Green Paper on the review of Council Regulation (EC) no 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
Date: 2009-04-21
Institutions: European Commission
Subjects: EU Member State, civil law, commercial law, disclosure of information, harmonisation of standards, national implementing measure, report

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.4.2009 
COM(2009) 175 final 

GREEN PAPER  

ON THE REVIEW OF COUNCIL REGULATION (EC) No 44/2001 ON 
JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF 
JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS 

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GREEN PAPER  

ON THE REVIEW OF COUNCIL REGULATION (EC) No 44/2001 ON 
JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF 
JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS 

This Green Paper accompanies the Report from the Commission on the application of Council 
Regulation  (EC)  No  44/2001  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  civil  and  commercial  matters  ("the  Regulation")1.  Its  purpose  is  to  launch  a 
broad consultation among interested parties on possible ways to improve the operation of the 
Regulation with respect to the points raised in the Report.  

The  Commission  calls  on  all  interested  persons  to  send  their  comments  on  the  points 
addressed  below  and  any  other  useful  contributions,  no  later  than  30  June  2009,  to  the 
following address: 

European Commission 
Directorate-General Justice, Freedom and Security 
Unit E2 – Civil Justice 
B – 1049 Brussels Fax: + 32 (0) 2 299 64 57 
E-mail: jls-coop-jud-civil@ec.europa.eu 

Contributions  will  be  published  on  the  Internet.  It  is  important  to  read  the  specific  privacy 
statement  attached  to  this  consultation  for  information  on  how  your  personal  data  and 
contribution  will  be  dealt  with.  Professional  organisations  are  invited  to  register  in  the 
Commission's Register for Interest Representatives2. 

1. The abolition of all intermediate measures to recognise and enforce foreign judgments 
("exequatur") 

The existing exequatur procedure in the Regulation simplified the procedure for recognition 
and  enforcement  of  judgments  compared  to  the  previous  system  under  the  1968  Brussels 
Convention. Nevertheless, it is difficult to justify, in an internal market without frontiers, that 
citizens and businesses have to undergo the expenses in terms of costs and time to assert their 
rights  abroad.  If  applications  for  declarations  of  enforceability are  almost  always  successful 
and recognition and enforcement of foreign judgments is very rarely refused, aiming for the 
objective of abolishing the exequatur procedure in all civil and commercial matters should be 
realistic.  In  practice,  this  would  apply  principally  to  contested  claims.  The  abolition  of 
exequatur should, however, be accompanied by the necessary safeguards.  

In the area of uncontested claims, intermediate measures have been abolished on the basis of a 
control,  in  the  Member  State  of  origin,  of  minimum  standards  relating  to  the  service  of  the 
document instituting proceedings and to the provision of information about the claim and the 
procedure to the defendant. In addition, an exceptional review should remedy situations where 
the  defendant  was  not  served  personally  in  a  way  to  enable  him/her  to  arrange  for  his/her 

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OJ L 12, 16.1.2001, p. 1.  
(http://ec.europa.eu/transparency/regrin).  This  Register  was  set  up  in  the  framework  of  the  European 
Transparency Initiative with a view to provide the Commission and the public at large with information 
about the objectives, funding and structures of interest representatives. 

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defence  or  where  he/she  could  not  object  to  the  claim  by  reason  of  force  majeure  or 
extraordinary circumstances ("special review"). Under this system, the claimant must still go 
through a certification procedure, be it that this procedure takes place in the Member State of 
origin rather than in the Member State of enforcement. 

In  the  area  of  contested  and  uncontested  claims,  on  the  other  hand,  Regulation  4/2009  on 
maintenance obligations3 abolishes exequatur on the basis of harmonised rules on applicable 
law  and  the  protection  of  the  rights  of  the  defence  is  ensured  through  the  special  review 
procedure which applies once the judgment has been issued. Regulation 4/2009 thus takes the 
view that, in the light of the low number of "problematic" judgments presented for recognition 
and  enforcement,  a  free  circulation  is  possible  as  long  as  the  defendant  has  an  effective 
redress  a  posteriori  (special  review).  If  a  similar  approach  were  followed  in  civil  and 
commercial matters generally, the lack of harmonisation of such a special review procedure 
might introduce a certain degree of uncertainty in the few situations where the defendant was 
not able to defend him/herself in the foreign court. It should therefore be reflected whether a 
more harmonised review procedure might not be desirable.  

Question 1: 

Do  you  consider  that  in  the  internal  market  all  judgments  in  civil  and  commercial  matters 
should circulate freely, without any intermediate proceedings (abolition of exequatur)? 

If so, do you consider that some safeguards should be maintained in order to allow for such 
an abolition of exequatur? And if so, which ones? 

2. The operation of the Regulation in the international legal order  

The good functioning of an internal market and the Community's commercial policy both on 
the internal and on the international level require that equal access to justice on the basis of 
clear and precise rules on international jurisdiction is ensured not only for defendants but also 
for  claimants  domiciled  in  the  Community.  The  jurisdictional  needs  of  persons  in  the 
Community  in  their  relations  with  third  States'  parties  are  similar.  The  reply  to  these  needs 
should  not  vary  from  one  Member  State  to  another,  taking  into  account,  in  particular,  that 
subsidiary jurisdiction rules do not exist in all the Member States. A common approach would 
strengthen the legal protection of Community citizens and economic operators and guarantee 
the application of mandatory Community legislation.  

In order to extend the personal scope of the jurisdiction rules to defendants domiciled in third 
States, it should be considered to what extent the special jurisdiction rules of the Regulation, 
with the current connecting factors, could be applied to third State defendants.  

In  addition,  it  should  be  reflected  to  what  extent  it  is  necessary  and  appropriate  to  create 
additional  jurisdiction  grounds  for  disputes  involving  third  State  defendants  ("subsidiary 
jurisdiction").  The  existing  rules  at  national  level  pursue  an  important  objective  of  ensuring 
access  to  justice;  it  should  be  reflected  which  uniform  rules  might  be  appropriate.  In  this 
respect,  a  balance  should  be  found  between  ensuring  access  to  justice  on  the  one  hand  and 
international courtesy on the other hand. Three grounds might be considered in this respect: 
jurisdiction  based  on  the  carrying  out  of  activities,  provided  that  the  dispute  relates  to  such 

3 

OJ L 7, 10.1.2009, p. 1. 

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activities;  the  location  of  assets,  provided  that  the  claim  relates  to  such  assets;  and  a  forum 
necessitatis, which would allow proceedings to be brought when there would otherwise be no 
access to justice4.  

Further, if uniform rules for claims against third State defendants are established, the risk of 
parallel  proceedings  before  Member  State  and  third  State  courts  will  increase.  It  must 
therefore be considered in which situations access to the courts of the Member States must be 
ensured  irrespective  of  proceedings  ongoing  elsewhere  and  in  which  situations  and  under 
which conditions it may be appropriate to allow the courts to decline jurisdiction in favour of 
the courts of third States. This could be the case, for instance, when parties have concluded an 
exclusive choice of court agreement in favour of the courts of third States, when the dispute 
otherwise  falls  under  the  exclusive  jurisdiction  of  third  State  courts,  or  when  parallel 
proceedings have already been brought in a third State5. 

Finally,  it  should  be  considered  to  what  extent  an  extension  of  the  scope  of  the  jurisdiction 
rules  should  be  accompanied  by  common  rules  on  the  effect  of  third  State  judgments.  A 
harmonisation  of  the  effect  of  third  State  judgments  would  enhance  legal  certainty,  in 
particular  for  Community  defendants  who  are  involved  in  proceedings  before  the  courts  of 
third  States.  A  common  regime  of  recognition  and  enforcement  of  third  State  judgments 
would  permit  them  to  foresee  under  which  circumstances  a  third  State  judgment  could  be 
enforced  in  any  Member  State  of  the  Community,  in  particular  when  the  judgment  is  in 
breach of mandatory Community law or Community law provides for exclusive jurisdiction 
of Member States' courts6.  

Question 2:  

Do  you  think  that  the  special  jurisdiction  rules  of  the  Regulation  could  be  applied  to  third 
State  defendants?  What  additional  grounds  of  jurisdiction  against  such  defendants  do  you 
consider necessary?  

How should the Regulation take into account exclusive jurisdiction of third States' courts and 
proceedings brought before the courts of third States?  

Under  which  conditions  should  third  State  judgments  be  recognised  and  enforced  in  the 
Community,  particularly  in  situations  where  mandatory  Community  law  is  involved  or 
exclusive jurisdiction lays with the courts of the Member States? 

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See the forum necessitatis rule in Article 7 of Regulation (EC) No 4/2009. The forum necessitatis rule 
ensures that, where no court of a Member State has jurisdiction pursuant to the Regulation, the courts of 
the Member States may, on exceptional basis, hear the case if proceedings cannot reasonably be brought 
or conducted or would be impossible in a third State with which the dispute is closely connected. 
On these questions, it may be referred to the study on subsidiary jurisdiction mentioned in the Report, 
as well as to the work accomplished by the European Group for Private International law (GEDIP), in 
particular 
http://www.gedip-
session 
egpil.eu/gedip_documents.html). 
This  concern  has  been  voiced,  for  instance,  in  the  context  of  consumer  collective  redress,  whereby 
Community companies are involved in collective action in third States (e.g. United States). 

in  September 

in  Bergen 

2008 

their 

(see 

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3. Choice of court 

Agreements  on  jurisdiction  by  the  parties  should  be  given  the  fullest  effect,  not  the  least 
because  of  their  practical  relevance  in  international  commerce.  It  should  therefore  be 
considered  to  what  extent  and  in  which  way  the  effect  of  such  agreements  under  the 
Regulation may be strengthened, in particular in the event of parallel proceedings. 

One  solution  might  be  to  release  the  court  designated  in  an  exclusive  choice-of-court 
agreement from its obligation to stay proceedings under the lis pendens rule7. A drawback of 
this solution is that parallel proceedings leading to irreconcilable judgments are possible.  

Another  solution  might  be  to  reverse  the  priority  rule  insofar  as  exclusive  choice  of  court 
agreements are concerned. In this option, the court designated by the agreement would have 
priority to determine its jurisdiction and any other court seized would stay proceedings until 
the jurisdiction of the chosen court is established. This solution already applies in the context 
of the Regulation with respect to parties none of whom is domiciled in a Member State. Such 
a solution would align to a large extent the internal  Community rules  with  the international 
rules. A drawback of this solution may be that if the agreement is invalid, a party must seek 
first to establish the invalidity before the court designated in the agreement before being able 
to seize the otherwise competent courts.  

Alternatively,  the  existing  lis  pendens  rule  may  be  maintained,  but  a  direct  communication 
and  cooperation  between  the  two  courts  could  be  envisaged,  combined,  for  instance,  with  a 
deadline for the court first seized to decide on the question of jurisdiction and an obligation to 
regularly report to the court second seized on the progress of the proceedings. In this option, it 
should  be  ensured  that  the  claimant  does  not  lose  a  legitimate  forum  for  reasons  outside 
his/her control.  

The  efficiency  of  jurisdiction  agreements  could  also  be  strengthened  by  the  granting  of 
damages for breach of such agreements, arising for instance from the delay or the exercise of 
default clauses in loan agreements.  

Another solution might also be to exclude the application of the lis pendens rule in situations 
where the parallel proceedings are proceedings on the merits on the one hand and proceedings 
for  (negative)  declaratory  relief  on  the  other  hand  or  at  least  to  ensure  a  suspension  of  the 
running of limitation periods with respect to the claim on the merits  in case  the declaratory 
relief fails. 

Finally,  the  uncertainty  surrounding  the  validity  of  the  agreement  could  be  addressed,  for 
instance,  by  prescribing  a  standard  choice  of  court  clause,  which  could  at  the  same  time 
expedite  the  decision  on  the  jurisdiction  question  by  the  courts8.  This  option  could  be 
combined with some of the solutions suggested above: the acceptance of parallel proceedings 

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Lis pendens rule requires that, where proceedings involving the same cause of action and between the 
same parties are brought in the courts of different Member States, any court other than the Court first 
seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first 
seized is established. 
Concerning  the  validity  of  the  agreement,  it  is  sometimes  suggested  that  a  harmonised  conflict  rule 
might be appropriate in order to ensure a uniform application of the rules of the Regulation. It should be 
noted that the law applicable to choice of court agreements is excluded from the scope of Regulation 
(EC) No 593/2008 on the law applicable to contractual obligations (Rome I). 

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or  the  reversal  of  the  priority  rule  could  be  limited  to  those  situations  where  the  choice-of-
court agreement takes the standard form prescribed by the Regulation.  

Question 3: 

Which of the above suggested solutions, or any other possible solutions, do you consider most 
appropriate  in  order  to  enhance  the  effectiveness  of  choice  of  court  agreements  in  the 
Community?  

4. Industrial property 

The possibility to effectively enforce or challenge industrial property rights in the Community 
is of fundamental importance for the good functioning of the internal market. Substantive law 
on  intellectual  property  is  already  largely  part  of  the  acquis  communautaire9.  Directive 
2004/48/EC on the enforcement of intellectual property rights10 aims at approximating certain 
procedural questions relating to enforcement. . In order to address the lack of legal certainty 
and  the  high  costs  caused  by  duplication  of  proceedings  before  national  courts,  the 
Commission  has  proposed  the  creation  of  an  integrated  jurisdictional  system  through  the 
establishment  of  a  unified  European  patent  litigation  system  which  would  be  entitled  to 
deliver  judgments  on  the  validity  and  the  infringement  of  European  and  future  Community 
patents  for  the  entire  territory  of  the  internal  market11.  In  addition,  on  20  March  2009,  the 
Commission adopted a Recommendation to the Council concerning the negotiating directives 
for the conclusion of an international agreement involving the Community, its Member States 
and other Contracting States of the European Patent Convention12. Pending the creation of the 
unified patent litigation system, certain shortcomings of the current system may be identified 
and addressed in the context of Regulation (EC) No 44/2001.  

With respect to the coordination of parallel infringement proceedings, it could be envisaged to 
strengthen  the  communication  and  interaction  between  the  courts  seized  in  parallel 
proceedings and/or to exclude the application of the rule in the case of negative declaratory 
relief (cf. supra, point 3). 

With respect to the coordination of infringement and invalidity proceedings, several solutions 
to counter "torpedo" practices have been proposed in the general study. It is hereby referred to 
the study for those solutions. However, the problems may be dealt with by the creation of the 
unified patent litigation system, in which case modifications of the Regulation would not be 
necessary.  

If  it  is  considered  opportune  to  provide  for  a  consolidation  of  proceedings  against  several 
infringers of the European patent where the infringers belong to a group of companies acting 
in  accordance  with  a  coordinated  policy,  a  solution  might  be  to  establish  a  specific  rule 
allowing  infringement  proceedings  concerning  certain  industrial  property  rights  against 
several defendants to be brought before the courts of the Member State where the defendant 
coordinating the activities or otherwise having the closest connection with the infringement is 

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Intellectual property rights also include copyright which is not addressed in this paper. As a right which 
is  not  subject  to  registration,  copyright  is  not  covered  by  the  exclusive  jurisdiction  rules  of  the 
Regulation. 
Directive  2004/48/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on  the 
enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45). 
COM(2007) 165. 
SEC(2009) 330. 

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domiciled.  A  drawback  of  such  a  rule  might  be,  as  the  Court  of  Justice  suggested,  that  the 
strong  factual  basis  of  the  rule  may  lead  to  a  multiplication  of  the  potential  heads  of 
jurisdiction, thereby undermining the predictability of the jurisdiction rules of the Regulation 
and  the  principle  of  legal  certainty.  In  addition,  such  a  rule  may  lead  to  forum  shopping. 
Alternatively,  a  re-formulation  of  the  rule  on  plurality  of  defendants  might  be  envisaged  in 
order  to  enhance  the  role  of  the  courts  of  the  Member  State  where  the  primary  responsible 
defendant is domiciled. 

Question 4: 

What are the shortcomings in the current system of patent litigation you would consider to be 
the  most  important  to  be  addressed  in  the  context  of  Regulation  44/2001  and  which  of  the 
above  solutions  do  you  consider  appropriate  in  order  to  enhance  the  enforcement  of 
industrial  property  rights  for  rightholders  in  enforcing  and  defending  rights  as  well  as  the 
position of claimants who seek to challenge those rights in the context of the Regulation? 

5. Lis pendens and related actions 

With respect to the general operation of the lis pendens rule, it should be reflected whether the 
current problems might not be addressed by strengthening the communication and interaction 
between the courts seized in parallel proceedings and/or the exclusion of the application of the 
rule in the case of negative declaratory relief (cfr. supra, point 3). 

Concerning  the  rule  on  related  actions,  it  should  be  reflected  to  what  extent  it  may  be 
appropriate  to  permit  a  grouping  of  actions  by  and/or  against  several  partieson  the  basis  of 
uniform  rules.  The  risk  of  negative  conflicts  of  jurisdiction  could  be  addressed  by  a 
cooperation and communication mechanism between the courts involved and by an obligation 
on the part of the court which declined jurisdiction to re-open the case if the court first seized 
declines jurisdiction. In Article 30(2), it should be clarified that the authority responsible for 
service  is  the  first  authority  receiving  the  documents  to  be  served.  Also,  in  the  light  of  the 
importance  of  the  date  and  time  of  receipt,  the  authorities  responsible  for  service  and  the 
courts, as appropriate, should note when exactly they receive the documents for purposes of 
service or when exactly the document instituting proceedings is lodged with the court. 

One other possibility  could be to provide for a limited extension of the  rule in Article 6(1), 
allowing for a consolidation if the court has jurisdiction over a certain quorum of defendants. 

Question 5: 

How do you think that the coordination of parallel proceedings (lis pendens) before the courts 
of different Member States may be improved?  

Do you think that a consolidation of proceedings by and/or against several parties should be 
provided for at Community level on the basis of uniform rules? 

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6. Provisional measures 

The  report  describes  several  difficulties  with  respect  to  the  free  circulation  of  provisional 
measures.  

With respect to ex parte measures13, it might be appropriate to clarify that such measures can 
be recognised and enforced on the basis of the Regulation if the defendant has the opportunity 
to  contest  the  measure  subsequently,  particularly  in  the  light  of  Article  9(4)  of  Directive 
2004/48/EC. 

Further, the allocation of jurisdiction for provisional measures ordered by a court which does 
not have jurisdiction on the substance of the matter may be approached differently than it is 
today under the existing case law of the Court of  Justice. In particular, if the Member State 
whose courts have jurisdiction as to the substance of the matter were empowered to discharge, 
modify  or  adapt  a  provisional  measure  granted  by  the  courts  of  a  Member  State  having 
jurisdiction  on  the  basis  of  Article  31,  the  "real  connecting  link"  requirement  could  be 
abandoned. The role of the court seized of the request would be to assist the proceedings on 
the merits by "lending remedies", particularly when effective protection is not available in all 
the Member States, without interfering with the jurisdiction of the court having jurisdiction on 
the substance. When such assistance is no longer needed, the court having jurisdiction on the 
substance  may  set  aside  the  foreign  measure.  Again,  a  communication  between  the  courts 
involved may be helpful. This would allow applicants to seek efficient provisional protection 
where this is available in Europe.  

With  respect  to  the  required  guarantee  of  repayment  of  an  interim  payment,  it  might  be 
desirable to specify that the guarantee should not necessarily consist of a provisional payment 
or bank guarantee. Alternatively, it might be considered that this difficulty will be adequately 
resolved through case law in the future. 

Finally,  if  exequatur  is  abolished,  Article  47  of  the  Regulation  should  be  adapted.  In  this 
respect, inspiration may be drawn from Article 18 of Regulation (EC) No 4/2009. 

Question 6: 

Do you think that the free circulation of provisional measures may be improved in the ways 
suggested in the Report and in this Green Paper? Do you see other possibilities to improve 
such a circulation?  

7. The interface between the Regulation and arbitration 

Arbitration is a matter of great importance to international commerce. Arbitration agreements 
should  be  given  the  fullest  possible  effect  and  the  recognition  and  enforcement  of  arbitral 
awards  should  be  encouraged.  The  1958  New  York  Convention  is  generally  perceived  to 
operate  satisfactorily  and  is  appreciated  among  practitioners.  It  would  therefore  seem 
appropriate to leave the operation of the Convention untouched or at least as a basic starting 
point for further action. This should not prevent, however, addressing certain specific points 
relating to arbitration in the Regulation, not for the sake of regulating arbitration, but in the 
first  place  to  ensure  the  smooth  circulation  of  judgments  in  Europe  and  prevent  parallel 
proceedings.  

13 

Ex parte measures mean, in the context of provisional measures, temporary orders issued by the court 
based on one party's request without hearing from the other side. 

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In  particular,  a  (partial)  deletion  of  the  exclusion  of  arbitration  from  the  scope  of  the 
Regulation  might  improve  the  interface  of  the  latter  with  court  proceedings.  As  a  result  of 
such a deletion, court proceedings in support of arbitration might come within the scope of the 
Regulation.  A  special  rule  allocating  jurisdiction  in  such  proceedings  would  enhance  legal 
certainty.  For  instance,  it  has  been  proposed  to  grant  exclusive  jurisdiction  for  such 
proceedings to the courts of the Member State of the place of arbitration, possibly subject to 
an agreement between the parties14.  

Also,  the  deletion  of  the  arbitration  exception  might  ensure  that  all  the  Regulation's 
jurisdiction rules apply for the issuance of provisional measures in support of arbitration (not 
only  Article  31).  Provisional  measures  ordered  by  the  courts  are  important  to  ensure  the 
effectiveness of arbitration, particularly until the arbitral tribunal is set up.  

Next,  a  deletion  of  the  exception  might  allow  the  recognition  of  judgments  deciding  on  the 
validity of an arbitration agreement and clarify the recognition and enforcement of judgments 
merging an arbitration award. It might also ensure the recognition of a judgment setting aside 
an  arbitral  award15.  This  may  prevent  parallel  proceedings  between  courts  and  arbitral 
tribunals where the agreement is held invalid in one Member State and valid in another.  

More  generally,  the  coordination  between  proceedings  concerning  the  validity  of  an 
arbitration agreement before a court and an arbitral tribunal might be addressed. One could, 
for instance, give priority to the courts of the Member State where the arbitration takes place 
to decide on the existence, validity, and scope of an arbitration agreement. This might again 
be combined with a strengthened cooperation between the courts seized, including time limits 
for the party which contests the validity of the agreement. A uniform conflict rule concerning 
the validity of arbitration agreements, connecting, for instance, to the law of the State of the 
place  of  arbitration,  might  reduce  the  risk  that  the  agreement  is  considered  valid  in  one 
Member  State  and  invalid  in  another.  This  may  enhance,  at  Community  level,  the 
effectiveness of arbitration agreements compared to Article II(3) New York Convention.  

Further,  as  far  as  recognition  and  enforcement  is  concerned,  arbitral  awards  which  are 
enforceable under the New York Convention might benefit from a rule which would allow the 
refusal  of  enforcement  of  a  judgment  which  is  irreconcilable  with  that  arbitral  award.  An 
alternative or additional way forward might be to grant the Member State where an arbitral 
award was given exclusive competence to certify the enforceability of the award as well as its 
procedural  fairness,  after  which  the  award  would  freely  circulate  in  the  Community.  Still 
another solution suggested consists of taking advantage of Article VII New York Convention 
to further facilitate at EU level the recognition of arbitral awards (a question which might also 
be addressed in a separate Community instrument). 

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15 

If  this  approach  is followed, uniform  criteria  should permit  to  determine  the place of  arbitration.  The 
general study suggests to refer to the agreement of the parties or the decision of the arbitral tribunal. If 
the place cannot be defined on that basis, it is suggested to connect to the courts of the Member State 
which  would  have  jurisdiction  over  the  dispute  under  the  Regulation  in  the  absence  of  an  arbitration 
agreement. 
This is particularly important, for instance, if the award is set aside for violation of mandatory rules of 
Community law (e.g. competition law). 

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Question 7: 

Which action do you consider appropriate at Community level: 

•  To strengthen the effectiveness of arbitration agreements; 

•  To ensure a good coordination between judicial and arbitration proceedings; 

•  To enhance the effectiveness of arbitration awards? 

8. Other issues 

8.1. Scope 

As far as scope is concerned, maintenance matters should be added to the list of exclusions, 
following  the  adoption  of  Regulation  (EC)  No  4/2009  on  maintenance.  With  respect  to  the 
operation of Article 71 on the relation between the Regulation and conventions on particular 
matters, it has been proposed to reduce its scope as far as possible. 

8.2. Jurisdiction 

In the light of the importance of domicile as the main connecting factor to define jurisdiction, 
it should be considered whether an autonomous concept could be developed. 

Further, it should be considered to what extent it may be appropriate to create a non-exclusive 
jurisdiction based on the situs of moveable assets as far as rights in rem or possession with 
respect  to  such  assets  are  concerned.  With  respect  to  employment  contracts,  it  should  be 
reflected  to  what  extent  it  might  be  appropriate  to  allow  for  a  consolidation  of  actions 
pursuant to Article 6(1). As to exclusive jurisdiction, it should be reflected whether choice of 
court in agreements concerning the rent of office space should be allowed; concerning rent of 
holiday  homes,  some  flexibility might be appropriate  in order to avoid litigation  in a  forum 
which is remote for all parties. It should also be considered whether it might be appropriate to 
extend the scope of exclusive jurisdiction in company law (Article 22(2)) to additional matters 
related  to  the  internal  organisation  and  decision-making  in  a  company.  Also,  it  should  be 
considered whether a uniform definition of the "seat" could not be envisaged.With respect to 
the operation of Article 65, it should be reflected to what extent a uniform rule on third party 
proceedings  might  be  envisaged,  possibly  limited  to  claims  against  foreign  third  parties. 
Alternatively, the divergence in national procedural law might be maintained, but Article 65 
could  be  redrafted  so  as  to  allow  national  law  to  evolve  towards  a  uniform  solution.  In 
addition, an obligation on the part of the court hearing the claim against a third party in third 
party notice proceedings to verify the admissibility of the notice might reduce the uncertainty 
as to the effect of the court's decision abroad. 

In  maritime  matters,  it  should  be  reflected  to  what  extent  a  consolidation  of  proceedings 
aimed  at  setting  up  a  liability  fund  and  individual  liability  proceedings  on  the  basis  of  the 
Regulation might be appropriate. With respect to the binding force of a jurisdiction agreement 
in a bill of lading for the third party holder of the bill of lading, stakeholders have suggested 
that  a  carrier  under  a  bill  of  lading  should  be  bound  by  and  at  the  same  token  allowed  to 
invoke  a  jurisdiction  clause  against  the  regular  third-party  holder,  unless  the  bill  is  not 
sufficiently clear in determining jurisdiction. 

EN 

10 

   EN 

 
With  respect  to  consumer  credit,  it  should  be  reflected  whether  it  might  be  appropriate  to 
align the wording of Articles 15(1)(a) and (b) of the Regulation to the definition of consumer 
credit of Directive 2008/48/EC16. 

With  respect  to  the  ongoing  work  in  the  Commission  on  collective  redress17,  it  should  be 
reflected whether specific jurisdiction rules are necessary for collective actions. 

8.3. Recognition and enforcement  

As  far  as  recognition  and  enforcement  is  concerned,  it  should  be  reflected  to  what  extent  it 
might be appropriate to address the question of the free circulation of authentic instruments. 18 
In family matters (Regulations (EC) No 2201/2003 and (EC) No 4/2009), the settlement of a 
dispute  in  an  authentic  instrument  is  automatically  recognised  in  the  other  Member  States. 
The question arises to what extent a "recognition" might be appropriate in all or some civil or 
commercial matters, taking into account the specific legal effects of authentic instruments.  

Further,  the  free  circulation  of  judgments  ordering  payments  by  way  of  penalties  might  be 
improved by ensuring that the amount fixing the penalty is set, either by the court of origin or 
by  an  authority  in  the  Member  State  of  enforcement.  It  should  also  be  considered  to  what 
extent the Regulation should not only permit the recovery of penalties by the creditor, but also 
those which are collected by the court or fiscal authorities.  

Finally,  access  to  justice  in  the  enforcement  stage  could  be  improved  by  establishing  a 
uniform  standard  form,  available  in  all  official  Community  languages,  which  contains  an 
extract  of  the  judgment19.  Such  a  form  would  obviate  the  need  for  translation  of  the  entire 
judgment  and  ensure  that  all  relevant  information  (e.g.  on  interest)  is  available  to  the 
enforcement  authorities.  Costs  in  the  enforcement  may  be  reduced  by  removing  the 
requirement  to  designate  an  address  for  service  of  process  or  to  appoint  a  representative  ad 
litem20. In light of the current harmonisation at Community law, in particular Regulation (EC) 
No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in 
civil and commercial matters21, such a requirement does indeed seem obsolete today. 

Question 8: 

Do you believe that the operation of the Regulation could be improved in the ways suggested 
above? 

16 

17 

18 

19 
20 

21 

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). 
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. 
The  European  Parliament  has  in  its  Resolution  of  18  December  2008  referred  also  to  a  European 
Authentic Act. 
See, for instance, Regulation (EC) No 4/2009. 
A  representative  ad  litem  means  a  person  appointed  to  act  for  a  party  during  the  course  of  legal 
proceedings. 
OJ L 324, 10.12.2007, p. 79. 

EN 

11 

   EN