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Civil Jurisdiction and Judgments in Europe - The Brussels I Regulation, the Lugano Convention, and the Hague Choice of Court Convention by Hartley, Trevor C (20th July 2017)

Part I General and Introductory, 2 International and Territorial Application

From: Civil Jurisdiction and Judgments in Europe: The Brussels I Regulation, the Lugano Convention, and the Hague Choice of Court Convention

Trevor C Hartley

Subject(s):
International Scope — Jurisdictional agreements and the Brussels Regulation — Territorial Applications — Jurisdiction under the Brussels-Lugano Regime — Jurisdiction under the Brussels I Regulation — Jurisdiction under the Brussels II Regulation — Jurisdiction under the Lugano Convention — Jurisdiction under the traditional rules

(p. 19) International and Territorial Application

2.01  In this chapter, we start our consideration of the scope of the instruments. This is an important question because if a case is outside their scope, they will not apply. The concept of ‘scope’ is a complicated one with many different aspects. We first consider the international and territorial aspects: the rule that the instruments apply only in situations with an international element and the fact that they apply only to particular territories.

(p. 20) The Need for an International Element

2.02  None of the instruments applies unless the case contains an international element.1 Although not expressly stated in Brussels or Lugano, this was recognized by the Jenard Report on the original Brussels Convention2 and was confirmed by the CJEU in Owusu v. Jackson.3 However, the way the principle applies, and what constitutes an international element, can depend on the situation in which the issue arises or, to be more precise, on the particular provision in question.

2.03  If, under Brussels,4 both parties are domiciled in the same Member State and all other relevant elements are located solely in that State, the jurisdiction of the courts of that Member State will not depend on the Regulation: it will depend on national law. However, if it is then desired to enforce the judgment in another Member State, that fact alone will constitute an international element so that the enforcement of the judgment will depend on the Regulation.5 Even if the case was not international when the action was originally brought, it will become international when the judgment is enforced in another Member State. The reason for this is obvious.

2.04  In other cases, the position is more problematic. Jenard says that if both parties are domiciled in the Member State in which the action is brought, the Regulation (Convention) will not normally apply, but there would be an exception if the case concerned a matter over which the courts of another Member State had exclusive jurisdiction (rights in rem over immovable property in that other Member State would constitute an example).6 (p. 21) Another exception he mentions is where the same claim is already being litigated between the same parties before the courts of another Member State.7

2.05  Jenard does not discuss the case where both parties are domiciled in one Member State but the courts of another Member State would have jurisdiction under the Regulation because the claim arose there—for example, because the defendant committed a tort against the claimant there. Does the fact that the claim arose in the other Member State constitute a sufficient international element? It is suggested that it should: the Regulation should apply so that the courts of the Member State in which the tort was committed would be entitled to take jurisdiction under it, even though the claimant has the option of suing the defendant in the Member State of their common domicile.

2.06  There can be no doubt that if a defendant domiciled in one Member State is sued in another Member State by a claimant domiciled in the first Member State, the case would be international for the purpose of applying the rule that a person domiciled in one Member State cannot be sued in another Member State unless the Brussels Regulation so provides.8 If this were not so, the protection granted by the Regulation to EU domiciliaries would not apply in the case in which its application would be most needed. This means that if proceedings are brought in a Member State other than that in which the parties are domiciled, the courts of the latter Member State will not be able to take jurisdiction under national law. If they do not have jurisdiction under the Regulation, they will not have jurisdiction at all.

2.07  If all this is correct, it would seem that the doctrine has little practical significance. However, there is one situation in which it might be important. If both parties to a contract are domiciled in one Member State and all other relevant factors are linked to that Member State only, would a choice-of-court agreement in favour of another Member State be valid under the instruments? Could it be argued that the choice-of-court agreement itself constitutes the necessary international element? Since this question is specific to the subject of choice-of-court agreements, it will be discussed when that subject is considered.9

States to Which the Instruments Apply

2.08  We next consider the territories to which the instruments apply. The first question is the States to which they apply.10

(p. 22) Brussels 2012

2.09  As a Union Act, Brussels 2012 applies in principle to all the Member States of the European Union. However, special consideration must be given to Ireland, the United Kingdom, and Denmark.

Ireland and the United Kingdom

2.10  Brussels 2012 was adopted under provisions forming part of Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU).11 Under a protocol to the Treaties,12 it was provided that measures under Title V of Part Three of the Treaty would not apply to the United Kingdom and Ireland unless those States specifically opted to be bound by the measure.13 When Brussels 2012 was adopted, the United Kingdom and Ireland opted in;14 they were, therefore, bound by it.15 The result is that Brussels 2012 applies to these two States in the same way as it does to other States, though for more complex reasons.

Denmark

2.11  Denmark is in a different position. Under another protocol,16 it was provided that measures adopted under Title V of Part Three of the TFEU would not apply to Denmark in any circumstances; consequently, Denmark does not have the power to opt in.17 However, after Brussels 2000 was adopted, Denmark concluded an agreement under international law with the European Union (then the Community).18 The Agreement was signed on behalf of the Union (Community) on 19 October 2005; and concluded by the Union (Community) on 27 April 2006.19 Under it, Denmark agreed to apply the provisions of Brussels 2000 (subject to minor modifications). It was also agreed that Danish courts would make references to the CJEU with regard to the Regulation in the same way as other Member States. (p. 23) In order to carry out its obligations under this Agreement, Denmark adopted legislation giving the provisions of the Brussels Regulation the force of law in Denmark as from 1 July 2007. The Agreement provided that Denmark could declare that it would also apply any amendments to the Regulation. On 19 December 2012, Denmark made such a declaration to the Commission with regard to Brussels 2012. The result is that the Regulation applies to Denmark by virtue of international law, rather than Union law. The practical effect is, however, the same.

Lugano

2.12  We distinguish between the present Parties to the Convention and possible future Parties.20

Present Parties

2.13  In the Lugano Convention case,21 the CJEU held that the European Union had exclusive competence to conclude the revised Lugano Convention because of the impact that the Lugano Convention would have on the Brussels Regulation.22 However, since the Brussels Regulation did not apply to Denmark under EU law, Denmark (but none of the other Member States of the European Union) is a Party to the 2007 Lugano Convention.23 The result is that the Parties to the 2007 Lugano Convention are the European Union, Denmark, Iceland, Norway, and Switzerland. Consequently, the 2007 Lugano Convention (like the Hague Convention) is applicable in all the EU Member States other than Denmark by reason of EU law. In Denmark, it applies by virtue of international law, as it does in Iceland, Norway, and Switzerland.

Future Parties

2.14  Article 70 of the 2007 Lugano Convention provides for the possibility of accession to the Convention after it has entered into force by three categories of States:

  • •  future members of the EFTA;

  • •  EU (then EC) Member States acting on behalf of non-European territories that are part of the territory of that Member State or for whose external relations that Member State is responsible;

  • •  any other State.

(p. 24) 2.15  An important difference between States in the first two categories and States in the third category (‘any other State’) is that the latter may accede only with the unanimous agreement of the Contracting Parties.24 This requirement does not apply to States in the first two categories.

2.16  There have not been any new members of EFTA since the 2007 Lugano Convention was signed, and it is unlikely that there will be any in the foreseeable future; nor have there been any applications by other States to join. The position regarding territories falling within the second category will be considered below.25

Hague

2.17  Both a State and a ‘Regional Economic Integration Organization’ (the European Union) may become a Party to the Hague Convention. We first consider States.

States

2.18  The Hague Convention applies to the territories of the States that are Parties to it. To discover which States are Parties at any given time, one should consult the Status Table for the Convention on the website of the Hague Conference. The website of the Hague Conference is http://www.hcch.net. One can either navigate from this, or go directly to the Status Table for the Choice of Court Convention.26 The Convention entered into force on 1 October 2015. At the time of writing, the Parties to it were Mexico, the European Union, and Singapore. It applies to the EU Member States, except Denmark, by virtue of Article 216(2) TFEU.

The European Union

2.19  A Regional Economic Integration Organization may also become a Party to the Convention, provided it is constituted solely by sovereign States and has competence over at least some of the matters governed by the Convention. If it becomes a Party, a Regional Economic Integration Organization has the same rights and obligations as a Contracting State to the extent that it has competence over matters governed by the Convention.27

2.20  The provisions permitting a Regional Economic Integration Organization to become a Party to the Convention were adopted, at a fairly late stage, for (p. 25) the benefit of the European Union, the only entity to which it is ever likely to apply. This was necessary once it was decided by the European Union that it had treaty-making competence in the area. When the Convention was signed, it was not certain whether the Union’s power in the area would be exclusive or concurrent (shared with the Member States). For this reason, two provisions were included in the Convention. The first, Article 29, permits a Regional Economic Integration Organization to become a Party to the Convention even if it does not have competence over all the matters governed by the Convention. This would have permitted the Union to become a Party even if its competence was not exclusive.28 In such a case, the EU Member States would have become parties as well.29

2.21  However, a second provision was adopted to cover the situation if it were decided that the EU had exclusive competence. This is Article 30(1), which provides:

At the time of signature, acceptance, approval or accession, a Regional Economic Integration Organisation may declare that it exercises competence over all the matters governed by this Convention and that its Member States will not be Parties to this Convention but shall be bound by virtue of the signature, acceptance, approval or accession of the Organisation.

In the end, it was this provision that was applied when the Union signed the Convention on 1 April 2009.30

2.22  The reason was that the CJEU gave its decision in the Lugano Convention case31 on 7 February 2006, a little over six months after the text of the Hague Convention was adopted.32 In the Lugano case, the court held that the European Union had exclusive competence to conclude the revised Lugano Convention because of the impact that the Lugano Convention (p. 26) would have on the Brussels Regulation.33 Since the Hague Convention would have had a similar impact, it followed that exclusive competence rested with the Union with regard to the Hague Convention as well.

Ireland, the United Kingdom, and Denmark

2.23  The special position of Ireland, the United Kingdom, and Denmark with regard to the Brussels Regulation was considered above.34 It was explained that the position of these three States is governed by two protocols, one (Protocol No. 21) for Ireland and the United Kingdom and one (Protocol No. 22) for Denmark. Since Ireland and the United Kingdom opted into the Regulation, they are bound by it under EU law; Denmark could not opt in, but it is bound under an international treaty it concluded with the Union.

2.24  Both protocols cover international agreements concluded by the Union (then the Community) under Title IV. Consequently, the Union did not gain treaty-making competence over the subject matter of the Hague Convention so as to bind Denmark, though it did gain it to bind the United Kingdom and Ireland. For this reason, when it signed the Convention on 1 April 2009, the Union (then the Community) made the following declaration under Article 30 of the Convention:35

The European Community declares, in accordance with Article 30 of the Convention on Choice of Court Agreements, that it exercises competence over all the matters governed by this Convention. Its Member States will not sign, ratify, accept or approve the Convention, but shall be bound by the Convention by virtue of its conclusion by the European Community.

For the purpose of this declaration, the term European Community does not include Denmark by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community.

This is why the Convention is binding on Ireland and the United Kingdom, even though they are not Parties to it. It will not become binding on Denmark, on the other hand, unless it becomes a Party.

European Community and European Union

2.25  When the Treaty of Lisbon came into force on 1 December 2009, the European Community ceased to exist and was replaced by the European (p. 27) Union, which had previously existed alongside the Community. As a result, the Union made the following declaration:

… as from 1 December 2009, the European Union has replaced and succeeded the European Community (Article 1, third paragraph, of the Treaty on European Union as it results from the amendments introduced by the Treaty of Lisbon) and has exercised all rights and assumed all obligations of the European Community whilst continuing to exercise existing rights and assume obligations of the European Union. The General Secretariat of the Council of the European Union, therefore has the honour to notify the Permanent Representation of the Netherlands36 to the European Union that, as from 1 December 2009, the European Community has been replaced and succeeded by the European Union in respect of all Conventions/Agreements for which the Ministry of Foreign Affairs of the Kingdom of the Netherlands is the depositary and to which the European Community, replaced from 1 December 2009 by the European Union, is a contracting party.

This makes clear that the European Union is the Party to the Convention.

2.26  Under Union law, when an international agreement is concluded by the Union, it is also binding on the Member States. This is laid down by Article 216(2) TFEU, which states:

Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.

It was on the basis of this Article that the Union was able to make the declaration on 1 April 2009, set out above, in which it stated that the Member States (other than Denmark) would be bound by the Convention by virtue of its conclusion by the Union (then the Community).

2.27  Unfortunately, the EU Treaties do not make provision for the situation in which the ‘common rules’ affected by the international agreement are not binding on all the Member States. However, it is a reasonable supposition that in such a case the Union still has treaty-making power under Article 216(1), but such power is exclusive (under Article 3(2) TFEU) only as regards those Member States that are bound by the relevant ‘common rules’. It would also seem to follow that only the latter Member States are bound by the international agreement by virtue of its conclusion by the Union. This, at any rate, is the basis on which the Union has proceeded. For this reason, Denmark is not bound by the Convention by reason of the fact that the Union is a Party. It will therefore have to conclude it independently.

Territories with a Special Status

2.28  So far, we have been considering the States to which the instruments apply. We must now focus more closely and ask what territories make up (p. 28) each State for this purpose. This involves looking at territories of the EU Member States which have a special status (dependencies and overseas territories). The question whether the instruments apply to these territories depends, in EU law, on whether they are to be regarded as part of the relevant Member States for this purpose.

Brussels 2012

2.29  To ascertain the territorial scope of Brussels 2012,37 we must look to the EU Treaties to see which territories are regarded as part of each Member State for EU purposes in general. This will determine the territorial scope of Brussels 2012 unless there is a particular provision modifying the general rule.38

2.30  Article 52(1) TEU simply says that the Treaty applies to the Member States, which it lists. Article 52(2) states that the territorial scope of the Treaty is specified in Article 355 TFEU. This latter provision reads as follows:

In addition to the provisions of Article 52 of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:

  1. 1.  The provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349.39

  2. 2.  The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.40 The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.

  3. 3.  The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.

  4. 4.  The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.41

  5. (p. 29) 5.  Notwithstanding Article 52 of the Treaty on European Union and paragraphs 1 to 4 of this Article:

    1. (a)  the Treaties shall not apply to the Faeroe Islands;

    2. (b)  the Treaties shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;

    3. (c)  the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.

  6. 6.  The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.

2.31  This sets out the position when the TFEU entered into force. However, paragraph 6 provides for the modification of the status of Danish, French, or Dutch territories. Acting under this provision, the Council adopted a decision removing Saint-Barthélemy from the list in paragraph 1.42 Subsequently, another decision was taken bringing the French territory of Mayotte within the terms of paragraph 1.43 It seems that the status of Saint-Martin remains unchanged.

2.32  The effect of this is that the Brussels Regulation applies to the following:

  • •  Guadeloupe, French Guiana, Martinique, Mayotte, Réunion, Saint-Martin, the Azores, Madeira, and the Canary Islands;44

  • •  Gibraltar;45 and

  • •  the Åland Islands.

(p. 30) 2.33  It does not apply to:

  • •  the Channel Islands and the Isle of Man;46

  • •  United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus;47

  • •  the overseas countries and territories listed in Annex II to the TFEU;

  • •  The Faeroe Islands;48

  • •  Greenland;49

  • •  St Pierre and Miquelon;

  • •  Saint-Barthélemy;

  • •  New Caledonia;

  • •  The Wallis and Futuna Islands;

  • •  French Polynesia;

  • •  Andorra;50

  • •  Monaco;51

  • •  San Marino;52 and

  • •  the Vatican.53

Although the northern part of Cyprus regards itself as an independent State, known as the Turkish Republic of Northern Cyprus (TRNC), it is not recognized internationally, except by Turkey. In the eyes of the European Union and its Member States (including the United Kingdom), Northern Cyprus is part of the Republic of Cyprus, a Member State, even though the Republic of Cyprus does not in fact exercise jurisdiction there.54 The Regulation applies to Northern Cyprus on this basis. The courts of the TRNC are not recognized by the EU and its Member States; consequently, a judgment granted by one of these courts, or a choice-of-court agreement (p. 31) designating one of these courts, would not be recognized or given effect to in EU Member States.

Lugano 2007

2.34  The EU Member States (other than Denmark) are not Parties to the 2007 Lugano Convention.55 The European Union is a Party, and under Article 216(2) TFEU56 that makes the Convention binding on the Member States. There can be no doubt that the territorial scope of Article 216(2) must in principle be that of the Treaty as a whole. This is set out in Article 355 TFEU,57 explained above. In other words, by virtue of Article 216(2) TFEU, Lugano 2007 must cover all the territories covered by Brussels 2012. In addition, it is possible for Lugano 2007 to apply to territories of Member States to which Brussels 2012 does not apply, if a declaration is made by the Member State in question.58 To understand the reason for this provision, we must turn to the Brussels Convention.

Brussels Convention

2.35  The territorial scope of the Brussels Convention was wider than that of Brussels 2012. The position of territories falling within the scope of the former but not the latter is dealt with by Article 68(1) of Brussels 2012, which provides that the Brussels Convention will continue to apply to the relations between the Member States and those territories of Member States that fall within the scope of the Brussels Convention, but, pursuant to Article 355 TFEU, they are not covered by the Regulation.59

2.36  It is not entirely clear to which territories the Brussels Convention continues to apply, but they appear to be certain non-European territories of France and the Netherlands.60 The original version of the Brussels Convention, as amended by the 1978 Convention (the Convention under which Denmark, Ireland, and the United Kingdom became Parties)61 specified its territorial application in Article 60. However, this provision was (p. 32) repealed by Article 21 of the San Sebastián Convention (accession of Spain and Portugal),62 which came into force on 1 December 1991. From this date onwards, there was no provision in the Brussels Convention laying down its territorial scope. This appears to have been done because it was thought that the territorial scope of the Brussels Convention could then be extended to territories outside Europe by means of declarations.

2.37  This at least is why the 1988 Lugano Convention contained no provision specifying its territorial scope. In the Report on that Convention by Jenard and Möller,63 it is said that, under Article 60 of the Brussels Convention (this was before the repeal of Article 60), the territorial scope of the Brussels Convention was (subject to certain exceptions) confined to the European territories of the Contracting States.64 This, the Report said, created a problem with regard to the non-European territories of Contracting States. Since some of these territories were important financial centres to which assets could easily be transferred, their exclusion from the territorial scope of the Lugano Convention could frustrate the enforcement of a judgment under that Convention. It seems that by omitting a provision laying down its territorial scope, it was thought that the Lugano Convention could be extended to cover the territories in question, provided the relevant Member State made a declaration to that effect. This is in accord with international law, under which (in the absence of a provision to the contrary) a treaty may be extended by a Party to cover any of its dependent territories.65

2.38  It appears that the overseas territories containing important financial centres were mainly British. It was hoped that the United Kingdom would in due course make a declaration bringing them within the scope of the Convention. The Jenard/Möller Report says that, during the negotiations, the United Kingdom mentioned a number of territories, including the British Virgin Islands and Hong Kong (then a British territory), to which the Lugano Convention might be extended.66 It was accepted, however, that the United Kingdom was under no obligation to make such an extension, and no extension has in fact been made.

2.39  When the 2007 Lugano Convention was adopted, it was provided by Article 70(1)(b) that the Convention would be open for accession by ‘Member States of the European Community acting on behalf of certain non-European territories that are part of the territory of that Member State or for whose external relations that Member State is responsible, under the conditions laid down in Article 71’. Article 71 requires declarations to be made by the Member States in question. No such declarations appear to have been made. Consequently, (p. 33) for the present, the Brussels Convention remains in force. This is confirmed by Recital 9 of Brussels 2012,67 which reads:

The 1968 Brussels Convention continues to apply to the territories of the Member States which fall within the territorial scope of that Convention and which are excluded from this Regulation pursuant to Article 355 of the TFEU.

The intention is that, in the future, these territories will be transferred to the 2007 Lugano Convention. When they have all been transferred, the Brussels Convention will at last cease to apply, at least between different Member States of the European Union.68

The Hague Convention

2.40  The Hague Convention contains no provision on its application to dependencies or overseas territories of Contracting States. In accordance with international law and practice, one would therefore expect it to extend only to the metropolitan territories of a Contracting State, unless the State in question has made a contrary declaration.69 As the power of the Union to become a Party to the Convention is derived from the impact of the Convention on the Brussels Regulation, it would be logical if the territorial scope of the Convention as far as the EU States were concerned was the same as that of the Regulation.

Internal Jurisdiction: The United Kingdom

2.41  We now consider conflicts within a Member State. We limit ourselves to dealing with the United Kingdom. Two questions must be considered: jurisdictional conflicts between the United Kingdom and Gibraltar; and jurisdictional conflicts between different parts of the United Kingdom.

Gibraltar

2.42  As far as Member States other than the United Kingdom are concerned, Gibraltar falls under Brussels 2012. This follows from 355 Article TFEU, under which Gibraltar is regarded as part of the United Kingdom, even though, under UK constitutional law, it is not part of the United Kingdom.

2.43  However, since the European Union regards Gibraltar as part of the United Kingdom for this purpose, relations between the United Kingdom and Gibraltar are, in EU eyes, an internal matter, which may be regulated by the United Kingdom as it sees fit. For this reason, the United Kingdom is entitled under EU law to lay down a special regime governing jurisdictional conflicts (including the recognition and enforcement of judgments) (p. 34) between the United Kingdom and Gibraltar. It has done this by the Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order, SI 1997/2602, which came into force on 1 February 1998. Under this, provisions corresponding to certain specified provisions of the Brussels Convention70 apply between the United Kingdom and Gibraltar, which, for this purpose, are treated by UK law as if each were a separate Contracting State.71 Under this regime, the Brussels Convention does not apply as such. Rather, provisions of United Kingdom law modelled on provisions of the Brussels Convention are applicable. For this reason, the system would not be affected if the Brussels Convention were formally terminated.

Jurisdiction within the United Kingdom

2.44  Under UK law, the United Kingdom consists of three parts:

  • •  England and Wales (one unit);

  • •  Scotland;

  • •  Northern Ireland.

2.45  Since EU law permits the United Kingdom to regulate internal jurisdictional conflicts as it sees fit, UK law has laid down a special regime in Part II of the Civil Jurisdiction and Judgments Act 1982, under which selected provisions of the Brussels Convention, modified in some cases, are applicable. As set out in Schedule 4 to the Act, omissions are indicated by dots and additions by bold type. Although modelled on the Brussels Convention, this applies as UK law, not international law or EU law; consequently, it too would not be affected if the Brussels Convention were terminated.

2.46  Since the Brussels Convention does not apply as such in this situation, it seems that the CJEU has no jurisdiction to give a ruling on its interpretation on a preliminary reference from a court in the United Kingdom which is dealing with the modified version of the Convention laid down by Part II of the Civil Jurisdiction and Judgments Act, even though UK courts are required by Section 16(3) of that Act to have regard to relevant decisions of the CJEU on the meaning and effect of the equivalent provisions of the Brussels Convention.72

Federal Problems

2.47  We are concerned in this section with special problems that may arise in the case of federal States.

(p. 35) Brussels 2012

2.48  The problems we are considering do not arise in the case of Brussels 2012. Since Brussels 2012 constitutes Union law, it applies to Member States that are federations—for example, Germany—in exactly the same way as to unitary States. The fact that the subject matter of the Regulation falls within the jurisdiction of a federal unit, rather than the federation itself, is irrelevant. Under Union law, a regulation is directly effective in exactly the same way in a unit of a federation as it is in other States; the federal government is still responsible for ensuring its application.73

Lugano

2.49  There is no provision in the Lugano Convention of the kind we are considering. This Convention must, therefore, be applied to the entire territory of a Party.

Hague

2.50  Article 28 of the Hague Convention contains a special provision on ‘non-unified legal systems’. It reads as follows:

Article 28 Declarations with respect to non-unified legal systems

  1. 1.  If a State has two or more territorial units in which different systems of law apply in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that the Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

  2. 2.  A declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

  3. 3.  If a State makes no declaration under this Article, the Convention shall extend to all territorial units of that State.

  4. 4.  This Article shall not apply to a Regional Economic Integration Organisation.

2.51  The purpose of this provision is to solve a problem that affects some federal States—for example, Canada. The problem is that, while the power to conclude international agreements is usually given to the federal government—for example, the Government of Canada—the power to pass the legislation necessary to implement the agreement may rest with the units. Thus, if the agreement needs implementing legislation, the State in question may be in a difficult situation. The Treaty has to be concluded by the federal government, which is responsible internationally for its implementation. However, power to implement it may not rest with the federal government. What will happen if one or more of the units fail to adopt the necessary legislation?

(p. 36) 2.52  One solution might be for the units to adopt the necessary legislation first, and to provide that it will not come into force until the agreement has been ratified by the federal government. However, this might not be ideal, especially as it would mean that one unit could hold up ratification for the whole country.

2.53  A better solution would be for the agreement to apply only to those territories that adopt the legislation. This, however, requires a special provision in the agreement. Article 28 constitutes such a provision. It permits a State that becomes a Party to the Convention to declare that the Convention will apply only to one or more specified territorial units. This declaration may be modified by a later declaration. So, as more units adopt the necessary implementing legislation, the application of the Convention may be extended. Presumably, it could also be reduced if a particular unit no longer wishes to participate and repeals the legislation.

2.54  This problem arises only if, under the national Constitution, the federal government does not have the power to adopt the legislation needed to implement the agreement. In some federal States, the federal authorities automatically have power to adopt the necessary executive or legislative measures needed by a treaty, even if they could not have adopted those measures in the absence of the treaty.74

2.55  In some situations, the problem can be solved if, under the law of the State in question, international agreements are capable of having direct effect—in other words, if the agreement itself can constitute the law of the land without the necessity for implementing legislation. In these so-called monist countries, this may be sufficient to put the agreement into operation.75

2.56  For these reasons, the United States does not need Article 28. However, Canada does: it is not a ‘monist’ country, and there is no rule in Canadian constitutional law that the conclusion of a treaty by the Canadian Government gives any greater legislative powers to the federal Parliament than it would otherwise have had.76

2.57  Article 28 does not apply to a Regional Economic Integration Organization. This is because the European Union does not need it. Under Article 216(2) TFEU, any international agreement to which the Union is a Party is automatically binding on the Member States.77 Moreover, it is directly effective in them to the extent that it is capable of having such effect.78

(p. 37) 2.58  To discover which declarations have been made under Article 28, one should consult the Status Table for the Convention on the website of the Hague Conference,79 http://www.hcch.net. One can either navigate from this, or go directly to the Status Table for the Choice of Court Convention.80

Conclusions

2.59  The territorial scope of the instruments raises complicated issues. All three instruments apply in the European Union as part of EU law. Their territorial scope is, first and foremost, to be determined by looking at the EU Treaties. In the non-EU Parties to Lugano and Hague, the position is different. In those States, the instruments apply by virtue of international law.81

2.60  Although seemingly esoteric, these issues are of practical importance. For example, if an English court is asked to enforce a judgment from Gibraltar, it should look to the special regime laid down by the Civil Jurisdiction and Judgments Act 1982 (Gibraltar) Order; if it is asked to take jurisdiction over a defendant domiciled in, say, Mayotte, or to give effect to a choice-of-court agreement designating the courts of Monaco or to give a ruling on title to land in Madeira, it should know whether one of the EU instruments applies or whether the matter is to be decided by the common law.(p. 38)

Footnotes:

1  Brussels 2012 was adopted under Articles 67(4) and 81(2)(a), (c), and (e) TFEU. Article 81(2) TFEU confers law-making powers on the Union for the purpose of giving effect to the objectives laid down in Article 81(1). This latter provision is concerned with judicial co-operation in ‘civil matters having cross-border implications’. So if it was applicable in cases without cross-border implications, it would probably be ultra vires. As regards Lugano 2007, the preamble states that its purpose is to determine the ‘international jurisdiction’ of courts; see also the Pocar Report, paragraph 14. For Hague, see paras 13.38 et seq., below.

2  At p. 8.

3  Case C-281/02, ECLI:EU:C:2005:120, [2005] ECR I-1383 at paragraph 25 of the judgment. The CJEU made clear, however, that the link does not have to be with another Member State: a link with a non-member State will constitute an international element as well. See also Maletic, Case C-478/12, ECLI:EU:C:2013:735, in which the CJEU held, in a consumer case in which there were two defendants one of which was domiciled in the same Member State as the consumer and the other in another Member State, that the Brussels Regulation applied with regard to both defendants. It seems that the international element resulting from the foreign domicile of the second defendant was carried over to the first defendant.

4  The same applies, mutatis mutandis, to Lugano.

5  Jenard Report, p. 8.

6  Ibid.

7  Ibid. This refers to the lis pendens doctrine, discussed in Chapter 21.

8  Brussels 2012, Article 5(1). The equivalent provision in Lugano 2007 is Article 3(1).

9  See Chapter 13, paras 13.33 et seq.

10  The position regarding territories with a special status (dependencies and overseas territories) will be discussed in paras 2.28 et seq., below.

11  Article 67(4) and Article 81(2)(a), (c), and (e) TFEU. This is expressly stated at the beginning of the preamble to the Regulation.

12  The Protocol on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice, Protocol No. 21 to the TFEU.

13  Article 1 and Article 3 of the Protocol.

14  Brussels 2012, Recital 40.

15  They also opted into Brussels 2000: Brussels 2000, Recital 20.

16  The Protocol on the Position of Denmark (Protocol No. 22 to the TFEU).

17  In 2016, a referendum was held in Denmark on a proposal that Denmark should go over to the UK position, but this was rejected.

18  On this, see Nielsen, ‘Brussels I and Denmark’ [2007] IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) 506; Tebbens, ‘International Law in Aid of Imperfect Community Law’ in Frantzen (Torstein), Giertsen (Johan), and Moss (Giuditta Cordero), Rett og Toleranse (Festschrift til Helge Johan Thue) (Gyldendal Norsk Forlag, Oslo, 2007), p. 453.

19  Decision 2006/325/EC, OJ 1006, L 120, p. 22. The United Kingdom and Ireland opted into the Agreement.

20  Pocar Report, paragraphs 1–8.

21  Opinion 1/03, ECLI:EU:C:2006:81, [2006] ECR I-1145.

22  For the details, see paras 13.24 et seq., below.

23  In the Lugano case, the CJEU did not expressly rule on the position of Denmark, but it seems to have been taken for granted by all concerned that Denmark would be a Party to the new Lugano Convention.

24  Article 72(3).

25  See paras 2.34–2.39.

27  Ibid.

28  It would have had the rights and obligations of a Contracting State only to the extent that it had competence over the matters governed by the Convention: Article 29(1), second sentence. Under Article 29(2), a Regional Economic Integration Organization is obliged, at the time of signature, acceptance, approval, or accession, to notify the depositary in writing of the matters governed by the Convention in respect of which competence has been transferred to it by its Member States.

29  If this had been the case, the European Union’s instrument would not have been counted, in addition to those of its Member States, for the purpose of the entry into force of the Convention: Article 29(3).

30  For the decision authorizing signature, see Council Decision of 26 February 2009, Decision 2009/397/EC, OJ 2009, L 133/1. The EU Member States did not sign it. The Final Act of the Session of the Conference in which the Convention was adopted was signed by the Member States (on 30 June 2005), but this is not the same as signing the Convention itself, even though the Final Act contains the text of the Convention. The purpose of signing the Final Act was simply to verify the text of the Convention, as adopted by the Conference.

31  Opinion 1/03, ECLI:EU:C:2006:81, [2006] ECR I-1145.

32  It was adopted on 30 June 2005. This is the date on which the Final Act, which established the text of the Convention, was signed in The Hague. For this reason, the Convention is known as the Hague Convention of 30 June 2005.

33  For the details, see paras 13.24 et seq., below.

34  See paras 2.10 and 2.11, above.

35  Council Decision of 26 February 2009, Decision 2009/397/EC, OJ 2009, L 133/1.

36  The Netherlands is the depositary of the Hague Convention: Article 27(4).

37  The position is the same regarding Brussels 2000. For a general discussion on this topic, see Gaudemet-Tallon, Chapter 2.

38  See the Lugano case, Opinion 1/03, ECLI:EU:C:2006:81, [2006] ECR I-1145, where the CJEU refers, in paragraph 15 of the judgment, to Article 299 EC (now Article 355 TFEU).

39  These territories, though geographically outside Europe, are regarded, under the Constitution of the State concerned, as being an integral part of that State: the Canary Islands are part of Spain; the Azores and Madeira are part of Portugal; and the others are French. Article 349 TEC provides that all these territories are entitled to special privileges within the European Union. However, this does not detract from the fact that they are all part of the territory of one or other of the Member States; the Regulation applies to them on that basis.

40  Part Four consists of Articles 198 to 204 TFEU. These provisions are concerned mainly with trade and do not have the effect of making the Brussels Regulation applicable to these territories.

41  The Åland Islands are part of Finland, but they have a special autonomous status. The provisions of the protocol relating to them (Protocol No. 2 of the Fourth Treaty of Accession, 1994) do not prevent the Regulation from applying to them.

42  European Council Decision of 29 October 2010, amending the status with regard to the European Union of the island of Saint-Barthélemy, OJ 2012, L 325/4

43  European Council Decision of 11 July 2012, amending the status of Mayotte with regard to the European Union, OJ 2012, L 204/131. This applied from 1 January 2014. It resulted from the fact that Mayotte gained the status ‘département’ (department) on 31 March 2011.

44  Ceuta and Melilla, which are geographically in North Africa, are, under the Spanish Constitution, an integral part of Spain; so they too are covered.

45  By reason of Article 355(3) TFEU. However, Brussels 2012 does not apply between Gibraltar and the United Kingdom: see para. 2.42, below.

46  Article 355(5)(c) TFEU. The status of the Channel Islands and the Isle of Man is laid down in Protocol No. 3 to the United Kingdom Act of Accession of 22 January 1972 (Cmnd. 4862—I, p. 82). The rules in the Protocol are concerned mainly with trade, and do not entail the application of the Brussels Regulation.

47  Article 355(5)(b) TFEU. The status of these sovereign base areas is laid down in a Protocol to the fifth Treaty of Accession, 16 April 2003. It does not entail the application of the Brussels Regulation.

48  Article 355(5)(a) TFEU. The Faeroe Islands are linked to Denmark. Denmark does not appear to have made a declaration with regard to them.

49  Greenland is a territory linked to Denmark with internal self-government. Article 60 (first paragraph) of the version of the Brussels Convention signed by the United Kingdom on 9 October 1978, stated that the Convention applied to Greenland. However, in 1982, a referendum was held in Greenland in which a majority voted to leave the European Union (then the Community). Greenland left in 1985: see Weiss, ‘Greenland’s Withdrawal from the European Communities’ (1985) 10 ELRev. 173. So, when Denmark ratified the Brussels Convention in 1986, it declared that the Convention would not extend to Greenland: Gaudemet-Tallon, op. cit. supra, pp. 52–3. Since Greenland is not part of the European Union, the Regulation does not apply to it. Geographically, it is regarded as being part of America, not Europe.

50  This is not part of a Member State.

51  Ibid.

52  Ibid.

53  Ibid.

54  See Apostolides v. Orams, Case C-420/07, ECLI:EU:C:2009:271, [2009] ECR I-3571 (Grand Chamber).

55  See, generally, Gaudemet-Tallon, pp. 51–6.

56  At the time of the adoption of the 2007 Lugano Convention, the relevant provision was Article 300(7) TEC.

57  At the time, the relevant provision was Article 299 TEC.

58  Article 70(1)(b) of Lugano 2007.

59  There was a similar provision in Brussels 2000: Article 68(1).

60  See the Lugano case, Opinion 1/03, ECLI:EU:C:2006:81, [2006] ECR I-1145, at paragraph 15 of the judgment, where the CJEU says the Brussels Convention applied, in the case of France, to the French overseas territories and Mayotte and, in the case of the Netherlands, to Aruba. Since the judgment, Mayotte has been transferred to Brussels 2012: see European Council Decision of 11 July 2012, amending the status of Mayotte with regard to the European Union, OJ 2012, L 204/131. The CJEU went on to say that the other Member States were not concerned. So it seems that none of their territories is affected.

61  Convention of 9 October 1978, OJ 1978 L 304/36.

62  Convention of 26 May 1989, OJ 1989 L 285/1.

63  OJ 1990 C 189/57 at pp. 85–6 (paragraphs 91 et seq.).

64  Paragraph 91.

65  Aust, Chapter 11.

66  Paragraph 96.

67  There was a similar provision in Recital 23 to Brussels 2000.

68  Parts of it may continue to apply as between the United Kingdom and Gibraltar by virtue of UK law: see para. 2.43, below.

69  Aust, Chapter 11.

70  These are Titles I–V; Articles 54 and 57; and Article 65 and the Protocol referred to therein.

71  Article 3.

72  Kleinwort Benson v. City of Glasgow District Council, Case C-346/93, ECLI:EU:C:1995:85, [1995] ECR I-615.

73  Casagrande v. Munich, Case C-9/74, ECLI:EU:C:1974:74, [1974] ECR 773.

74  This seems to be the case for the Unites States: Missouri v. Holland, 252 US 416 (1920) (US Supreme Court). However, the position is not entirely uncontroversial.

75  To a certain extent, this is the case in the United States: see Foster and Elam v. Neilson, 27 US (2 Pet.) 253 (US Supreme Court, 1829) and subsequent decisions.

76  Attorney General for Canada v. Attorney General for Ontario (Labour Conventions case), [1937] AC 326 (PC).

77  See para. 2.26, above.

78  See Foundations, pp. 240–3. The problem of Denmark was solved by excluding Denmark from the meaning of ‘European Union’ (then ‘European Community’) in the Declaration under Article 30 of the Convention when the Union signed the Convention on 1 April 2009.

79  See the heading ‘Res/D/N’ (Reservations, declarations, or notifications).

81  International law also determines the obligations of the European Union towards the other Parties to Lugano and Hague.