Out-Law News 2 min. read
09 Feb 2006, 11:44 am
There are several Conventions governing conflicts of national jurisdiction and the enforcement of judgments in civil and commercial matters.
The first of these was the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. In 1988, similar provisions were then included in a Convention between EU Member States and Member States of the European Free Trade Association (EFTA), with the exception of Liechtenstein. This was called the Lugano Convention.
After the entry into force of the Treaty of Amsterdam, which conferred on the Community new powers relating to judicial cooperation in civil matters, the European Council of Ministers adopted a Regulation replacing the Brussels Convention as between all the Member States of the Community with the exception of Denmark.
Next, the Council authorised the Commission to begin negotiations for the purposes of the adoption of a new Convention between the Community and the EFTA countries (the new Lugano Convention) to replace, with reference to the subject matter and purpose of the Regulation, the Lugano Convention.
However, it also decided to submit a request to the Court for an opinion as to whether competence to conclude the new Lugano Convention was exclusive to the Community or shared with the Member States.
The Council was concerned that the question of competence was one that frequently arose, but that the Member States were divided as to the answer.
The Court stressed that where common rules have been adopted, Member States no longer have the right to undertake obligations with non-member countries that affect those rules.
It then determined that a comprehensive and detailed analysis has to be carried out to establish whether the Community has the competence to conclude an international agreement and whether that competence is exclusive.
In doing so, said the Court, account must be taken not only of the area covered by the Community rules and by the provisions of the agreement envisaged, in so far as the latter are known, but also of the nature and content of those rules and provisions, to ensure that the agreement is not capable of undermining the uniform and consistent application of the Community rules and the proper functioning of the system which they establish.
The Court then observed that the rules on conflict of jurisdiction in international agreements concluded by Member States or by the Community with non-member States necessarily establish criteria of jurisdiction not only in non-member States but also in the Member States.
Moreover, said the Court, the provisions of the new Lugano Convention covered matters governed by the Regulation – in this case the uniform and consistent application of the Regulation and the proper functioning of the system it establishes.
The Court concluded that because of the unified and coherent system that the Regulation establishes for the recognition and enforcement of judgments, an agreement such as the new Lugano Convention containing provisions on the jurisdiction of the courts or on the recognition and enforcement of judgments was capable of affecting that system.
This was because the Convention sets out the principle that a judgment given in a Contracting State is to be recognised in the other Contracting States without any special procedure being required.
Such a principle affects the Community rules since it enlarges the scope of recognition of judicial decisions, thus increasing the number of cases in which judgments delivered by courts of countries not members of the Community whose jurisdiction does not arise from the application of the Regulation will be recognised.
The Court therefore found that the new Lugano Convention would affect the uniform and consistent application of the Community rules as regards both the jurisdiction of courts and the recognition and enforcement of judgments and the proper functioning of the unified system established by those rules.
Accordingly, the Court said the European Community had exclusive competence to conclude the new Lugano Convention.
