15

Nov

2015

Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters : presentation

gros horloge
What is the goal of the Regulation ?

The regulation lays down rules governing the jurisdiction of courts in civil and commercial matters.

The regulation does not cover revenue, customs or administrative matters. Nor does it apply to:

 
  • the status or legal capacity of natural persons, matrimonial matters, wills and succession;
  • bankruptcy;
  • social security;
  • arbitration.

In front of which jurisdiction do I have to sue my opponent under the Regulation ?

The basic principle is that jurisdiction is to be exercised by the EU country in which the defendant is domiciled, regardless of his/her nationality.

Domicile is determined in accordance with the domestic law of the EU country where the matter is brought before a court.

In the case of legal persons or firms, domicile is determined by the country where they have their statutory seat, central administration or principal place of business.

Apart from the basic principle on jurisdiction, in certain circumstances a defendant may be sued in the courts of another EU country. The regulation lists areas of jurisdiction where this is so: special or exclusive jurisdiction, as well as jurisdiction on matters relating to insurance, consumer contracts and individual contracts of employment.

What are these special or exclusive rules ?

The courts’ special jurisdiction includes the following:

 
  • matters relating to a contract: as a general rule, these will be dealt with by the courts for the place of performance of the obligation in question;
 
  • matters relating to maintenance: as a general rule, these are to be brought before the courts for the place where the maintenance creditor is resident;
 
  • matters relating to liability for wrongful acts - tort, delict or quasi-delict: these will be decided by the courts for the place where the harmful event occurred or may occur.

In matters relating to insurance :
 
  • an insurer may be sued in the courts of the EU country where s/he is domiciled or of the EU country where the plaintiff is domiciled if the actions are brought by the policy holder, the insured or a beneficiary.
 
  • in respect of liability insurance or insurance of immovable property, the insurer may, in addition, be sued in the courts for the place where the harmful event occurred.

The regulation also lays down rules on jurisdiction in matters relating to contracts concluded by consumers:
 
  • A consumer may bring proceedings either in the courts of the EU country in which the defendant is domiciled or in the courts for the place where the consumer (the plaintiff) is domiciled.
 
  • Proceedings may be brought against a consumer by the other party to the contract only in the courts of the EU country in which the consumer is domiciled.

In matters relating to individual contracts of employment:
 
  • employees may either sue their employer in the courts of the EU country where the employer is domiciled, or in the courts of the EU country where the employee habitually works.
The courts' exclusive jurisdiction includes the following:
 
  • rights in rem in immovable property or tenancies of immovable property: the courts of the EU country in which the property is situated;
 
  • the validity of the constitution, the nullity or the dissolution of companies or other legal persons or of the validity of the decisions of their organs: the courts of the EU country in which the legal person has its seat;
 
  • the validity of entries in public registers: the courts of the EU country in which the register is kept;
 
  • the registration or validity of patents, trade marks, designs or other similar rights: the courts of the EU country in which the deposit or registration has been applied for, has taken place or is under the terms of an Union instrument or an international convention deemed to have taken place;
 
  • the enforcement of judgments: the courts of the EU country in which the judgment has been or is to be enforced.

What about the recognition and enforcement of a judgment given in an EU country ? 

A judgment given in an EU country is to be recognised in the other EU countries without any special procedure being required.

A judgment will not be recognised if:

 
  • such recognition is manifestly contrary to public policy in the EU country in which recognition is sought;
 
  • the defendant was not served with the document that instituted the proceedings in sufficient time and in such a way as to enable the defendant to arrange for his/her defence;
 
  • it is irreconcilable with a judgment given in a dispute between the same parties in the EU country in which recognition is sought; 
 
  • it is irreconcilable with an earlier judgment given in another EU or non-EU country involving the same cause of action and the same parties.

A court in which recognition is sought of a judgment given in another EU country may stay the proceedings, if an ordinary appeal against the judgment has been lodged.

A judgment is to be enforced in another EU country when, on the application of any interested party, it has been declared enforceable there. The parties may appeal against a decision on an application for a declaration of enforceability.

 
 
Nasser Merabet
Laywer
avocat@nmerabet.fr