s instigation, to leave his home
country to conclude the contract. For electronic commerce,
however, the arrangement proposed in the new regulation
(‘....by any means, directs such activities to that Member State’)
is not clear enough to foster a climate of trust between the
parties. By retaining the definition of the current Article 13 of
the Convention (invitation or advertising in the Member State),
it is up to the judge to determine whether the consumer took
an active or passive role in receiving the information. There
needs to be a greater shift towards effective methods of dispute
settlement tailored to electronic commerce and respectful of
consumer protection.

4.2.5.
For the electronic commerce sector, the Committee
suggests a system of self-regulation which, without jeopardis-
ing access to the legal system, would encourage the introduc-
tion of automatic provisions for recourse to mediation,
particularly for small transactions below a certain amount, for
example EUR 2 500. Businesses should also be able to restrict

4.4. Encouraging out-of-court dispute settlement

4.4.1.
The Committee places particular emphasis on the
out-of-court settlement of disputes in civil and commercial
matters. This may take the form of arbitration, where the
parties agree to call upon an independent referee who renders
an award which is binding on the parties. It may take the form
of mediation and conciliation, where the two sides call upon a
third party to help them resolve their litigation; the parties
alone determine the outcome of the case; they are not bound
by any decision. The protracted and costly nature of judicial
proceedings is such that individuals and businesses, particularly
small and medium-sized enterprises, are soon discouraged
from starting proceedings. The Committee would also like to
see the development of procedures designed to bring about
agreement between the parties, particularly mediation in
disputes involving individuals, provided these are straightfor-
ward, quick and inexpensive.

4.4.2. With regard to mediation, it is crucial to guarantee
the quality of the service provided and the competence and
independence of the mediators, as described in the European
Commission Recommendation 98/257/EC concerning the
principles applicable to the bodies responsible for the out-
of-court settlement of consumer disputes. With this in mind,
it would be useful to step up European cooperation with an
eye to aligning provisions and training mediators in the
settlement of cross-border disputes.

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4.4.3.
The Committee welcomes the plans announced at
the Tampere Council to examine the measures promoting
these procedures in the Community. The Committee would
provide its contribution by issuing an own-initiative opinion
on the subject. This contribution would be all the more
significant as it would be the product of in-depth consultation
with the European civil society organisations responsible for
implementing these self-regulatory procedures.

interest groups,
trade unions, small businesses and craft
workers, the professions, and their associations. Such moves
to provide information should also include the compilation of
a ‘guide for cross-border users’ and the establishment of local
information relays (Eures network for cross-border workers,
Euro Info Centres for SMEs), so that information is widely
circulated about the new rights and duties within the new
common area of freedom, security and justice.

4.5.

Information for litigants (point 29 of the Tampere conclusions)

As in its Opinion on the Service in the Member
4.5.1.
States of
judicial and extrajudicial documents in civil or
commercial matters (rapporteur: Mr Herna´ndez Bataller), the
Committee underlines the importance of arrangements for
providing information to litigants, particularly to citizens, their

4.5.2.
As for the proposed regulation itself, the Committee
would propose drafting an information booklet, for users
(lawyers, associations, consumers etc.) and including a table
such as the one set out in the explanatory memorandum to
the draft, giving an article-by-article comparison with the
Brussels Convention. This information booklet would also deal
with the regulation on the Service of judicial and extrajudicial
documents in civil and commercial matters.

Brussels, 1 March 2000.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI