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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, 5 Subject-Matter Scope: Specific Exclusions

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):
Subject-matter scope — Specific exclusions — 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. 57) Subject-Matter Scope:

Specific Exclusions

5.01  We now consider matters specifically excluded from the scope of the instruments. Each of the instruments contains a list of subjects—for example, status of natural persons—that are excluded from its scope.1 It should be emphasized at the outset that, under Brussels, and almost certainly under Lugano and Hague as well, these legal concepts—like the general concept of ‘civil and commercial matter’ discussed in the previous chapter—have an autonomous meaning.2 They are not interpreted according to national (p. 58) law. If this were not so, the scope of the instrument would vary from State to State.

5.02  Each instrument has its own list of exclusions. Brussels 2012 and Lugano 2007 are very similar; we start with them.

Brussels 2012

5.03  Article 1(2) of Brussels 2012 states that the Regulation does not apply to:

  1. (a)  the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;

  2. (b)  bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

  3. (c)  social security;

  4. (d)  arbitration;

  5. (e)  maintenance obligations arising from a family relationship, parentage, marriage or affinity;

  6. (f)  wills and succession, including maintenance obligations arising by reason of death.

Although this provision is slightly different from the corresponding provision in Brussels 2000, the changes are largely technical. In so far as they are not, they probably do no more than make explicit what was previously implicit.3

Lugano

5.04  Article 1(2) of Lugano provides that the Convention does not apply to:

  1. (a)  the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

  2. (b)  bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

  3. (c)  social security;

  4. (d)  arbitration.

(p. 59) 5.05  The only significant difference between this list and that for Brussels 2012 is that the Lugano Convention applies to maintenance while Brussels 2012 does not.4

5.06  The position is more complicated as regards Hague. All the matters excluded from the other two instruments are also excluded from Hague, but a considerable number of other matters are excluded as well. For this reason, we will first take the matters specifically excluded from Brussels 2012 and deal with them in relation to all three instruments. Then we will go on to Hague and consider the other matters excluded from that instrument.

Status or Legal Capacity of Natural Persons

5.07  This exclusion is found in Article 1(2)(a) of Brussels 2012 and of Lugano, and in Article 2(2)(a) of Hague. It covers matters such divorce and annulment of marriage (including same-sex marriage),5 rights of custody and access regarding children,6 guardianship of adults,7 and legitimacy.8 However, it covers these matters only if they constitute what French lawyers call the objet of the proceedings: what the claimant wants to obtain from the court. If the claimant wants to obtain a declaration, binding as regards the entirety of a person’s legal affairs, that that person lacks legal capacity, legal capacity will constitute the objet of the proceedings, and the case will fall outside the subject-matter scope of the Regulation. If, on the other hand, he wants the court to declare that a particular contract is invalid because a party lacked capacity, the objet of the proceedings will be the validity of the contract, and the action will be covered by the Regulation.9

(p. 60) Rights in Property Arising out of a Matrimonial Relationship

5.08  This exclusion is found in Article 1(2)(a) of Brussels 2012 and of Lugano, and in Article 2(2)(c) of Hague.10 It covers what Continental lawyers usually call ‘matrimonial property’ and US lawyers ‘marital property’.11 In Brussels 2012, the words ‘a relationship deemed by the law applicable to such relationship to have comparable effects to marriage’ make clear that the exclusion would also apply to the matrimonial-property aspects of a civil partnership, including a homosexual one. The Hague Convention contains words to the same effect: ‘other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships’. There is no similar provision in Lugano but it is probably implicit.12

Wills and Succession

5.09  This exclusion is found in Article 1(2)(f) of Brussels 2012, Article 1(2)(a) of Lugano, and Article 2(2)(d) of Hague. It includes intestate succession as well as wills. It also covers the administration of the estates of deceased persons.13 The European Union has now adopted a separate instrument (not applicable in the United Kingdom) which deals with these matters, the Succession Regulation.14 In interpreting the provisions of Brussels 2012 (p. 61) on its subject-matter scope, the CJEU will have regard to the corresponding provisions of the Succession Regulation in order to ensure that there are no gaps or overlaps.

5.10  Brussels 2012 makes clear that this exclusion covers maintenance obligations arising by reason of death. Though not expressly stated, the same must be true under Hague, since ‘maintenance obligations’ and ‘wills and succession’ are both excluded. The position is not clear under Lugano 2007, since maintenance is not excluded but wills and succession are.

Bankruptcy

5.11  ‘Bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ are excluded from the scope of Brussels 2012 and Lugano 2007 by Article 1(2)(b) of each instrument. In the Hague Convention, Article 2(2)(e) provides for the exclusion of ‘insolvency, composition and analogous matters’. This would seem to mean the same thing.

5.12  Although this exclusion covers the winding-up of insolvent companies, it does not cover the winding-up of companies that are not insolvent.15 Under Brussels 2012 and Lugano, this would be covered by the rules on exclusive jurisdiction;16 under the Hague Convention, it would fall under the exclusion in Article 2(2)(m).

5.13  In Gourdain v. Nadler,17 the CJEU said that, in order to come within the terms of the exclusion, two requirements had to be fulfilled: first, the court proceedings had to derive directly from the bankruptcy and, secondly, they had to be closely connected with it.18 Gourdain v. Nadler concerned an order by a French court that the manager of an insolvent company had to make a personal contribution to the funds available to creditors. When proceedings were brought to enforce this in Germany, the question arose whether it came within the subject-matter scope of the Regulation (then the Brussels Convention). Under French law, the application for such an order could be made only to the court which had made the insolvency order, and it could be made only by the insolvency administrator (or by the court of its own motion). The CJEU held that the order came within the terms of the exclusion.

5.14  In the European Union, there is a separate measure, the Insolvency Regulation,19 which applies (with certain exceptions) to ‘collective insolvency proceedings which entail the partial or total divestment of a debtor (p. 62) and the appointment of a liquidator’.20 According to Recital 6 of the Insolvency Regulation, that Regulation applies only to legal proceedings and judgments which are brought or delivered directly on the basis of the insolvency proceedings and are closely connected with them. This formula appears to have been derived from that laid down by the CJEU in Gourdain v. Nadler, an example of the EU policy of ensuring that different measures fit together without gaps or overlaps.

5.15  This is further illustrated by the decision of the CJEU in Seagon,21 a case in which a German company had made a payment to a Belgian company shortly before being declared insolvent. The German insolvency administrator wanted to order the Belgian company to repay the money, but it was argued that he had no jurisdiction to do so. The German Supreme Court (Bundesgerichtshof ) asked the CJEU whether the German courts had jurisdiction under either the Brussels Regulation or the Insolvency Regulation.22

5.16  After referring to its decision in Gourdain v. Nadler and to Recital 6 of the Insolvency Regulation, the CJEU held that since the proceedings were outside the scope of the Brussels Regulation by virtue of the formula in Gourdain v. Nadler, they had to be regarded as coming within the scope of the Insolvency Regulation. The German courts therefore had jurisdiction under the latter instrument.

5.17  If the action is based on the ordinary principles of civil law and could have been brought by or against the insolvent company before it became insolvent, it will not fall within the insolvency exclusion. The fact that it is brought after one of the parties has been declared insolvent does not affect this.

5.18  Thus an action by the insolvency administrator to recover a debt owed to the insolvent company is covered by Brussels,23 as is a claim for the recovery of goods sold, subject to a reservation-of-title clause, to the insolvent company prior to the insolvency.24

5.19  The cases discussed so far have clearly fallen on one side or the other of the line. Sometimes, however, borderline cases arise. In F-Tex,25 insolvency proceedings had been opened in Germany against a German company. The only creditor was F-Tex, a Latvian company. The German insolvency (p. 63) administrator assigned to F-Tex all claims that the insolvent company had against third parties, including the right to recover a payment made by the insolvent company to a Lithuanian company after the former had become insolvent.26 Acting under this assignment, F-Tex brought proceedings against the Lithuanian company in Lithuania. A Lithuanian court asked the CJEU whether those proceedings fell within the scope of the Brussels Regulation.

5.20  The CJEU pointed out that the applicant was not the insolvency administrator but the assignee of the insolvency administrator’s right to set the transaction aside (F-Tex). Moreover, the insolvency administrator’s right to set the transaction aside, and his power to assign that right, were not in dispute. The CJEU accepted that F-Tex’s claim before the Lithuanian courts was linked to the insolvency as it had its origin in the right of the insolvency administrator to set the transaction aside. However, it left open the question whether that link was severed by reason of the assignment. Instead, it focused on the second requirement under the formula in Gourdain v. Nadler, namely that the proceedings must be closely connected with the insolvency.

5.21  In this regard, it held that the exercise by F-Tex of the right assigned to it was not closely connected with the insolvency proceedings. Unlike the insolvency administrator, who is generally required to act in the interests of the creditors, the assignee can freely decide whether or not to exercise the right assigned. Moreover, the assignee acts in his own interest and for his personal benefit. If he is successful, the proceeds of the action belong to him personally.27 Furthermore, under German law the assignment remained valid and effective after the insolvency proceedings were terminated. For these reasons, the CJEU held that the claim before the Lithuanian courts was not covered by the Insolvency Regulation; consequently, it had to come within the scope of the Brussels Regulation.28

5.22  The CJEU has also held that a claim for damages by a creditor of the insolvent company against a director or shareholder of the insolvent company for loss suffered as a result of the insolvency is not excluded from the scope of Brussels.29

Social Security

5.23  This exclusion is found in Article 1(2)(c) of Brussels and of Lugano. According to the Jenard Report,30 the reason social security was expressly (p. 64) excluded is that, while it was regarded as a public-law matter in some of the original Contracting States to the Brussels Convention, it was regarded as being on the borderline in others. However, there can be no doubt that today a State-run scheme that was either non-contributory or was funded by compulsory contributions would fall under the Eurocontrol definition31 and would therefore be excluded because it was not a civil or commercial matter. Social security is not expressly mentioned in the Hague Convention; however, it would be excluded for the same reason.32 Under all three instruments, the position might be different in the case of contractual benefits based on voluntary contributions: these would probably not come under the Eurocontrol definition. Moreover, as we saw above,33 the equivalent exclusion in the Brussels Convention was held not to preclude the application of the Convention to proceedings brought by a social-welfare authority to reclaim from a father money paid by the authority to a daughter whom the father was obliged to support.34 The same would be true under Brussels 2012 and probably under Lugano.

Arbitration

5.24  This is excluded by Article 1(2)(d) of Brussels 2012 and of Lugano and by Article 2(4) of Hague. It is excluded because it is governed by the New York Convention of 1958.35 This topic is so important that it will be discussed in a separate chapter.36

Maintenance

5.25  Maintenance obligations arising from a family relationship, parentage, marriage, or affinity are excluded by Article 1(2)(e) of Brussels 2012. Maintenance is also excluded by Article 1(2)(b) of Hague.37 It is covered by the Lugano Convention. It was covered by the Brussels Convention and by the original text of Brussels 2000, but was excluded from that Regulation once a separate measure, the Maintenance Regulation,38 came (p. 65) into force. The distinction between maintenance and matrimonial property is not always easy to draw. This does not matter under Brussels 2012 and Hague because the latter is also excluded. However, it was important under the old Brussels Convention and is still important under the Lugano Convention. The leading case under the Brussels Convention was Van den Boogaard v. Laumen.39 Under the test laid down in this case, an order for a one-off payment is not necessarily to be characterized as matrimonial property: it can constitute maintenance if this was its purpose. If the award is to enable one spouse to provide for herself or himself, or if the needs and resources of both spouses are taken into account, the award will constitute maintenance; otherwise, it will constitute matrimonial property.

Hague

5.26  We now give specific consideration to the matters which are excluded from Hague.

5.27  Article 2(1) of Hague provides that the Convention does not apply to choice-of-court agreements:

  1. (a)  to which a natural person acting primarily for personal, family or household purposes (a consumer) is a party;

  2. (b)  relating to contracts of employment, including collective agreements.

5.28  Article 2(2) of Hague provides that the Convention does not apply to the following matters:

  1. (a)  the status and legal capacity of natural persons;

  2. (b)  maintenance obligations;

  3. (c)  other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships;

  4. (d)  wills and succession;

  5. (e)  insolvency, composition and analogous matters;

  6. (f)  the carriage of passengers and goods;

  7. (g)  marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage;

  8. (h)  anti-trust (competition) matters;

  9. (i)  liability for nuclear damage;

  10. (j)  claims for personal injury brought by or on behalf of natural persons;

  11. (k)  tort or delict claims for damage to tangible property that do not arise from a contractual relationship;

  12. (l)  rights in rem in immovable property, and tenancies of immovable property;

  13. (m)  the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs;

  14. (p. 66) (n)  the validity of intellectual property rights other than copyright and related rights;

  15. (o)  infringement of intellectual property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract;

  16. (p)  the validity of entries in public registers.

Two points should be made about this list. First, it is obviously much longer. Secondly, it is divided into two parts: the first part excludes two kinds of agreements;40 the second excludes various matters.41 The two kinds of agreements excluded—consumer and employment contracts—though not excluded by Brussels 2012 and Lugano, are subject to special treatment, under which choice-of-court agreements are valid only in limited circumstances.42 Moreover, certain matters excluded in the second part of the Hague Convention list are, in the other instruments, subject to rules on exclusive jurisdiction under which choice-of-court agreements are excluded.43 For these reasons, the differences are less significant than might appear.

5.29  Items (a) to (e) of Article 2(2) are also excluded from Brussels 2012. These were discussed previously.44 We will now consider the remaining matters excluded.

Consumer Contracts

5.30  Consumer contracts are outside the scope of the Hague Convention. They are within the scope of Brussels 2012 and Lugano, but are subject to special rules which, to a large extent, exclude choice-of-court agreements. These rules are considered in Chapter 11.

Contracts of Employment

5.31  The position here is similar. Employment contracts are outside the scope of the Hague Convention. They are within the scope of Brussels 2012 and Lugano, but are subject to special rules which, to a large extent, exclude choice-of-court agreements. These rules are considered in Chapter 11.

Carriage of Persons and Goods

5.32  This covers carriage by land (including road and rail), sea (and inland waterways), and air. It was excluded because many countries feel that the (p. 67) carrier is able to impose a standard-form contract on the other person and that the choice-of-court agreement may specify a country unfavourable to the latter.45

Maritime Matters

5.33  Article 2(2)(g) excludes marine pollution, limitation of liability for maritime claims, general average, and emergency towage and salvage. Other maritime matters—for example, marine insurance, non-emergency towage and salvage, shipbuilding, ship mortgages, and maritime liens—are included.46

Competition (Antitrust) Matters

5.34  Owing to differences in economic policy, competition law can be controversial.47 Many aspects of it—for example, proceedings by a State or other public authority resulting in a fine or injunction—would not fall within the general concept of civil or commercial matters. However, a tort action brought by one private party against another—perhaps for treble damages under the American Sherman Act—probably would.48 For this reason, it was decided to exclude competition law by a specific provision.49

5.35  The exclusion applies, however, only if the main subject matter of the proceedings—its purpose or objective—is a matter of competition law. The exclusion does not apply if a defence or incidental question relates to competition law. Assume, for example, that A sues B for breach of contract. B may claim that the contract is invalid because it violates a rule of competition law. Here, the subject matter of the proceedings is a claim for breach of contract and the competition issue is only an incidental question; so the proceedings are not excluded from the scope of the Convention.50

Liability for Nuclear Damage

5.36  This is also a controversial question in which different legal regimes apply in different countries, sometimes involving limitations on liability (p. 68) and sometimes payment of compensation out of public funds.51 It was excluded for these reasons.

Personal Injury

5.37  Article 2(2)(j) of the Convention excludes claims for personal injury brought by or on behalf of natural persons.52 It is not clear why a request was made for their exclusion. However, a choice-of-court agreement is unlikely to apply to them. The only exception is an employment contract, but such contracts are outside the scope of the Hague Convention by virtue of Article 2(1)(b), discussed in para. 5.31, above.

Damage to Property

5.38  Article 2(2)(k) of the Convention excludes ‘tort or delict53 claims for damage to tangible property that do not arise from a contractual relationship’. Again, it is not known why a request was made to exclude such claims but, as the exclusion does not apply to claims that arise from a contractual relationship, it is unlikely to be covered by a choice-of-court agreement.54

Matters Subject to Exclusive Jurisdiction

5.39  We now come to a group of matters which are subject to rules of exclusive jurisdiction under Brussels and Lugano.55 These rules leave no room for choice-of-court agreements: an agreement which purports to give jurisdiction to the courts of another State would be invalid.56 For this reason they were excluded from the scope of the Hague Convention. The matters in question are:

  • •  rights in rem in immovable property, and tenancies of immovable property;57

  • •  the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs;58

  • (p. 69) •  the validity of intellectual-property rights other than copyright and related rights;59

  • •  the validity of entries in public registers.60

Since the drafting of these provisions in Hague was based on that in Brussels and Lugano, what is said regarding the latter in Chapter 12 is largely applicable to the corresponding provisions of Hague.

Infringement of Intellectual-Property Rights

5.40  Article 2(2)(o) of Hague excludes ‘infringement of intellectual-property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract’. This provision has no equivalent in Brussels and Lugano and it is necessary to consider it in greater detail.

5.41  It should first be noted that the exclusion does not apply to the infringement of copyright and related rights. Proceedings for the infringement of these rights are fully covered by Hague.

5.42  Even in the case of other intellectual-property rights, infringement proceedings are covered if the infringement constituted a breach of contract. For this exception to apply, there must be a contract between the parties, under which one of them agrees not to infringe a specified intellectual-property right. If he does infringe the right, the other party may sue him for breach of contract. Since he could have sued for breach of contract, the exception also applies if the claim is brought in tort.

5.43  The reason this exception was adopted was to make choice-of-court clauses in intellectual-property licensing agreements more effective. An intellectual-property licensing agreement is a contract under which the holder of an intellectual-property right licenses another person to do things which would otherwise constitute infringements of the right. This is normally done in return for the payment of royalties. It is usually subject to various terms and conditions, concerning the territory within which the licence applies and the way in which the right may be used—in the case of a trade mark, for example, the licensee may be required to use it only on products of high quality.

5.44  If the licensee fails to abide by these terms and conditions, he may lose the protection of the licence. Then his actions will constitute an infringement (p. 70) of the right. So the licensor could sue him either in contract (for breach of the licensing agreement) or in tort (for infringement). In either case, the action will be covered by any choice-of-court agreement contained in the contract: if it is in contract, it will fall under the first part of the contractual exception and, if it is brought in tort, it will fall under the second part, since it could have been brought in contract. The reason this second possibility was included was that in some countries—for example, the United States—there are various procedural and other advantages—for example, higher damages and more generous awards of costs—that apply when the action is in tort.

Declarations under the Hague Convention

5.45  Under Article 21 of the Hague Convention, it is possible for a Contracting State to make a declaration that a particular matter will—as far as it is concerned—fall outside the scope of the Convention. If a case concerns that matter, its courts will not have to decline jurisdiction if there is a choice-of-court agreement in favour of the courts of another Contracting State, nor will they have to assume jurisdiction if the agreement designates them. In addition, they will not have to recognize judgments on that matter from the courts of other Contracting States.

5.46  However, there is a price to pay. The courts of other Contracting States will treat that particular matter as outside the scope of the Convention if the choice-of-court agreement designates the courts of the Contracting State making the declaration. If a case concerns that matter, they will not have to decline jurisdiction by reason of the Convention, nor will they have to recognize judgments from the State making the declaration.

To discover which declarations have been made under Article 21, one should consult the Status Table for the Convention61 on the website of the Hague Conference, http://www.hcch.net. One can either navigate from this, or go directly to the Status Table for the Choice-of-Court Convention.62

5.47  When it ratified the Convention, the European Union made the following declaration:63

The objective of this declaration which excludes certain types of insurance contracts from the scope of the Convention is to protect certain policyholders, insured parties and beneficiaries who, according to internal EU law, receive special protection.

  1. 1.  The European Union declares, in accordance with Article 21 of the Convention, that it will not apply the Convention to insurance contracts, except as provided for in paragraph 2 below.

  2. (p. 71) 2.  The European Union will apply the Convention to insurance contracts in the following cases:

    1. (a)  where the contract is a reinsurance contract;

    2. (b)  where the choice of court agreement is entered into after the dispute has arisen;

    3. (c)  where, without prejudice to Article 1(2) of the Convention, the choice of court agreement is concluded between a policyholder and an insurer, both of whom are, at the time of the conclusion of the contract of insurance, domiciled or habitually resident in the same Contracting State, and that agreement has the effect of conferring jurisdiction on the courts of that State, even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State;

    4. (d)  where the choice of court agreement relates to a contract of insurance which covers one or more of the following risks considered to be large risks:

      1. (i)  any loss or damage arising from perils which relate to their use for commercial purposes, of, or to:

        1. (a)  seagoing ships, installations situated offshore or on the high seas or river, canal and lake vessels;

        2. (b)  aircraft;

        3. (c)  railway rolling stock;

      2. (ii)  any loss of or damage to goods in transit or baggage other than passengers’ baggage, irrespective of the form of transport;

      3. (iii)  any liability, other than for bodily injury to passengers or loss of or damage to their baggage, arising out of the use or operation of:

        1. (a)  ships, installations or vessels as referred to in point (i)(a);

        2. (b)  aircraft, in so far as the law of the Contracting State in which such aircraft are registered does not prohibit choice of court agreements regarding the insurance of such risks;

        3. (c)  railway rolling stock;

      4. (iv)  any liability, other than for bodily injury to passengers or loss of or damage to their baggage, for loss or damage caused by goods in transit or baggage as referred to in point (ii);

      5. (v)  any financial loss connected with the use or operation of ships, installations, vessels, aircraft or railway rolling stock as referred to in point (i), in particular loss of freight or charter-hire;

      6. (vi)  any risk or interest connected with any of the risks referred to in points (i) to (v);

      7. (vii)  any credit risk or suretyship risk where the policy holder is engaged professionally in an industrial or commercial activity or in one of the liberal professions and the risk relates to such activity;

      8. (viii)  any other risks where the policy holder carries on a business of a size which exceeds the limits of at least two of the following criteria:

        1. (a)  a balance-sheet total of EUR 6,2 million;

        2. (b)  a net turnover of EUR 12,8 million;

        3. (c)  an average number of 250 employees during the financial year.

(p. 72) 5.48  The reason the European Union made this declaration is that insurance is subject to a special regime in Brussels 2012.64 Under Article 15 of Brussels 2012, insurance contracts are treated in the same way as consumer contracts and employment contracts: choice-of-court agreements are not permitted unless they are concluded after the dispute has arisen or in certain other cases where they would not produce unfair results. It is thought that insurance companies would otherwise use their economic power to designate the courts of a country in which it would be difficult or disadvantageous for the policyholder to bring proceedings. The view was taken that such protection is needed not only in the case of insurance contracts concluded by consumers, but also in the case of contracts concluded by small businesses. The purpose of the declaration was to ensure that the protection granted by Brussels would not be undermined by Hague.

5.49  Under the original draft of the declaration, it was proposed to exclude insurance only if the policyholder was domiciled in the European Union. However, this would have been contrary to Article 21 of Hague, which permits exclusions only with regard to ‘specific matters’, which means that a declaration under Article 21 cannot use any criterion other than subject matter.65 If this were not the rule, a Contracting State could obtain an unfair advantage by excluding a given matter in situations in which it would be against its interests to uphold a choice-of-court agreement, but not excluding it when the choice-of-court agreement would work to its advantage. Other Contracting States could hardly be expected to accept this.

5.50  In its final version, paragraph 1 of the declaration excludes insurance in general, except as provided for in paragraph 2. Paragraph 2 then specifies the matters which are excluded from the exclusion—in other words, which are covered by the Convention. These will be briefly considered.

5.51  Reinsurance contracts are excluded from the exclusion under paragraph 2(a) of the declaration. Although Brussels 2012 contains no express provision, the special provisions on insurance do not apply to reinsurance. The Schlosser Report states, ‘Reinsurance contracts cannot be equated with insurance contracts. Accordingly, Articles 7 to 1266 do not apply to reinsurance contracts.’67 This view is justifiable from a policy point of view: since these are contracts in which both parties are insurance companies, there is no need to give special protection to either of them.

(p. 73) 5.52  Choice-of-court agreements entered into after the dispute has arisen are excluded from the exclusion under paragraph 2(b) of the declaration. Such agreements are not subject to the special rules in Brussels 2012.68

5.53  Choice-of-court agreements covered by paragraph 2(c) of the declaration are excluded from the exclusion because there is a similar provision in Brussels 2012.69

5.54  Insurance covering ‘large risks’ is excluded from the exclusion under paragraph 2(d) of the declaration because it is thought that special protection is unnecessary in such cases. Such contracts are also excluded from the special rules in Brussels 2012.70 The definition of ‘large risks’ is complicated but it is based on the definition in Article 16 of Brussels 2012, read with the definition in Directive 2009/138/EC.71

Preliminary Questions

5.55  A preliminary (or incidental) question is a question which is not the main question before the court, but which has to be decided in order to decide the main question. Assume, for example, that X enters into a contract to sell goods to Y and that Z guarantees that Y will pay. Y defaults and X sues Z. Assume further that the validity of the guarantee under the applicable law depends on whether Z was married to Y. In the proceedings, Z argues that she was married to Y and that the guarantee is invalid. X replies that the marriage was void. Here the principal issue is the validity of the guarantee. The validity of the marriage is a preliminary question. It is a question which, while not the main object of the proceedings, has to be decided in order to decide the main object.

5.56  In all three instruments, the position is that if the principal question is within the subject-matter scope of the instrument, the proceedings will not be excluded from its scope just because there is an incidental question that falls outside its scope. In the example above, the court can decide the case—if necessary, after determining the validity of the marriage—even though the latter question is outside the scope of the instrument.

5.57  In the case of the Hague Convention, this is made clear by Article 2(3), which states:

Notwithstanding paragraph 2,72 proceedings are not excluded from the scope of this Convention where a matter excluded under that paragraph arises merely as (p. 74) a preliminary question and not as an object of the proceedings. In particular, the mere fact that a matter excluded under paragraph 2 arises by way of defence does not exclude proceedings from the Convention, if that matter is not an object of the proceedings.

5.58  There is no similar provision in the other instruments, but this is because it was regarded as unnecessary.73

5.59  In the Brussels Convention, there was a provision74 stating that a judgment given in one Contracting State would not be recognized in another Contracting State if, in order to arrive at it, the court of origin had decided a preliminary question regarding certain specified matters outside the scope of the Convention.75 However, this applied only if it decided the matter in a way that conflicted with a rule of private international law of the State addressed,76 and then only if the result would have been different. However, this provision was not carried over into Brussels 2000 or 2012. There was a similar provision in Lugano 1988,77 but this too was omitted from Lugano 2007.

5.60  On the other hand, there is a provision of this kind in Article 10 of Hague. Article 10(1) of Hague provides that, where a matter outside the subject-matter scope of the Convention arose as a preliminary question, the ruling on that question (the preliminary question) will not be recognized under the Convention. This is obvious, and the same would be true under Brussels 2012 and Lugano.

5.61  However, Article 10(2) of Hague goes further and provides that the ruling on the main issue is not required to be recognized if, and to the extent that, it was based on a ruling on a preliminary matter excluded from the subject-matter scope of the Convention under Article 2(2).78 It should be noted that this gives the court addressed a discretion to refuse recognition: it is not required to refuse recognition. It should also be noted that this provision applies only to the extent that the judgment was based on the ruling on the preliminary question.

(p. 75) 5.62  Article 10(2) is itself subject to an exception with regard to rulings on the validity of an intellectual-property right other than copyright or related rights. Article 10(3) provides that, in the case of a ruling on the validity of an intellectual-property right other than copyright or a related right, recognition or enforcement of a judgment may be refused or postponed under Article 10(2) only where either (a) the ruling is inconsistent with a judgment (or a decision of a competent authority) on that matter given in the State under the law of which the intellectual-property right arose (normally the State of registration);79 or (b) proceedings concerning the validity of the intellectual-property right are pending in that State.80(p. 76)

Footnotes:

1  For items relevant to this chapter in general, see Jenard Report, pp. 10–13; Schlosser Report, paragraphs 30–65 (pp. 84–93); Hartley/Dogauchi Report, paragraphs 50–92.

2  Gourdain v. Nadler, Case C-133/78, ECLI:EU:C:1979:49, [1979] ECR 733 at paragraph 3 of the judgment. For a recent affirmation of the principle, see Schneider, Case C-386/12, ECLI:EU:C:2013:633 at paragraphs 18 and 19 of the judgment.

3  The differences are, first, that it is made clear that ‘matrimonial relationship’ covers ‘a relationship deemed by the law applicable to such relationship to have comparable effects to marriage’ (for example, a civil partnership); secondly, that the reference to ‘wills and succession’ in subparagraph (a) of the 2000 Regulation has been moved to subparagraph (f), where the words ‘including maintenance obligations arising by reason of death’ are added; and thirdly, that the phrase save as provided for in Articles 29(4) and 33(3) has been removed from subparagraph (d).

4  Maintenance was originally covered by the Brussels Regulation of 2000, but was subsequently excluded through an amendment because it is now covered by the Maintenance Regulation, Regulation 4/2009 on jurisdiction, applicable law, recognition, and enforcement of decisions and co-operation in matters relating to maintenance obligations, OJ 2008, L 7/1: see Article 68(1) of the Maintenance Regulation.

5  Divorce, legal separation, and annulment are covered by Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, OJ 2003, L 338/1. In interpreting the provisions of Brussels 2012, the CJEU will have regard to the corresponding provisions of this instrument in order to ensure consistency.

6  Bohez, Case C-4/14, ECLI:EU:C:2015:563.

7  Schneider, Case C-386/12, ECLI:EU:C:2013:633.

8  For a discussion of the EU regime on family law, see Harding, ‘Harmonisation of Private International Law in Europe: Taking the Character out of Family Law?’ (2011) 7 JPIL 203.

9  Schmidt, Case C-417/15, ECLI:EU:C:2016:881, at paragraphs 24–25 of the judgment; the Opinion of Advocate General Kokott, ECLI:EU:C:2016:535 at paragraphs 27–32 (referred to in the CJEU’s judgment at paragraph 25), is especially helpful.

10  The EU Commission has proposed two regulations to deal with these matters: see the proposal for a Council Regulation on jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2016) 106, and the proposal for a Council Regulation on jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, COM(2016) 107. These proposals were originally put forward in 2011, but it proved impossible to secure their adoption. It is now proposed to go ahead on the basis of ‘enhanced co-operation’, a procedure which will allow a limited number of Member States—it seems that seventeen are interested—to go ahead on their own. See the Commission Proposal for a Council Decision authorizing enhanced co-operation in the area of jurisdiction, applicable law, and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships, COM(2016) 108. The United Kingdom will not be involved.

11  On the distinction between matrimonial property and maintenance (no longer important under Brussels 2012, but still significant under Lugano 2007), see para. 5.25, below. For some early cases on matrimonial property, see De Cavel, Case C-143/78, ECLI:EU:C:1979:83, [1979] ECR 1055; De Cavel, Case C-120/79, ECLI:EU:C:1980:70, [1980] ECR 731; CHW v. GJH, Case C-25/81, ECLI:EU:C:1982:116, [1982] ECR 1189.

12  For further details, see Gaudemet-Tallon, pp. 40–4.

13  For an early case, see CHW v. GJH, Case C-25/81, ECLI:EU:C:1982:116, [1982] ECR 1189.

14  Regulation 650/2012 OJ 2012, L 201/107. It deals with jurisdiction, applicable law, recognition, and enforcement of decisions with regard to succession.

15  For the Hague Convention, see the Hartley/Dogauchi Report, paragraph 56.

16  See paras 12.24 et seq., below.

17  Case C-133/78, ECLI:EU:C:1979:49, [1979] ECR 733.

18  At paragraph 4 of the judgment.

19  Council Regulation 1346/2000, OJ 2000, L 160/1.

20  Council Regulation 1346/2000, Article 1(1).

21  Case C-339/07, ECLI:EU:C:2009:83, [2009] ECR I-767. See also SCT Industri, Case C-111/08, ECLI:EU:C:2009:419, [2009] ECR I-5655, a case concerning an order by the insolvency administrator for the disposal of assets of the insolvent company.

22  See, further, Schmid, Case C-328/12, ECLI:EU:C:2014:6, a case which applied the same principle to a case where the defendant was domiciled in a non-member State, and H v. HK, Case C-295/13, ECLI:EU:C:2014:2410 (defendant also domiciled in a non-member State).

23  Nickel & Goeldner Spedition, Case C-157/13, ECLI:EU:C:2014:2145.

24  German Graphics Graphische Maschinen, Case C-292/08, EU:C:2009:544, [2009] ECR I-8421.

25  Case C-213/10, ECLI:EU:C:2012:215.

26  This was on the understanding that if F-Tex succeeded in recovering any of the claims, it would hand over 33 per cent of the proceeds to the insolvency administrator.

27  The CJEU did not consider that this was affected by the fact that F-Tex was required to pay a percentage to the insolvency administrator.

28  At paragraph 48 of the judgment.

29  ÖFAB, Case C-147/12, ECLI:EU:C:2013:490; OTP Bank, Case C-519/12, ECLI:EU:C:2013:674.

30  OJ 1979, C 59/1 at pp. 12–13.

31  See paras 4.18–4.21, above.

32  It was expressly excluded from the Hague Preliminary Draft Convention: see the Nygh/Pocar Report on the Hague Preliminary Draft Convention 2000, paragraph 40 (reproduced in Hartley, Choice-of-Court Agreements, p. 474).

33  Paras 4.24–4.28.

34  Baten, Case C-271/00, [2002] ECR I-10489. In that case, the CJEU expressly said that the proceedings were not covered by the exclusion regarding social security: paragraph 49 of the judgment. See also the Jenard Report (above) at p. 13.

35  Article 84(2) of Brussels 2012 states that the Regulation does not affect the application of the New York Convention.

36  Chapter 24, below.

37  ‘Other family law matters’ are excluded by Article 1(2)c.

38  Regulation 4/2009 EC OJ 2008 L 7, p. 1.

39  Case C-220/95, ECLI:EU:C:1997:91, [1997] ECR I-1147; [1997] QB 759.

40  Article 2(1).

41  Article 2(2).

42  See below, paras 11.15–11.17 (general); paras 11.114–11.118 (consumers); para. 11.147 (employment).

43  See Chapter 12.

44  Paras 5.1–5.25.

45  According to the Hartley/Dogauchi Report (paragraph 58), it was desired not to interfere with other international conventions on these matters.

46  Hartley/Dogauchi Report, paragraph 59. For an extremely informative discussion of maritime matters in this context, see Forrest, ‘The Hague Convention on Choice of Court Agreements: The Maritime Exceptions’ (2009) 5 JPIL 491.

47  See in general Hartley/Dogauchi Report, paragraphs 60–63.

48  In the European Union, actions in tort for violation of competition law appear to fall within the scope of the Brussels Regulation: Gaudemet-Tallon, pp. 35–6 and items cited ibid. n. 2.

49  The exclusion does not cover unfair competition—for example, passing off: Hartley/Dogauchi Report, paragraph 60.

50  Hartley/Dogauchi Report, paragraph 63. See further Article 2(3) of the Hague Convention, discussed in paras 5.56–5.59, below.

51  See the Hartley/Dogauchi Report, paragraph 64.

52  Natural persons are human beings, not corporations.

53  Delict is the civil-law word for tort.

54  For further discussion on what this covers, see paragraph 65 of the Hartley/Dogauchi Report.

55  Brussels 2012, Article 24; Lugano 2007, Article 22. These rules are discussed in Chapter 12, below.

56  Brussels 2012, Article 25(4); Lugano 2007, Article 23(5).

57  Article 2(2)(l) of the Hague Convention. The corresponding provision under Brussels 2012 is Article 24(1). This, however, has an exception regarding temporary tenancies, an exception not found in Hague. Article 22(1) of Lugano 2007 is the same as Article 24(1) of Brussels 2012.

58  Article 2(2)(m) of the Hague Convention. This is in substance the same as Brussels 2012, Article 24(2) and Lugano 2007, Article 22(2).

59  Article 2(2)(n) of the Hague Convention. Brussels 2012, Article 24(4), refers to ‘patents, trade marks, designs, or other similar rights required to be deposited or registered’ while Hague covers ‘intellectual property rights other than copyright and related rights’. However, the main unregistered rights are copyright and related rights; so the difference is not very significant.

60  Article 2(2)(p) of the Hague Convention. The equivalent provision in Brussels 2012 is Article 24(3) and in Lugano 2007, Article 22(3).

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

63  Council Decision 2014/887/EU, OJ 2014, L 353/5, Annex I.

64  Brussels 2012, Articles 10–16.

65  Hartley/Dogauchi Report, paragraph 235.

66  Articles 7 to 12 are the provisions in the Brussels Convention laying down special rules for insurance contracts. They are equivalent to Articles 10–16 of Brussels 2012.

67  Schlosser Report, p. 117, paragraph 151.

68  Article 15(1) of Brussels 2012.

69  Article 15(3) of Brussels 2012. This provision applies only if the parties are domiciled or habitually resident in the same Member State. Paragraph 2(c) of the declaration extends this to parties who are domiciled or habitually resident in the same Contracting State. If this had not been done, the declaration would have been contrary to Article 21 of Hague.

70  Article 15(5) of Brussels 2012 read with Article 16.

71  OJ 2009, L 335/1.

72  Paragraph 2 of Article 2 is the provision listing the matters excluded from the scope of the Convention.

73  Jenard Report, p. 10. For the application of this principle in a slightly different context under Brussels 2000, see Berliner Verkehrsbetriebe (BVG) v. J P Morgan Chase Bank, Case C-144/10, ECLI:EU:C:2011:300, [2011] ECR I-3961, discussed in para. 12.28, below.

74  Article 27(4) of the Brussels Convention.

75  These were status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills, and succession.

76  This presumably means that the State of origin must have applied a different choice-of-law rule from that which would be applicable in the State addressed.

77  Article 27(4) of Lugano 1988.

78  Article 10(4) extends this to preliminary questions concerning matters subject to a declaration under Article 21.

79  The Convention uses the phrase the State under the law of which the intellectual property right arose, rather than the State of registration, to cover unregistered rights.

80  For the details, see Hartley, Choice-of-Court Agreements, pp. 306–7; Hartley/Dogauchi Report, paragraphs 197–200.