Belgium: European Commission Proposes Recasting of the Brussels I Regulation

Last Updated: 20 January 2011


On 14 December 2010, the European Commission adopted a proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Proposal"). The Proposal provides for a recasting of Council Regulation (EC) No. 44/2001 of 22 December 2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels I Regulation").

With the Proposal, the European Commission intends to further develop the European area of justice by removing certain remaining obstacles to the free movement of judicial decisions in line with the principle of mutual recognition. In particular, the Proposal aims to facilitate cross-border litigation and the free circulation of judgments in the European Union (the "EU").

The Proposal provides for important modifications to the regime governing the jurisdiction in cross-border cases and to the procedure for recognition and enforcement of judgments between Member States.

Jurisdiction in cross-border cases

The Brussels I Regulation determines which court has jurisdiction in cross-border cases in civil and commercial matters. The rules of jurisdiction laid down in the Brussels I regulation are founded on the principle that jurisdiction is generally based on the defendant's domicile. The Brussels I Regulation provides that jurisdiction should always be available on this ground, except for a few well-defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different connecting factor. The changes to the jurisdiction regime established by the Brussels I Regulation, as provided for by the Proposal, include the following:

  • With some exceptions, the Brussels I Regulation currently only applies where the defendant is domiciled inside the EU. If the defendant is domiciled outside the EU, the jurisdiction in principle is governed by national law. The Proposal extends the Brussels I Regulation's jurisdiction rules to disputes involving third country defendants. This extension will ensure that the protective jurisdiction rules available for consumers, employees and insured will also apply if the defendant is domiciled outside the EU. Indeed, the proposed modification will result in the possibility for a consumer to go to a court in the EU Member State in which he or she is domiciled, regardless of whether or not there is a connection with a third country. The Proposal also introduces a discretionary lis pendens rule for disputes on the same subject matter and between the same parties which are pending before the courts in the EU and in a third country.
  • The Proposal will also increase the effectiveness of choice of court agreements and eliminate the incentives for abusive litigation in courts without jurisdiction. Currently, the Brussels I Regulation obliges the court designated by the parties in a choice of court agreement to stay proceedings if another court has been seized first. This often results in litigants acting in bad faith by delaying the resolution of the dispute in the chosen forum by first seizing a court without jurisdiction. The Proposal provides that where the parties have designated a particular court or courts to resolve their dispute, priority is given to the chosen court to decide on its jurisdiction, regardless of whether it has been seized in first or second place. Importantly, the Proposal also introduces a harmonised conflict of law rule on the substantive validity of choice of court agreements, thus ensuring a similar outcome on this matter regardless of which court has been seized. The proposed amendments relating to choice of court agreements would thus result in an important enhancement of legal certainty in this respect.
  • Arbitration is currently excluded from the scope of the Brussels I Regulation. The Proposal provides for a specific rule on the relation between arbitration and court proceedings. It obliges a court seized regarding a dispute to stay proceedings if (i) its jurisdiction is contested on the basis of an arbitration agreement; and if (ii) an arbitral tribunal has been seized with regard to the case, or court proceedings relating to the arbitration agreement have been commenced in the EU Member State of the seat of the arbitration. This will eliminate the incentive for abusive litigation tactics by protecting the choice of the arbitral tribunal and enhance the effectiveness of arbitration agreements in the EU.

Recognition and enforcement of judgements between EU Member States

The Brussels I Regulation also provides for a procedure for recognition and enforcement of judgments in civil and commercial matters between EU Member States. Under the current rules, a judgment given in one EU Member State has to be validated and declared enforceable by a court in another EU Member State in order to be enforced in that other EU Member State. This intermediate judicial procedure for the recognition and enforcement of judgments is referred to as the "exequatur" procedure.

The Proposal abolishes the exequatur procedure for all judgments covered by the Brussels I Regulation's scope with the exception of (i) judgments in defamation cases in which an individual claims that rights relating to his personality or privacy have been violated by the media; and (ii) judgments in compensatory collective redress cases.

If the Proposal is adopted, a judgment in civil and commercial matters rendered by a court of an EU Member State automatically will take effect in another EU Member State, where it will be treated like a domestic judgment. With a view to ensuring that the defendant's right to a fair trial and his rights of defence are adequately protected, the abolition of the exequatur procedure will be accompanied by the introduction of certain procedural safeguards. In exceptional circumstances, these procedural safeguards would enable defendants to prevent a judgment given in one EU Member State from taking effect in another EU Member State.

The Proposal will be adopted under the ordinary legislative procedure (co-decision of the European Parliament and the Council). The Commission expects the Proposal to be approved within the next two to three years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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