Recast Brussels I Regulation Enters into Force on 10 January 2015

From 10 January 2015, “Regulation (EU) No 1215/2014 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in commercial and civil matters” applies (“Brussels I Regulation (recast)”).[1] It replaces Regulation (EC) No 44/2001 (“Brussels I Regulation”) and results in a number of changes.

The recasting of the Brussels I Regulation is in particular to be welcomed with respect to cross-border enforcement in Europe. To date, enforcement based on a court judgement of another Member State was first possible after a costly and time-consuming recognition process in the executing State (“exequatur”). The decision had to be declared enforceable. This took place at the request of the interested party. The court at the debtor’s domicile or where the enforcement was to be carried out had jurisdiction for this. Exequatur is no longer required in future (Article 39). Instead, the party who wishes to invoke in a Member State a judgement given in another Member State now only has to present the enforcement authority with a copy of the original judgement and a certificate issued pursuant to Article 53, which confirms that the decision is enforceable. Judgements in this sense are not only decrees, but also orders, decisions and writs of execution, as well as certain provisional measures. A corresponding legal definition can be found in Article 2 (a) Brussels Regulation I (recast). However, it remains unclear whether a judgement has to be final or whether provisionally enforceable judgements are sufficient. The latter is certainly advocated by the intention of the Regulation to minimise the time and expense required for the enforcement of judgements within the European Union certainly.

Another important change to the Brussels I Regulation concerns the enforceability of jurisdiction agreements. In the past, jurisdiction agreements could de facto be circumvented by filing an action (“torpedo action”) for a declaratory judgement on the non-existence of a right before a foreign court without jurisdiction (and known for its slow processing of cases) before an action to enforce a right or claim was filed by the interested party at the agreed legal venue. The rules of the Brussels I Regulation provided for the jurisdiction of the court first seised, even if this did not actually have jurisdiction according to the jurisdiction agreement (Article 27(1) Brussels I Regulation). The court subsequently seized, which should in fact originally have had jurisdiction according to the agreement between the parties, had to stay the proceedings brought before it of its own motion until such time as the court first seised established that it did not have jurisdiction (ECJ, judgement of 09.12.2003 – C-116/02, EuZW 2004, 188, 191). In future, torpedo actions are no longer possible in cases in which the contractual parties have agreed exclusive jurisdiction. If a court on which such an agreement confers exclusive jurisdiction is seised by a party, any earlier seised court of another Member State has to stay its proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement (Article 31(2)). If the court establishes its jurisdiction in accordance with the agreement, the court of the other Member State has to decline jurisdiction in favour of that court (Article 31(3)).

The provisions of the Brussels I Regulation (recast) also in future allow a court of a Member State to stay proceedings if proceedings are already pending before the court of a third State that involve the same cause of action and the same parties (Article 33) or if both proceedings are related. Such a stay of proceedings, however, requires that the decision of the court of the third State is recognised in the relevant Member State and can if necessary be enforced. The court of the Member State must also be satisfied that “a stay of proceedings is necessary for the proper administration of justice”. It must in this respect assess all the circumstances of the case before it, such as connections between the facts of the case and the parties and the third State concerned or the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State.