Explanatory Memorandum to COM(2000)689 - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2000)689 - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (presented by the Commission ...
source COM(2000)689 EN
date 26-10-2000
i

Contents

1.

1. Background


On 14 July 1999, the Commission adopted a proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. i The proposal was transmitted to Parliament and the Council on 7 September 1999. At its March 2000 session, the Economic and Social Committee issued its Opinion on the proposal. i The European Parliament, consulted under the consultation procedure, referred the proposal to its Legal Affairs and Internal Market Committee (responsible for the report) and its Committee on Public Liberties and Citizens' Rights (for opinion). The Legal Affairs and Internal Market Committee, having received and considered the opinion of the Committee on Public Liberties and Citizens' Rights (adopted on 27 January 2000) approved its report on 4 September 2000. At the plenary session on 21 September 2000, the European Parliament adopted its opinion approving the Commission proposition subject to a number of amendments and asked the Commission to amend its proposal in accordance with Article 250 i of the EC Treaty.

2.

2. The amended proposal


This amended proposal is adopted in response to amendments voted on by Parliament. The Commission can accept a number of Parliament's amendments.

3.

2.1. Amendments accepted in whole or in part


4.

2.1.1. Amendments to take account of the special position of the United Kingdom and Ireland


Under the Protocol on the position of the United Kingdom and Ireland, these Member States do not participate in the adoption of measures under Title IV of the EC Treaty. But in the meantime they have given notice of their intention to participate in the negotiations on this initiative, using the possibility offered by the Protocol.

The amendments by Parliament to take account of this new situation should therefore be accepted and provisions relating to trusts should be inserted. These provisions or equivalents are already in the Brussels Convention, i but, given the position of the two Member States under the Protocol, were not incorporated in the proposal of 14 July 1999.

5.

Provisions concerned


- Article 5(5a),

- Article 23, 4th and 5th paragraphs,

- Article 57, 5th paragraph.

The Commission accordingly accepts amendments 21 and 27 and reincorporates the full text of the current provisions of the Brussels Convention relating to trusts in its amended proposal.

6.

2.1.2. Amendments to treat authentic instruments in the same way as judicial decisions, in terms de of automatic recognition


(a) The European Parliament proposes providing for the automatic recognition of authentic instruments in the same way as judgments. The Commission can accept the principle of this extension. The automatic recognition of authentic instruments is already provided for by the Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children. i

It also intends, as in the case of the Bruxelles II Regulation, to treat judgments and authentic instruments in exactly the same way for recognition purposes. The amended proposal accordingly incorporates amendment No 29 and further lays down the same rules for authentic instruments as are laid down by Article 33 for judgments, and in particular the possibility of a formal procedure for recognition of them.

7.

Provisions concerned


- Recitals 17 and 18,

- Article 54.

8.

The Commission can thus accept amendments 18 (a), 19 and 29 (first part)


(b) The Commission can likewise accept that notaries be expressly assimilated to authorities involved in procedures for obtaining a declaration of enforceability. It actually considered that the word 'authority' already included notaries.

Provisions concerned:

- Article 35, first paragraph,

- Annexes II and VI, point 3.

The Commission can thus accept amendments 28, 29 (end), 33 and 34.

9.

2.1.3. Amendment relating to jurisdiction in insurance matters


Parliament proposes limiting the multiplicity of courts having jurisdiction in insurance matters pursuant to Article 9 i, the purpose of which is to enable an insurer to be sued in the courts for the place where the policy-holder, the insured or a beneficiary is domiciled, regardless of the nature of the insurance contract (individual or group). i Parliament considers that the protection of the courts should be confined to individual insurance contracts so as to avoid excessive scattering of jurisdiction, the financial consequences of which would be excessive for insurers. It is therefore proposed that the article be amended so that the protection of the courts will be available only for individual insurance contracts.

The Commission can accept part of this amendment. The possibility offered to the policy-holder of suing in the courts for the place where he is domiciled, regardless of the nature of the contract, is already provided for by the Brussels Convention and there is no need to withdraw it, which would be a retrograde step. But the Commission can accept that the extension of the protection of the courts to the insured person and the beneficiary be confined to situations where the contract is an individual contract, in order to avoid undesirable multiplication of courts having jurisdiction.

Provision concerned: Article 9, point 2 of first paragraph.

The Commission can thus accept part of amendment 22.

2.1.3.1. Amendment of the time prescribed for presentation of a report on the application of the Regulation.

Parliament proposes that the report should take account of the Regulation's impact on small business and should be made within two rather than five years.

The Commission can accept the first part of the amendment. But it cannot accept the reduction from five to two years. It would be impossible, given the duration of judicial procedures in the Member States, to accumulate the necessary statistics and number of judgments under the Regulation to prepare the report.

10.

Provision concerned: Article 65


The Commission accepts amendment 31 (second part).

11.

2.1.3.2. Amendment providing for a time-lag between adoption and entry into force


As a rule a regulation enters into force on the 20th day following its adoption. But given the complexity of the subject-matter, a longer period should be allowed for those concerned to adapt to it (six months). But the period should run from the adoption of the regulation rather than from its publication in the Official Journal.

12.

Provision concerned: Article 67


The Commission can accept amendment 32 in part.

13.

2.2. AMENDMENTS NOT ACCEPTED


14.

2.2.1. Amendments relating to the addition of a new Article 17a (authorisation of clauses referring consumer disputes to a non-judicial dispute-settlement body)


The Commission observes that Parliament has not amended Article 16, laying down rules as to jurisdiction in consumer-protection matters. It also did not wish to authorise contract clauses allowing consumer contracts to refer consumer disputes to courts other than those for the place where the consumer is domiciled, thus derogating from the protection principle of Article 16 (jurisdiction at the place where the consumer is domiciled). On this point the Commission is attentive to the debates which took place in Parliament. It will review the system as soon as the Regulation has come into force on the basis of a stock-taking of alternative dispute-settlement schemes. The Commission is inserting a new recital 14a to that effect.

But Parliament proposes a provision that the consumer and the supplier may agree a contractual clause whereby disputes are referred, prior to any court action, to a non-judicial dispute-settlement scheme. A number of conditions are provided for, including prior approval of the scheme by the Commission.

The Commission shares the concerns underlying this amendment and Parliament's desire to consider the proposed Regulation as one component of a package of legislative and non-legislative measures, including the establishment of non-judicial dispute-settlement schemes. It acknowledges that it is desirable for parties to be able to settle their disputes on an amicable basis rather than going straight to the courts and that reference to the courts should be the last resort. It also observes that in practice the consumer will tend to prefer non-judicial solutions where they are available. To this end, a large number of projects are in hand, both by operators and by institutions, to promote the establishment of such alternative dispute-settlement schemes. i

But in the current state of progress it is not possible to make the options available to the consumer under the Regulation in terms of international jurisdiction subject to an obligation to go first to a non-judicial dispute-settlement scheme. For one thing, this solution could raise constitutional difficulties in certain Member States. For another, the schemes that this obligation would presuppose are not yet in operation. And thirdly, the procedural relationships between alternative dispute-settlement schemes and the courts (regarding limitation periods, for example) are highly complex and need further study.

In any event the Commission is planning to pursue current initiatives on alternative consumer dispute-settlement schemes. In the report that it is to make five years after the entry into force of the Regulation under Article 65, it will take stock of the situation and review the relevant provisions of the Regulation.

15.

Provision concerned: Article 16 and new Article 17a


The Commission cannot accept amendments 38 and 39.

16.

2.2.2. Amendments relating to Article 15 (definition of consumer contracts covered by the rules on jurisdiction in Article 16)


Parliament proposes a new paragraph to define the concept of activities directed towards one or more Member States, and takes as one of its assessment criteria for the existence of such an activity any attempt by an operator to confine its business to transactions with consumers domiciled in certain Member States.

The Commission cannot accept this amendment, which runs counter to the philosophy of the provision. The definition is based on the essentially American concept of business activity as a general connecting factor determining jurisdiction, whereas that concept is quite foreign to the approach taken by the Regulation. Moreover, the existence of a consumer dispute requiring court action presupposes a consumer contract. Yet the very existence of such a contract would seem to be a clear indication that the supplier of the goods or services has directed his activities towards the state where the consumer is domiciled. Lastly, this definition is not desirable as it would generate fresh fragmentation of the market within the European Community.

17.

Provisions concerned: Recital 13 and Article 15


The Commission cannot accept amendments 36 and 37.

18.

2.2.3. Insertion of a new Article 55a concerning the enforceability of settlements agreed within an alternative dispute-settlement scheme


Parliament proposes that such settlements should be enforceable in the same way as authentic instruments.

The Commission cannot accept this assimilation, which is radically contrary to the philosophy underlying the Regulation. A settlement obtained in an alternative dispute-settlement scheme is by definition neither ordered nor recorded by a person exercising public authority and cannot, therefore, be treated in the same way as an enforceable authentic instrument.

19.

Provision concerned: new Article 55a


The Commission cannot accept amendment 41, nor the last part (b) of amendment 18 (see supra, 2.1.2)

20.

2.2.4. Other amendments not accepted


21.

2.2.4.1. Insertion of a new Recital 4d (amendment 5)


The Commission cannot accept this amendment, which would situate this proposal for a Regulation in the context of a package of legislative and non-legislative measures and refer to a further Commission decision relating to the establishment of non-judicial dispute-settlement schemes and small claims procedures. This recital is not compatible with the principle that the sole purpose of a recital is to explain the provisions of the Regulation. Moreover, even if the Commission shares Parliament's desire for rapid development of alternative dispute-settlement schemes, it cannot accept the adoption of the Regulation being subject to that development. For one thing, the Regulation serves a horizontal purpose - to determine rules of jurisdiction for the entire range of civil and commercial matters and not just for consumer disputes. For another, the jurisdiction rules will still be needed even after the alternative schemes have been set up.

22.

2.2.4.2. Amendment of recital 5 (amendment 14)


The Commission cannot accept this amendment (Regulation not to be adopted before the Brussels Convention has been revised) as it would be contrary to the Amsterdam Treaty and does not reflect the communitisation of judicial cooperation in civil matters.

23.

2.2.4.3. Other amendments to the recitals


Amendments 2, 7, 8, 10, 12, 13, 20 and 36 either restate principles that flow from the Treaties or contain commitments to be borne by the Commission or are unrelated to the Regulation's provisions. The Commission cannot accept them.