Critical analysis of the objectives of the Brussels I (Recast) Regulation

As it was stated in the press release[1] following the adoption of the Brussels I Regulation (recast)[2] in 2012, the goal of the recast regulation is to facilitate the movement of judgements in civil and commercial matters. Here, I would like to discuss how the recast regulation differs from its predecessor, Council Regulation 44/2001[3] with particular attention paid to the key changes that have been made to the regulation and assessing if the objectives set out by those changes have been reached.

Council Regulation 44/2001, known also as ‘Brussels I Regulation’, set out an objective in its preamble[4] as facilitating the free movement of judgements to assure the development of the Community by providing legal support for the functioning of the Community. Since its inception, the 2001 Regulation has provided the foundation of the European judicial cooperation and established that it is necessary for a legal instrument of the Community to govern the international recognition and enforcement of judgements.[5] The Regulation has served well in providing clarity on issues that concern judicial matters across Member States, for example which Member State shall have jurisdiction to settle a dispute and how that judgement shall be recognised and enforced in other Member States. The Regulation has also served to provide citizens and businesses legal certainty from the rules that have been laid down by the EU legal instruments and settled European case law, eliminating the need for parallel proceedings to occur.[6]

 

Although the Brussels I Regulation has been regarded as a success in the area of EU international law, the shortcomings of the 2001 legislation have been noticed on numerous occasions[7], thereby upon its review, as required by article 73[8] of the 2001 Regulation, it has been noted that changes were vital to the 2001 Regulation. As reported by the EU Parliament, amendments were required to modernise the Regulation, and specifically the changes would need to address the issues of amending the rules in relation to jurisdictional agreements, lis pendens proceedings, enhancing the arbitration exclusion, providing new rules in relation to third state matters and defendants and the removal of exequatur.

 

One of the main concerns observed in the Brussels I Regulation was presented in regards to the jurisdictional agreements, or choice-of-court agreements, which stem from the provision in the 2001 Regulation.[9] The 2001 Regulation, which has expanded the Brussels regime,[10] has incorporated within the legislation provisions regarding the lis pendens doctrine,[11] which involves specific rules on which court shall have jurisdiction in cases “involving the same cause of action and between the same parties”.[12] This rule provides that if two courts are seized in different jurisdictions, the first court to establish jurisdiction shall advance with the proceedings. This doctrine was included with the intention of eliminating parallel proceedings and thereby establishing legal certainty and consistency in judgements. The rule was first applied under the 1968 Brussels Convention[13] in the Erich Gasser[14] case.

[1]Press release, “Recast of the Brussels I regulation: towards easier and faster circulation of judgments in civil and commercial matters within the EU”, Brussels, 6 December 2012, 16599/12, PRESSE 483

[2]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 (recast)

[3]Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, http://www.abogadosaccidenteskp.com

[4]Ibid. Recital (1) “The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. In order to establish progressively such an area, the Community should adopt, amongst other things, the measures relating to judicial cooperation in civil matters, which are necessary for the sound operation of the internal market.”

[5]Ibid. Recital (6) “In order to attain the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a Community legal instrument which is binding and directly applicable.”

[6] Report [29 June 2010] on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

(2009/2140(INI)) < http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2010-0219+0+DOC+XML+V0//EN#_part1_def6> Accessed: 1 March 2017

[7]Following the European Court of Justice decisions in numerous cases [for example, – Case C-394/07 Gambazzi v. DaimlerChrysler Canada [2009] ECR I-2563, Case C-185/07 Gasser GmbH v. MISAT Srl [2003] ECR I-14693, Case C-281/02 Owusu v. Jackson [2005] ECR I-1383] it was apparent that the need to make amendments to the 2001 Regulation were required to modernise and make easier the circulation of judgements within the European Union.

[8]Council Regulation (EC) No 44/2001 Article 73 provides that a report must be presented on the application of the Regulation.

[9]Council regulation 44/2001 Article 23

[10]The Brussels regime was initially established by the1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [OJ L 299, 31.12.1972] regulating the legislative framework of litigation within the European Community.

[11]Council regulation 44/2001 Article 27

[12]Council regulation 44/2001 Article 27 (1)

[13]1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ L 299, 31.12.1972

[14]Case C-116/02 Erich Gasser GmbH v. MISAT Srl, European Court of Justice [2003]