Brussels I bis Regulation

New rules on jurisdiction

Analyse The Brussels I bis Regulation, which enters into force on 10 January 2015, will change some of the existing rules concerning the jurisdiction of the courts and will significantly simplify the procedures between parties, who reside in different EU Member States.

This new Regulation will serve as the legal basis to determine the jurisdiction of the court in cross-border litigations between parties in different European Member States and it sets out the conditions, based on which a judgement will be recognized and enforced in other Member States (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters).

The purpose of the new Regulation is to improve and facilitate the free circulation of judgments and to further enhance access to justice.

The purpose is to improve and facilitate the free circulation of judgments and to further enhance access to justice

The old Brussels I Regulation, which followed the EEX Regulation, was implemented in 2002 and 10 years later, the time came to evaluate its effect. 

With these changes, the European Parliament tries to meet some of the weaknesses of the old version. 

For instance, the exequatur procedure was deemed to be too expensive and time-consuming, and the exclusion of arbitration out of the scope of the Regulation was not adequate enough.

The most important changes concern the scope, the modification of the lis-pendens rule and the repeal of the exequatur procedure.

1. Changes in the scope of the Regulation

The scope of the Regulation has been slightly changed. It is still applicable in civil and commercial matters, and confirms the exclusion of fiscal, customs, or administrative matters. 

However, the exclusion for the liability of the State for acts and omissions in the exercise of State authority is new.

Concerning arbitration, the Regulation states that the courts should examine whether the arbitration agreement is valid or not, in accordance with their national law. Given that arbitration does not fall under the scope of the Regulation, the arbitral awards are still subjected to the New York Convention of 1958.

2. Exception on the lis-pendens rule

Under the old Regulation, the principle existed that when concurrent proceedings between the same parties and with the same cause of action, have been introduced in different Member States, the court which was seized last had to stay its proceedings until the court which was seized first had declared whether it has or does not have jurisdiction to hear the case (lis-pendens rule).

In reality, this rule has often been used with the sole purpose to delay the case. 

In order to limit the abuse, the new Regulation provides an exception to the lis-pendens rule. Where a court of a Member State on which a jurisdiction agreement confers exclusive jurisdiction, is seized, any court of another Member State shall stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement.

Although the lis-pendens rule as such is maintained in the new Regulation, the new exception means a significant improvement.

However, it should be noted that this exception does not apply in proceedings where a policyholder, consumer or employee is the claimant or in of case contradictory jurisdiction agreements between parties.

3. Changes concerning the choice of jurisdiction

Moreover, the new Regulation has implemented some changes concerning the jurisdiction clauses.

Article 25 Brussels I bis Regulation provides specifically that an agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.

The court will have to examine and determinate the validity of the agreement conferring jurisdiction separately from the contract in which it is included. 

In order to avoid discussions, it is advisable to agree on a clear jurisdiction clause in any contractual relationship.

4. Procedure concerning the recognition and execution of judgments

The procedure concerning the recognition and execution of judgments has been modified. 

In order to execute a judgment in another Member State, a declaration of execution is no longer required. The execution procedure as such is governed by the law of the Member State, where the execution is carried out.

In other words, the claimant, who does no longer have to initiate the exequatur procedure, can immediately instruct the bailiff to proceed with the execution. The claimant has to provide a certificate, in which the enforceable measures are confirmed, which is delivered by the court of origin.

It is still possible to refuse the enforcement, based on the pre-determined grounds of refusal, such as if its manifestly contrary to public policy in the Member State addressed or if it is irreconcilable with the judgment given between the same parties.

The debtor (or any interested party) will have to take the initiative in this regard. Before, the debtor had an additional appeal at his disposition in order to refuse the delivery of an exequatur. Given that the exequatur procedure has been repealed, this appeal has disappeared as well.

5. Provisional measures

The Brussels I bis Regulation has modified the regime on provisional measures. 

These measures are now governed by the rules on recognition and enforcement, with the nuance that provisional measures, which were ordered by the court without the defendant being summoned to appear should only be recognized and enforced if the judgment containing the measures is served on the defendant prior to enforcement.

Moreover, where provisional measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be limited to the territory of that Member State.

6. Conclusion

The new Regulation will simplify the recognition and enforcement of judgments in other Member Sates. This will not only reduce the costs but also the risk that the execution of judgments is delayed for no reason.

In other words, the Regulation aims to organize cross-border litigation more efficiently, which is of course beneficial for the proper functioning of the internal market.

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Alain De Jonge

Alain De Jonge

Leo Peeters

Leo Peeters