New Brussels I regulation and its implications
The revised Brussels regulation aims at making it even easier than before to recognise and enforce judgments within the European Union. The revised regulation also provides a broader recognition of jurisdiction agreements.
The new revised Brussels I regulation (1215/2012) entered into force 10 January 2015. The new regulation replaced the old Brussels I regulation (44/2001). It applies to legal proceedings initiated on or after 10 January 2015. The old regulation still applies to court cases and verdicts initiated or rendered before 10 January 2015.
The new regulation contains changes related to jurisdiction agreements, related actions (lis pendens) and the abolition of exequatur, among others.
Many issues have nevertheless remained basically the same also in the new regulation. These include the default rule that defendants should be sued at their courts of domicile, as well as the alternative grounds for jurisdiction (e.g. contractual claims at the place of performance or tort claims where the harmful events occurred).
New rules on jurisdiction agreements
The old regulation (Article 23) required that at least one of the parties to a jurisdiction agreement had to be domiciled in a member state and that a member state court had to be specified in the jurisdiction agreement.
In the new regulation (Article 25) the domicile requirement of the old regulation has been dropped, meaning that a jurisdiction agreement falls under the scope of the regulation even if none of the parties are domiciled in a member state. This is a material change to the scope of jurisdiction agreements that are captured under the regulation.
In addition, the new regulation (Article 25) contains a new rule that the question of whether a jurisdiction agreement is null and void as to its substantive validity will be determined under the law of the member state identified in the said agreement.
Changes to lis pendens rules
The lis pendens rules of the old regulation (Article 27) faced strong criticism after the Gasser v MISAT decision (2003 ECR I-14693) where the alleged existence of a jurisdiction agreement had no impact when applying Article 27 and the rules regarding the court first seised (the court first seised was not that of the alleged jurisdiction agreement).
The new regulation now contains a change reflecting the criticism. The new regulation contains a rule (Articles 29 and 31) that a court of a member state that derives exclusive jurisdiction from a jurisdiction agreement between the parties must first examine its competence before any other court seised.
Abolition of exequatur
According to the new regulation (Article 39), a judgment given in a member state and which is enforceable in that member state is enforceable in the other member states without any declaration of enforceability being required.
A judgement under the new regulation is enforced by providing the competent enforcement authority with inter alia a copy of the judgment and a certificate by the court of origin that the judgment is enforceable (Article 42).
In practice, the abolition of the exequatur, where the local court still had to declare a judgment of another member state enforceable, removes one stage of the enforcement proceedings by allowing direct enforcement by the respective enforcement authorities within the EU. It remains to be seen how the authorities will start to apply the revised regulation. The idea is, however, that a judgment by a member state court should be directly enforceable within the EU.