Proposal for a Council Decision concerning the conclusion of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
Date: 2008-02-29
Institutions: European Commission
Subjects: civil law, commercial law, enforcement of ruling, international convention, jurisdiction, ratification of an agreement

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.02.2008 
COM(2008) 116 final 

2008/0048 (AVC) 

Proposal for a 

COUNCIL DECISION 

concerning the conclusion of the Convention on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters 

(presented by the Commission) 

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1. Political and legal background 

EXPLANATORY MEMORANDUM 

On  16  September  1988,  the  Member  States  of  the  European  Communities  signed  with  the 
Republic  of  Iceland,  the  Kingdom  of  Norway,  and  the  Swiss  Confederation  the  Lugano 
Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. 
This Convention, referred to as the "Lugano Convention", extended the application of the rules 
of  the  1968  Brussels  Convention  on  the  same  subject  matter,  concluded  between  the  EC 
Member States, to certain States members of the European Free Trade Association. 

Negotiations on a revision of the 1968 Brussels and 1988 Lugano Conventions were undertaken 
during  the  years  1998-1999  in  the  context  of  an  ad  hoc  Working  Party  enlarged  with 
Switzerland,  Norway,  and  Iceland.  These  negotiations  led  to  the  adoption  of  a  text  of  a  draft 
convention prepared by the Working Party. This text was confirmed by the Council on 27 and 
28 May 1999 (JUSTCIV 60 of 30 April 1999). 

Since the entry into force of the Amsterdam Treaty on 1 May 1999, the matters covered by 
the  1968  Brussels  Convention  have  become  the  subject  of  Community  policy,  pursuant  to 
Articles 61(c) and 65 EC Treaty. As a result thereof, the 1968 Brussels Convention has been 
converted into a Regulation, in particular Regulation (EC) No 44/2001 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters. On that occasion, 
the  rules  of  the  Brussels  Convention  were  modernised  and  the  system  of  recognition  and 
enforcement was made more swift and efficient. 

In  the  light  of  the  parallelism  between  the  "Brussels"  (EC)  and  the  "Lugano"  regimes  on 
jurisdiction,  recognition and  enforcement of judgments in civil and commercial matters, the 
1988  Lugano  Convention  needs  to  be  adapted  in  order  to  reflect  the  evolution  of  the 
"Brussels"  regime.  In  particular,  it  is  important  to  align  the  system  of  recognition  and 
enforcement of judgments in order to achieve the same level of circulation of judgments with 
the EFTA States concerned. 

The  Commission  presented  on  22  March  2002  a  recommendation  for  a  Council  Decision 
authorising  the  Commission  to  open  negotiations  for  the  adoption  of  a  Convention  between 
the Community and, on the basis of the Protocol on its position, Denmark, of the one part, and 
Iceland, Norway, Switzerland and Poland, of the other, on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters to replace the Lugano convention 
of 16 September 1988 (SEC(2002) 298 final). 

At  its  Session  of  14  and  15  October  2002,  the  Council  adopted  negotiating  directives 
authorising the Commission to enter into negotiations on a new Lugano Convention. 

At  its  session  of  27-28  February  2003,  Council  decided  to  request  the  European  Court  of 
Justice  to  deliver  an  opinion  on  the  question  whether  the  conclusion  of  the  new  Lugano 
Convention resorts under the exclusive competence of the Community or whether it concerns 
a competence that is shared between the Community and the Member States. In its Opinion 
1/03 of 7 February 2006, the European Court of Justice has opined that the conclusion of the 
new Lugano Convention resorts entirely under the exclusive competence of the Community. 

Following the opinion of the Court, negotiations resumed and were finalised in Brussels on 28 
March 2007. Following the Council's Decision of 15 October 2007 on the signing, on behalf 
of the Community, of the new Lugano Convention, the Convention was signed in Lugano on 
30 October 2007. 

Pursuant to Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty 
on the European Union and the Treaty establishing the European Community, Denmark does 

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not participate in Title IV of the Treaty. As a consequence, Community instruments adopted 
in  the  field  of,  among  others,  judicial  cooperation  in  civil  matters  are  not  binding  upon  or 
applicable  in  Denmark.  As  a  result,  Denmark  participates  in  this  context  as  a  Contracting 
Party  to  the  new  Lugano  Convention.  As  between  the  other  EC  Member  States  and  the 
Kingdom  of  Denmark,  the  provisions  of  Regulation  (EC)  No  44/2001  apply  since  1  July 
2007,  pursuant  to  the  Agreement  between  the  European  Community  and  the  Kingdom  of 
Denmark  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and 
commercial matters, signed at Brussels on 19 October 2005. 

2. Results of the negotiations and signature of the Convention 

The  Commission  negotiated  the  new  Lugano  Convention  in  accordance  with  the  Council’s 
negotiating directives, coordinating with the special Committee designated by the Council to 
assist  the  Commission  during  negotiations.  Negotiations  were  finalised  in  Brussels  on  28 
March 2007. Following the Council's Decision of 15 October 2007 on the signing, on behalf 
of  the  Community,  of  the  new  Lugano  Convention,  the  latter  was  signed  in  Lugano  on  30 
October 2007. 

3. Conclusion 

In view of the positive outcome of the negotiations and the signature of the Convention, the 
Commission  recommends  that  the  Council  adopt  the  decision  concerning  the  conclusion  of 
the Convention on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters. 

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2008/0048 (AVC) 

Proposal for a 

COUNCIL DECISION 

concerning the conclusion of the Convention on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
61(c)  and  in  conjunction  with  the  first  subparagraph  of  Article  300(2)  and  the  second 
subparagraph of Article 300(3) thereof, 
Having regard to the proposal from the Commission1, 
Having regard to the assent of the European Parliament2, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

On  16  September  1988,  the  Member  States  of  the  European  Communities  signed  an 
international agreement with the Republic of Iceland, the Kingdom of Norway, and the 
Swiss  Confederation  on  jurisdiction  and  the  enforcement  of  judgments  in  civil  and 
commercial matters (the Lugano Convention),3 thereby extending to Iceland, Norway, 
and  Switzerland  the  application  of  the  rules  of  the  Brussels  Convention  of  27 
September 1968 on the same subject matter (the "Brussels Convention").4 

Negotiations on a revision of the 1968 Brussels and 1988 Lugano Conventions were 
undertaken  during  the  years  1998-1999  in  the  context  of  an  ad  hoc  Working  Party 
enlarged  with  Switzerland,  Norway,  and  Iceland.  These  negotiations  led  to  the 
adoption  of  a  text  of  a  draft  convention  prepared  by  the  Working  Party,  which  was 
confirmed by the Council on 27 and 28 May 1999. 

The  rules  of  the  Brussels  Convention  have  been  modernised  and  the  system  of 
recognition  and  enforcement  has  been  made  more  swift  and  efficient  by  Regulation 
(EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in 
civil and commercial matters.  

In  the  light  of  the  parallelism  between  the  Brussels  and  the  Lugano  Convention 
regimes  on  jurisdiction,  recognition,  and  enforcement  of  judgments  in  civil  and 
commercial  matters,  the  rules  of  the  Lugano  Convention  should  be  aligned  with  the 
rules of Regulation (EC) No 44/2001 in order to achieve the same level of circulation 
of judgments with the EFTA States concerned. 

(5) 

Pursuant  to  the  Protocol  on  the  position  of  Denmark  annexed  to  the  Treaty  on  the 
European  Union  (EU  Treaty)  and  the  Treaty  establishing  the  European  Community 

1 
2 
3 
4 

OJ C […] […], p. […]. 
OJ C […] […], p. […]. 
OJ L 319, 25.11.1988, p. 9 
1968  Brussels  Convention  on  jurisdiction  and  the  enforcement  of  judgments  in  civil  and  commercial 
matters, OJ C 27, 26.1.19982, p. 1 e.s. (consolidated version). 

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(EC Treaty), Denmark does not participate in Title IV of the EC Treaty. In order for 
the rules of the Lugano Convention to apply to Denmark, Denmark should participate 
as a Contracting Party to a new convention covering the same subject matter. 

By  Decision  of  27  September  2002,  the  Council  authorised  the  Commission  to 
negotiate a convention between the Community and, on the basis of the Protocol on its 
position, Denmark, of the one part, and Iceland, Norway, Poland, and Switzerland, of 
the  other,  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil 
and commercial matters to replace the Lugano Convention. 

The Commission has negotiated  such convention, on behalf of  the  Community,  with 
the  Republic  of  Iceland,  the  Kingdom  of  Norway,  the  Swiss  Confederation,  and  the 
Kingdom  of  Denmark.  The  Convention  was  signed,  on  behalf  of  the  European 
Community, on 30 October 2007, subject to its possible conclusion at a later date, in 
accordance with Council Decision of 15 October 2007. 

The  Community  committed  to  make  a  declaration,  at  the  time  of  ratification  of  the 
Convention,  that  it  intends  to  clarify  the  scope  of  Art.  22(4)  of  Council  Regulation 
(EC)  No  44/2001  with  a  view  to  taking  into  account  the  relevant  case-law  of  the 
European Court of Justice with respect to proceedings concerned with the registration 
or  validity  of  intellectual  property  rights,  thereby  ensuring  its  parallelism  with  Art. 
22(4) of the Convention. In this context, reference shall be made to the study made to 
evaluate the application of Regulation (EC) No 44/2001. 

The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the 
position  of  the  United Kingdom  and  Ireland  annexed  to  the EU  Treaty  and  the  EC 
Treaty, are taking part in the adoption and application of this Decision. 

In accordance with Articles 1 and 2 of the above-mentioned Protocol on the position 
of Denmark, Denmark does not take part in the adoption of the present Decision and is 
not bound by it or subject to its application. 

(6) 

(7) 

(8) 

(9) 

(10) 

(11)  The Convention should now be concluded. 

HAS DECIDED AS FOLLOWS:  

Article 1 

The Convention on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial  matters  to  replace  the  Lugano  Convention  of  16  September  1988  shall  be 
concluded  on  behalf  of  the  European  Community.  When  depositing  its  instrument  of 
ratification, the Community shall make the declaration provided for in annex to this Decision.  

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Article 2 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
deposit the instrument of ratification as provided for in Article 69(2) of the Convention. 

Done at Brussels,  

For the Council 
The President 

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ANNEX 

Declaration on the part of the European Community 

The European Community hereby declares that, when modifying Council Regulation (EC) No 
44/2001  on  jurisdiction,  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters, it intends to clarify the scope of Art. 22(4) of that Regulation with a view to taking 
account of the relevant case-law of the European Court of Justice with respect to proceedings 
concerned with the registration or validity of intellectual property rights, thereby ensuring its 
parallelism  with  Art.  22(4)  of  the  Convention  while  taking  into  account  the  results  of  the 
evaluation of the application of Regulation (EC) No 44/2001.  

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