European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Article 71(1) of Regulation No 1215/2012 introduces an exception to the principle of primacy by setting forth that, where a Member State is also a party to a specialized convention including jurisdictional rules specific to the matter it covers, Brussels I Regulation recast does not apply to matters governed by the specialized convention. Article 71(1) does not however enable Member States to introduce, by concluding new specialized conventions or amending conventions already in force, rules which would prevail over those of the regulation . 

According to the Court of Justice, where a Member State is also a party to another convention on a specific matter containing rules on jurisdiction, this other convention precludes the provisions of the regulation from applying to cases governed by it, but the regulation is applicable in cases to which the convention does not apply .

Pursuant to Article 71(2)(a), a court of a Member State which is a party to a convention on a particular matter may assume jurisdiction in accordance with that convention even where the defendant is domiciled in another Member State which is not a party to that convention. In any event, the court seized must apply Article 26 of the regulation, which imposes on the court - where the defendant who is domiciled in one Member State is sued in a court of another Member State and does not enter an appearance - to decline jurisdiction of its own motion, “unless its jurisdiction is derived from the provisions of this regulation”. According to the Court of Justice , the jurisdiction of the court must be regarded as established insofar as Article 71 expressly mentions that the rules of the specialized conventions are not affected by those of the regulation. Thus, the court must take account of the jurisdiction rules set forth in the specialized conventions in question where it checks whether it has jurisdiction pursuant to Article 28.

However, although Article 71 is aimed at enforcing rules laid down for specific features of a particular matter, it cannot be interpreted as such when, in a field covered by the regulation, the application of a specialized convention may lead to results that are less favorable to the achievement of the proper running of the internal market than those to which the provisions of the regulation lead. Accordingly, the rules governing jurisdiction, recognition and enforcement that are laid down by a specialized convention apply provided that they are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimized, and that they ensure, under conditions at least as favorable as those provided for by the regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the Union , as the fact that the convention offers more choice than the regulation in terms of the rules on jurisdiction cannot compromise the principles which underlie judicial cooperation in civil and commercial matters in the EU .

Case C-533/08 TNT Express Nederland [2010] ECR I-4107, LawLex201100000255JBJ.

Case C-406/92 Tatry v Maciej Rataj [1994] ECR I-5439, LawLex200900000723JBJ.

Case C-148/03 Nürnberger Allgemeine Versicherung [2004] ECR I-10327, LawLex200900000586JBJ.

Case C-533/08 TNT Express Nederland [2010] not yet published in the ECR, LawLex201100000255JBJ.

Case C-157/13 Nickel & Goeldner Spedition v Kintra, Judgment of 4 September 2014, LawLex201400000928JBJ.

323. Exception to the principle of the precedence of EU law