Report from the Commission to the European Parliament, the Council and THE European Economic and Social Committee on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
Date: 2009-04-21
Institutions: European Commission
Subjects: Denmark, Iceland, Norway, Switzerland, agreement (EU), civil law, commercial law, jurisdiction

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.4.2009 
COM(2009) 174 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters 

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters 

1. 

INTRODUCTION 

1.1. 

Background 

Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters ("Brussels I")1, hereafter "the Regulation", is the 
matrix  of  European  judicial  cooperation  in  civil  and  commercial  matters.  It  lays  down 
uniform rules to settle conflicts of jurisdiction and facilitate the free circulation of judgments, 
court  settlements  and  authentic  instruments  in  the  European  Union.  It  replaced  the  1968 
Brussels  Convention  on  jurisdiction  and  the  enforcement  of  judgments  in  civil  and 
commercial  matters,  as  amended  by  several  conventions  on  the  accession  of  new  Member 
States to that Convention (hereinafter the “Brussels Convention”)2.  

The European Community and Denmark have concluded an agreement on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters which ensures the 
application  of  the  provisions  of  the  Regulation  in  Denmark  as  of  1  July  20073.  The  1988 
Lugano  Convention  governing  the  same  subject  matter  binds  the  Member  States,  including 
Denmark,  on  the  one  hand  and  Iceland,  Norway,  and  Switzerland  on  the  other  hand4.  This 
latter  convention  will  be  replaced,  in  the  near  future,  by  a  convention  concluded  by  the 
Community, Denmark and the above-mentioned States5. 

1.2. 

This Report 

This report has been prepared in accordance with Article 73 of the Regulation, on the basis of 
a  general  study  commissioned  by  the  Commission  on  the  practical  application  of  the 
Regulation6. Furthermore, the Commission requested a study aimed at analysing the existing 
national  jurisdiction  rules  that  apply  in  cases  where  the  defendant  is  not  domiciled  in  a 
Member  State  ("subsidiary  jurisdiction")7.  The  Commission  further  requested  a  study8  to 
evaluate the impact of a possible ratification, by the Community, of the Hague Convention on 
choice-of-court agreements9. This report has also taken into account a study on enforcement 

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OJ L 12, 16.1.2001, p.1.  
OJ C 27, 26.1.1998, p. 1.  
OJ L 299, 16.11.2005, p. 62.  
OJ L 319, 25.11.1988. 
OJ L 339, 21.12.2007, p. 1. 
The study, hereafter referred to as the "general study", was prepared by Prof. Dr. B. Hess, Prof. Dr. T. 
Pfeiffer, and Prof. Dr. P. Schlosser. It is available at: 
http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 
The study was prepared by Prof. A. Nuyts. It is available at: 
http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 
The study was prepared by GHK Consulting. It is available at 
http://ec.europa.eu/dgs/justice_home/evaluation/dg_coordination_evaluation_annexe_en.htm 
See the Commission's proposal to sign the Convention COM(2008) 538 and SEC(2008) 2389, 5.9.2008. 

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of judicial decisions in the European Union, which the Commission commissioned in 200410. 
Finally,  in  the  course  of  2005,  the  European  Judicial  Network  in  Civil  and  Commercial 
Matters provided information on the practical application of the Regulation on the basis of a 
questionnaire prepared by the Commission. 

This  report  aims  at  presenting  to  the  European  Parliament,  the  Council  and  the  European 
Economic  and  Social  Committee  an  assessment  on  the  application  of  the  Regulation.  It  is 
accompanied by a Green Paper which makes some suggestions on possible ways forward with 
respect  to  the  points  raised  in  this  report.  Both  documents  serve  as  the  basis  for  a  public 
consultation on the operation of the Regulation.  

2. 

THE APPLICATION OF THE REGULATION IN GENERAL 

2.1. 

Statistical data on the application of the Regulation 

In most Member States, there is no systematic collection of statistical data on the application 
of the Regulation. It has been possible, however, to gather some data from central databases 
of  the  Ministries  of  Justice  in  certain  Member  States,  direct  contacts  with  the  courts  in  the 
Member States, interviews with other stakeholders, commercial and academic databases, and 
publications in legal literature.  

A distinction must be made between the jurisdiction rules on the one hand and the rules on 
recognition  and  enforcement  of  judgments  on  the  other  hand.  In  general,  the  Regulation  is 
mostly applied in economic centres and border regions. The jurisdiction rules generally apply 
in a relatively small number of cases, ranging from less than 1% of all civil cases to 16% in 
border regions11. The rules on recognition and enforcement are more frequently applied but it 
has  not  been  possible  to  obtain  comprehensive  data  on  the  number  of  declarations  of 
enforceability delivered by the courts. The numbers range from very low (e.g. 10 declarations 
in  2004  in  Portugal)  to  higher  (e.g.  420  declarations  in  2004  in  Luxembourg)  with  again  a 
peak  in  border  regions  (e.g.  301  declarations  in  the  courts  of  the  Landgericht  Traunstein  in 
Germany, located near the Austrian border). 

2.2. 

General evaluation of the Regulation 

In  general,  the  Regulation  is  considered  to  be  a  highly  successful  instrument,  which  has 
facilitated cross-border litigation through an efficient system of judicial cooperation based on 
comprehensive  jurisdiction  rules,  coordination  of  parallel  proceedings,  and  circulation  of 
judgments.  The  system  of  judicial cooperation laid down in the Regulation has successfully 
adapted to the changing institutional environment (from intergovernmental cooperation to an 
instrument  of  European  integration)  and  to  new  challenges  of  modern  commercial  life.  As 
such, it is highly appreciated among practitioners. 

This  general  satisfaction  with  the  operation  of  the  Regulation  does  not  exclude  that  the 
functioning of the Regulation may be improved.  

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Study  on  making  more  efficient  the  enforcement  of  judicial  decisions  within  the  European  Union: 
transparency of a debtor's assets, attachment of bank accounts, provisional enforcement and protective 
measures. The study was prepared by Prof. dr. B. Hess and is available at: 
http://ec.europa.eu/civiljustice/publications/docs/enforcement_judicial_decisions_180204_en.pdf 
Statistics based on data gathered from the years 2003 through 2005 mainly. 

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3. 

SPECIFIC EVALUATION OF CERTAIN POINTS OF THE REGULATION 

3.1. 

The abolition of exequatur 

Following  the  political  mandate  by  the  European  Council  in  the  Tampere  (1999)  and  The 
Hague (2004) programs12, the main objective of the revision of the Regulation should be the 
abolition of the exequatur procedure in all matters covered by the Regulation.  

As  regards  the  existing  exequatur  procedure,  the  general  study  shows  that,  when  the 
application is complete, first instance proceedings before the courts in the Member States tend 
to last, on average, from 7 days to 4 months. When, however, the application is incomplete, 
proceedings  last  longer.  Applications  are  often  incomplete  and  judicial  authorities  ask  for 
additional  information,  in  particular  translations.  Most  applications  for  a  declaration  of 
enforceability  are  successful  (between  90%  and  100%).  Only  between  1  and  5%  of  the 
decisions  are  appealed.  Appeal  proceedings  may  last  between  one  month  and  three  years, 
depending on the different procedural cultures in the Member States and the workload of the 
courts. 

In  cases  where  the  declaration  of  enforceability  is  challenged,  the  ground  of  refusal  of 
recognition  and  enforcement  most  frequently  invoked  is  the  lack  of  appropriate  service 
pursuant to Article 34(2). However, the general study shows that such challenges are rarely 
successful today13. As to public policy, the study shows that this ground is frequently invoked 
but rarely accepted. If it is accepted, this mostly occurs in exceptional cases with the aim of 
safeguarding  the  procedural  rights  of  the  defendant14.  It  seems  extremely  rare,  in  civil  and 
commercial matters, that courts would apply the public policy exception with respect to the 
substantive  ruling  by  the  foreign  court.  The  other  grounds  for  refusal  are  rarely  invoked. 
Irreconcilability between judgments is to a great extent avoided, at least at European level, by 
the operation of the Regulation's rules on lis pendens and related actions. As for the control of 
certain jurisdiction rules, it should be considered whether this still fits with the prohibition of 
review  of  a  foreign  court's  jurisdiction;  in  addition,  the  practical  importance  of  the  rule  is 
limited in that the court is bound in any event by the findings of fact by the court of origin. 

3.2. 

The operation of the Regulation in the international legal order 

As  the  successor  of  the  Brussels  Convention,  the  Regulation  takes  the  perspective  of  the 
defendant  in  court  proceedings.  In  this  perspective,  most  of  the  jurisdiction  rules  of  the 
Regulation apply only when the defendant is domiciled in a Member State. If the defendant is 
not  domiciled  in  a  Member  State,  the  Regulation  refers  to  national  law  ("subsidiary 
jurisdiction"),  with  the  exception  of  situations  where  the  courts  of  a  Member  State  have 
exclusive  jurisdiction  pursuant  to  Articles  22  or  23  of  the  Regulation  or  in  certain  types  of 
disputes concerning specific subject matters (e.g. Community trademarks)15.  

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The  Council  conclusions  have  been  implemented  in  the  Programme  of  Mutual  Recognition  in  Civil 
Matters (OJ C 12, 15.1.2001) and the Action Plan implementing the Hague Programme - COM(2006) 
331. 
This  is  particularly  the  result  of  the  deletion  in  the  Regulation  of  the  requirement  of  regular  service 
which has reduced the possibilities for abuse on the part of defendants. 
See, for instance, Case C-7/98 (Krombach). 
Regulation (EC) No 40/94 on the Community trademark (OJ L 11, 14.1.1994, p. 1). 

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The  operation  of  the  Regulation  in  the  international  legal  order  has  been  the  subject  of  a 
number  of  preliminary  questions  referred  to  the  European  Court  of  Justice.  In  Case  412/98 
(Josi),  the  Court  clarified  that  the  jurisdiction  rules  of  the  Regulation  (previously  the 
Convention)  apply  in  a  dispute  between  a  defendant  domiciled  in  a  Member  State  and  a 
claimant domiciled in a third State. As a result, defendants domiciled  in the Member States 
may rely on the protection offered by the Regulation in disputes involving parties domiciled 
in third States. In Case C-281/02 (Owusu), the Court held that the rules of the Regulation, in 
particular  the  basic  rule  of  the  jurisdiction  of  the  courts  of  the  defendant's  domicile,  are 
mandatory in nature and their application cannot be set aside on the basis of national law. This 
is the case, not only in relation to other Member States, but also when the dispute is connected 
to  a  third  State  and  shows  no  other  connecting  factors  to  other  Member  States.  Finally,  the 
operation of the Regulation with respect to third States has been analysed by the Court in its 
Opinion 1/03. In that opinion, the Court suggests in particular that the jurisdiction rules of the 
Regulation  apply  when  the  defendant  is  domiciled  in  a  Member  State  in  cases  where  the 
connecting  factors  for  exclusive  jurisdiction  under  Articles  22  and  23  of  the  Regulation  are 
situated in a third State (no so-called "effet réflexe"). 

The absence of harmonised rules on subsidiary jurisdiction causes an unequal access to justice 
for Community citizens. The study on residual jurisdiction shows that this is particularly the 
case in situations where a party would not get a fair hearing or adequate protection before the 
courts of third States. The study equally shows that the absence of common rules determining 
jurisdiction  against  third  State  defendants  may  jeopardize  the  application  of  mandatory 
Community  legislation,  for  example  on  consumer  protection  (e.g.  time  share),  commercial 
agents,  data  protection  or  product  liability.  In  Member  States  where  no  additional 
jurisdictional  protection  exists,  consumers  cannot  bring  proceedings  against  third  State 
defendants.  The  same  is  true,  for  instance,  for  employees,  commercial  agents,  victims  of 
competition law infringements or of product liability torts, and individuals who intend to avail 
of the rights afforded by EU data protection legislation. In all these areas, where mandatory 
Community  legislation  exists,  Community  claimants  may  be  deprived  of  the  protection 
offered to them by the Community rules.  

In  addition,  the  absence  of  common  rules  on  the  effect  of  third  State  judgments  in  the 
Community may in certain Member States lead to situations where third State judgments are 
recognised and enforced even where such judgments are in breach of mandatory Community 
law or Community law provides for exclusive jurisdiction of Member States' courts. 

Finally,  the  study  on  residual  jurisdiction  shows  that  the  absence  of  harmonised  rules 
determining the cases where the courts of the Member States can decline their jurisdiction on 
the  basis  of  the  Regulation  in  favour  of  the  courts  of  third  States  generates  a  great  deal  of 
confusion and uncertainty. 

3.3. 

Choice of court 

The  law  applicable  to  choice  of  court  agreements.  While  Article  23  of  the  Regulation,  as 
interpreted by the European Court of Justice, extensively lays down the conditions concerning 
the validity of choice of forum agreements, uncertainties exist as to the exhaustive character 
of these conditions. The study shows that in some instances, besides the uniform conditions 
laid  down  in  the  Regulation,  the  consent  between  the  parties  is  made  subject,  on  a  residual 
basis, to national law, determined either by reference to the lex fori or to the lex causae. This 
leads  to  undesirable  consequences,  in  that  a  choice  of  court  agreement  may  be  considered 
valid in one Member State and invalid in another.  

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Choice  of  court  and  lis  pendens.  Concerns  have  been  voiced  that  the  Regulation  would  not 
sufficiently  protect  exclusive  choice  of  court  agreements.  These  concerns  follow  from  the 
possibility  that  one  party  to  such  an  agreement  seizes  the  courts  of  a  Member  State  in 
violation of the choice of court agreement, thereby obstructing proceedings before the chosen 
court insofar as the latter are brought subsequently to the first proceedings. In Case C-116/02 
(Gasser),  the  European  Court  of  Justice  has  confirmed  that  the  lis  pendens  rule  of  the 
Regulation requires the court second seized to suspend proceedings until the court first seized 
has  established  or  declined  jurisdiction.  In  Case  C-159/02  (Turner),  the  Court  further 
confirmed that procedural devices which exist under national law and which may strengthen 
the effect of choice of court agreements (such as anti-suit injunctions) are incompatible with 
the Regulation if they unduly interfere with the determination by the courts of other Member 
States of their jurisdiction under the Regulation.  

The  resulting  parallel  proceedings  may  lead  to  delays  which  are  detrimental  to  the  proper 
functioning  of  the  internal  market.  In  some  cases,  a  party  may  make  use  of  such  delays  to 
effectively frustrate a valid choice of court agreement, thereby creating an unfair commercial 
advantage  for  itself16.  Parallel  proceedings  equally  create  additional  costs  and  uncertainty. 
Also,  a  tendency  has  been  reported  on  the  part  of  lenders  in  corporate  loan  transactions  to 
institute proceedings pre-maturely so as to ensure the jurisdiction of the court designated in 
the  agreement,  with  the  negative  economic  consequences  this  has  in  terms  of  triggering 
default and cross-default clauses in loan agreements. These situations are particularly resented 
in specific circumstances, such as when the first proceedings are limited to obtaining negative 
declaratory relief, which has the effect of completely blocking proceedings on the merits. 

The Hague Convention on choice of court agreements. The Commission has proposed to sign 
the Convention on choice of court agreements that was concluded on 30 June 2005 under the 
auspices of the Hague Conference on Private International Law17. The Convention will apply 
in all cases where at least one of the parties resides in a Contracting State other than an EU 
Member  State,  whereas  the  Regulation  applies  where  at  least  one  party  is  domiciled  in  a 
Member State. As a result, a coherent application of the rules of the Convention and those of 
the Regulation should be ensured. The main question is whether it is appropriate to maintain 
two different legal regimes, even in coordinating jurisdiction between the courts of Member 
States,  depending  on  whether  or  not  one  of  the  parties  is  domiciled  in  a  third  State18.  With 
respect to the question of parallel proceedings, the Convention does not contain a direct rule 
on lis pendens; the court designated by the agreement may proceed notwithstanding parallel 
proceedings being brought elsewhere. Any other court should suspend or dismiss proceedings 
except in a number of limited situations defined in the Convention.  

3.4. 

Industrial property 

The operation of the rules of  the Regulation in industrial property  matters  raises difficulties 
both  for  the  holder  of  such  rights  and  those  who  wish  to  challenge  them.  A  first  difficulty 
concerns the operation of the lis pendens rule. Industrial property litigation is one of the areas 
where parties have attempted to pre-empt the exercise of jurisdiction by a competent court by 
starting proceedings before another court which usually, though not always, lacks jurisdiction, 

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It must be noted, however, that no statistics are available to show whether such behaviour is frequent. 
COM(2008) 538, 5.9.2008. 
An  extensive  analysis  of  the  different  situations  arising  under  The  Hague  Convention  and  the 
Regulation  can  be  found  in  the  above-mentioned  impact  study,  in  particular  Annex  IV  thereof  (cf. 
footnote 8). 

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preferably in a State where the proceedings to decide on the jurisdiction issue and/or on the 
merits  take  a  long  time.  Such  tactics  ("torpedoes")  may  be  particularly  abusive  if  the  first 
proceedings  are  aimed  at  a  declaration  of  non-liability,  thereby  effectively  preventing 
proceedings on the merits by the other party before a competent court. They may even lead to 
a situation that no claim for damages may be brought at all: for instance, when a court seized 
of a patent infringement action has declined jurisdiction because of the prior introduction of 
an  action  for  declaratory  relief  in  another  Member  State,  it  may  be  that  the  infringement 
proceedings  cannot  be  resumed  subsequently  and  that  the  courts  seized  of  the  declaratory 
relief do not have jurisdiction with respect to the infringement claim.  

Torpedoes  are  not  only  used  with  respect  to  declaratory  relief,  but  also  with  respect  to 
counterclaims based on the invalidity of an industrial property right such as a patent raised in 
infringement  actions.  Defendants  in  infringement  proceedings  may  effectively  block  these 
proceedings by raising, as a defence, the alleged invalidity of the patent19. Since proceedings 
concerning the validity of patents must be brought before the courts of the Member State in 
which  the  patent  has  been  registered,  the  infringement  court  is  obliged  to  stay  proceedings 
pending  the  outcome  of  the  proceedings  concerning  the  validity.  This  may  cause  serious 
delay,  in  particular  when  the  defendant  does not  (swiftly)  bring  the  proceedings  concerning 
the validity issue. In addition, positive declaratory relief concerning the validity on the part of 
the victim of the industrial property right infringement is not available in all Member States.  

A  next  difficulty  which  is  reported  in  the  context  of  patent  litigation  is  the  impossibility  to 
bring  consolidated  proceedings  against  several  infringers  of  a  European  patent  where  the 
infringers belong to a group of companies and act in accordance with a coordinated policy20. 
The obligation to bring proceedings in each of the jurisdictions concerned would entail high 
costs for the victims and hamper an efficient handling of the claims.  

3.5. 

Lis pendens and related actions 

The application of the lis pendens and related actions rules of the Regulation has also raised 
concerns in some other cases.  

With respect to exclusive jurisdiction under Article 22 of the Regulation, the study does not 
show an immediate practical need for exceptions to the priority rule. Nevertheless, the use of 
torpedoes  has  been  reported  in  other  specific  areas  such  as  corporate  loan  and  competition 
cases.  As  a  result,  it  should  be  reflected  whether  the  need  arises  to  improve  the  existing lis 
pendens  rule  in  general  in  order  to  prevent  abusive  procedural  tactics  and  ensure  a  good 
administration of justice in the Community.  

With respect to the rule on related actions, the requirement that both actions must be pending 
before  the  courts  and  the  reference  to  national  law  for  the  conditions  of  consolidation  of 
related  actions  hampers  an  effective  consolidation  of  proceedings  at  Community  level.  It  is 
currently not possible on the basis of the Regulation to group actions, in particular actions of 
several plaintiffs against the same defendant, before the courts of one Member State21. Such 
consolidation  is  frequently  needed,  for  instance  for  purposes  of  consumer  collective  redress 

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Case C-315/01 (GAT). 
Case C-539/03 (Roche Nederland). 
Article 6(1) currently allows to group actions against several defendants only. 

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and damages actions for breach of the EC antitrust rules.22 Also, the decline of jurisdiction by 
the court second seized pursuant to Article 28(2) may lead to a (temporary) negative conflict 
of jurisdiction if the first court does not take jurisdiction with respect to the action concerned.  

One  of  the  major  novelties  in  the  Regulation  was  the  introduction  of  a  definition  of  the 
moment  in  time  when  proceedings  are  considered  to  be  pending  for  purposes  of  the  lis 
pendens  and  related  actions  rules.  This  definition  generally  seems  to  have  operated 
satisfactorily.  Nevertheless,  some  uncertainties  about  its  interpretation  have  arisen  which  it 
may  be  appropriate  to  clarify,  for  instance,  concerning  the  authority  responsible  for  service 
and  the  date  and  time  of  lodging  with  the  court  or  receipt  by  the  authority  responsible  for 
service. 

3.6. 

Provisional measures 

Provisional measures remain an area where the diversity in the national procedural laws of the 
Member States makes the free circulation of such measures difficult.  

A  first  difficulty  arises  with  respect  to  protective  measures  ordered  without  the  defendant 
being summoned to appear and which are intended to be enforced without prior service of the 
defendant.  In  Case  C-125/79  (Denilauler),  the  Court  of  Justice  held  that  such  ex  parte 
measures fall outside the scope of the recognition and enforcement system of the Regulation. 
It  is not entirely clear,  however,  whether such measures can be recognised and enforced on 
the  basis  of  the  Regulation  if  the  defendant  has  the  opportunity  to  contest  the  measure 
subsequently.  

A second difficulty arises with respect to protective orders aimed at obtaining information and 
evidence. In Case C-104/03 (St. Paul Dairy), the Court of Justice held that a measure ordering 
the hearing of a witness for the purpose of enabling the applicant to decide whether to bring a 
case  is  not  covered  by  the  notion  of  provisional  including  protective  measures.  It  is  not 
entirely clear to what extent such orders are, as a general matter, excluded from the scope of 
Article  31  of  the  Regulation.  It  has  been  suggested  that  better  access  to  justice  would  be 
ensured  if  the  Regulation  established  jurisdiction  for  such  measures  at  the  courts  of  the 
Member State where the information or evidence sought is located, besides the jurisdiction of 
the courts having jurisdiction with respect to the substance of the matter. This is particularly 
important in intellectual property matters, where evidence of the alleged infringement must be 
secured  by  search  orders,  "saisies  contrefaçon"  or  "saisies  description"23,  and  in  maritime 
matters. 

Further difficulties have been reported with respect to the application of the conditions set by 
the Court of Justice in Cases C-391/95 (Van Uden) and C-99/96 (Mietz) for the issuance of 
provisional measures ordered by a court which does not have jurisdiction on the substance of 
the matter. In particular, it is unclear how the "real connecting link between the subject matter 
of the measure sought and the territorial jurisdiction" should be interpreted. This is the case, 
in particular, when the measure aims at obtaining an interim payment or more generally does 
not concern the seizing of property.  

Finally, the requirement that repayment must be guaranteed in the case of interim payments 
has given rise to difficulties of interpretation and may lead to high costs if it is considered that 

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23 

See  the  Green  Paper  on  consumer  collective  redress  -  COM(2008)  794,  27.11.2008  -  and  the  White 
Paper on damages actions for breach of the EC antitrust rules - COM(2008) 165, 2.4.2008.  
See, in this respect, Articles 7 and 9 of Directive 2004/48/EC. 

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such  repayment  may  only  be  secured  by  the  provision  of  bank  guarantees  on  the  part  of 
applicants.  

3.7. 

The interface between the Regulation and arbitration 

Arbitration  falls  outside  the  scope  of  the  Regulation.  The  rationale  behind  the  exclusion  is 
that  the  recognition  and  enforcement  of  arbitral  agreements  and  awards  is  governed  by  the 
1958 New York Convention, to which all Member States are parties. Despite the broad scope 
of  the  exception,  the  Regulation  has  in  specific  instances  been  interpreted  so  as  to  support 
arbitration and the recognition/enforcement of arbitral awards. Judgments merging an arbitral 
award  are  frequently  (though  not  always)  recognised  and  enforced  in  accordance  with  the 
Regulation.  Provisional  measures  relating  to  the  merits  of  arbitration  proceedings  may  be 
granted on the basis of Article 31 provided that the subject-matter of the dispute falls within 
the scope of the Regulation24. 

The study shows that the interface between the Regulation and arbitration raises difficulties. 
In particular, even though the 1958 New York Convention is generally perceived to operate 
satisfactorily,  parallel  court  and  arbitration  proceedings  arise  when  the  validity  of  the 
arbitration  clause  is  upheld  by  the  arbitral  tribunal  but  not  by  the  court;  procedural  devices 
under national law aimed at strengthening the effectiveness of arbitration agreements (such as 
anti-suit  injunctions)  are  incompatible  with  the  Regulation  if  they  unduly  interfere  with  the 
determination  by  the  courts  of  other  Member  States  of  their  jurisdiction  under  the 
Regulation25;  there  is  no  uniform  allocation  of  jurisdiction  in  proceedings  ancillary  to  or 
supportive of arbitration proceedings26; the recognition and enforcement of judgments given 
by  the  courts  in  disregard  of  an  arbitration  clause  is  uncertain;  the  recognition  and 
enforcement of judgments on the validity of an arbitration clause or setting aside an arbitral 
award  is  uncertain;  the  recognition  and  enforcement  of  judgments  merging  an  arbitration 
award is uncertain; and finally, the recognition and enforcement of arbitral awards, governed 
by  the  NY  Convention,  is  considered  less  swift  and  efficient  than  the  recognition  and 
enforcement of judgments. 

3.8. 

Other issues 

In addition to the main points addressed above, the following issues have been raised.  

3.8.1. 

Scope 

As far as scope is concerned, no substantial practical problems have been reported beside the 
arbitration  point  discussed  above.  The  interpretative  rulings  by  the  Court  of  Justice  give 
appropriate  guidance  for  the  interpretation  of  the  terms  "civil  and  commercial  matters"  and 
the exclusions from the Regulation's scope. The general study nevertheless shows difficulties 
in the practical application of Article 71 concerning the relation between the Regulation and 
conventions on particular matters. 

24 
25 
26 

Case C-391/95 (Van Uden). 
See Case C-185/07 (West Tankers). 
See  Case  C-190/89  (Marc  Rich).  Examples  of  such  ancillary  proceedings  are  proceedings  aimed  at 
appointing or removing an arbitrator, fixing the seat of arbitration, extending time limits, or appointing 
a court expert for the preservation of evidence. 

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3.8.2.  Other issues on jurisdiction 

With respect to the notion of "domicile", the report shows that no difficulties arise in practice 
when  the  courts  apply  their  national  concept  of  "domicile"  on  the  basis  of  Article  59(1) 
Regulation. However, the determination that a party is domiciled in another member State in 
accordance with foreign law (Article 59(2)) is perceived as difficult. 

The operation of certain jurisdiction rules could be improved. For instance, in Case C-462/06 
(Glaxosmithkline),  the  Court  of  Justice  confirmed  that  Article  6(1)  does  not  apply  in  the 
context of employment matters. In addition, the study shows that there may be a need for a 
non-exclusive  jurisdiction  ground  based  on  the  situs  of  moveable  assets.  With  respect  to 
exclusive jurisdiction concerning rights in rem, the study reports a need for choice of court in 
agreements concerning the rent of office space and a need for some flexibility concerning rent 
of holiday homes in order to avoid litigation in a forum which is remote for all parties. With 
respect to the exclusive jurisdiction in the area of company law, questions arise on the scope 
of the exclusive jurisdiction rule and the lack of uniform definition of the notion of "seat" of a 
company, leading to possible positive and negative conflicts of jurisdiction. 

The  non-uniform  application  of  Article  6(2)  and  11  on  third  party  proceedings  pursuant  to 
Article 65 also raises difficulties. In particular, third parties as well as parties claiming against 
the  third  party  are  treated  differently  depending  on  the  national  procedural  laws  of  the 
Member  States.  In  addition,  courts  have  difficulties  to  appreciate  the  effect  of  judgments 
issued by the courts of other Member States following a third party notice.  

In  maritime  matters,  difficulties  are  reported  in  the  coordination  of  proceedings  aimed  at 
setting up a liability fund and individual liability proceedings. Also, the reference to the law 
applicable  to  the  transportation  contract  in  order  to  determine  the  binding  force  of  a 
jurisdiction  agreement  in  a  bill  of  lading  for  the  third  party  holder  of  the  bill  of  lading27  is 
reported to be artificial. 

In  consumer  matters,  the  types  of  consumer  credit  agreements  covered  by  Articles  15(1)(a) 
and  (b)  of  the  Regulation  do  no  longer  correspond  to  the  evolving  consumer  credit  market 
where various other types of credit products have developed, as this is reflected in Directive 
2008/48/EC on credit agreements for consumers28.  

Finally,  in  the  light  of  the  ongoing  work  on  collective  redress  at  Community  level,  the 
question  arises  whether  specific  jurisdiction  rules  should  be  developed  for  these  specific 
actions. 

27 
28 

See Case C-387/98 (Coreck Maritime). 
Directive  2008/48/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2008  on  credit 
agreements for consumers and repealing Council Directive 87/102/EEC (OJ L 133, 22.5.2008, p. 66). 

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3.8.3.  Other issues on recognition and enforcement 

In  its  resolution  of  18  December  2008,  the  European  Parliament  has  called  on  the 
Commission  to  address  the  question  of  the  free  circulation  of  authentic  instruments.29  The 
general  study  also  reports  difficulties  in  the  free  circulation  of  penalties.  Finally,  the  study 
shows some ways to limit the costs of enforcement proceedings. 

29 

See  the  Resolution  of  the  European  Parliament  of  18  December  2008  with  recommendations  to  the 
Commission on the European Authentic Act, available at 
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-
0636+0+DOC+XML+V0//EN. 

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