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

The European judicial area was built in two phases: firstly, through international conventions, then by adopting European regulations. 
The Brussels Convention of 27 September 1968  on jurisdiction and the enforcement of judgments in civil and commercial matters, replaced by the EU Regulation No 44/2001 of 22 December 2000, referred to as the Brussels I Regulation , which itself has recently been  …

Judicialization of the European area by conventional law

The European judicial area was built in two phases: firstly, through international conventions, then by adopting European regulations. 

The Brussels Convention of 27 September 1968  on jurisdiction and the enforcement of judgments in civil and commercial matters, replaced by the EU Regulation No 44/2001 of 22 December 2000, referred to as the Brussels I Regulation , which itself has recently been reformed by Regulation No 1215/2012 of 12 December 2012 , referred to as the Brussels I bis Regulation, applicable in all Member States since 10 January 2015 , is the result of the desire of six initial Member States to unify the rules of conflict of jurisdiction within Europe and to guarantee the free movement of judgments between contracting States. The Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Brussels Convention and the accession conventions  appeared in an annex to the Brussels Convention and was included in Regulation No 44/2001. 

Due to the significant volume of trade between the European States and the countries of the European Free Trade Association, the Lugano Convention, signed on 16 October 1988  has been replaced by a Convention of 30 October 2007  which reproduces the main provisions of the Brussels I Regulation . It pursues the same objective of free movement of judicial decisions, but between the Member States of the European Union, Switzerland, Norway and Island. Unlike the system set up by the Brussels Convention, the Lugano Convention does not provide for the intervention of the Court of Justice to remove doubts as to its interpretation in cases referred to the national courts.

Today, the law governing international agreements is therefore no longer part of the “area of freedom, security and justice” within the Union as referred to in Article 67 TFEU. The entry into force of the Treaty of Amsterdam led to the replacement of international agreements with European instruments. The replacement of the Brussels Convention by Regulation No 44/2001 (recast by Regulation No 1215/2012 of 12 December 2012)  and the Rome Convention of 19 June 1980 on the law applicable to contractual obligations  by the Rome (I) Regulation  (Regulation No 593/2008 of 17 June 2008) , illustrate how, in business law, the law of international agreements has become Europeanized .

In parallel to the Rome (I) Regulation, the Rome (II) Regulation (No 864/2007 - OJ of 31 July 2007 L 199 on the law applicable to non-contractual obligations which for business law, governs pre-contractual negotiations and quasi-contracts) also entered into force. 

The same is true in family law with Regulation No 1347/2000 of 29 May 2000, Brussels (II), replaced by Regulation No 2201/2003 of 27 November 2003, Brussels (II bis), which replaced the "Bruxelles II" Convention of 28 May 1998, on jurisdiction and the recognition and enforcement of judgments in matrimonial matters.

OJEU L 351 of 20 December 2012. Regulation No 1215/2012 came into force on 10 January 2013.

With the exception of Articles 75 and 76, which are applicable as of 10 January 2014. Article 66 of Regulation No 1215/2012 provides:"This regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015".

See Explanatory report by Fausto Pocar on the Lugano Convention of 30 October 2007, OJ C 319 of 23 December 2009, 1.

Regulation No 1215/2012 of 12 December 2012 (OJEU L 351 of 20 December 2012) repealing Reg. No 44/2001. 

Intervening with increasing frequency, the European legislator has constituted a body of rules aimed both at eliminating obstacles to the proper operation of civil procedures and reinforcing legal certainty in the European Judicial Area. The preamble of Regulation No 44/2001 states that, “The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. In order to establish progressively such an area, the Community should adopt, amongst other things, the measures relating to judicial cooperation in civil matters  which are necessary for the sound operation of the internal market”. Regulation No 1215/2012 moves even further towards integration. The exequatur procedure is abolished in order to ensure that judgments in civil and commercial matters can circulate more freely: a decision rendered in one Member State shall be recognized and enforced in all the other Member States without any other specific measure required . The Brussels I Regulation has been supplemented by: - Regulation No 1393/2007 of 13 November 2007 (which replaces Regulation No 1348/2000 of 29 May 2000 ) on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters ; - Regulation No 861/2007 of 11 July 2007 establishing a European Small Claims Procedure (less than EUR 2,000) ; - Regulation No 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims ; - Regulation No 1896/2006 of 12 December 2006 creating a European order for payment procedure , and above all Regulation No 1346/2000 of 29 May 2000 on insolvency proceedings , a hybrid regulation which not only governs judicial competence and conflicts of jurisdictions, following the example of Regulation No 44/2001 but also the applicable law on international bankruptcy. In late 2012, the Commission issued proposals for the modernization of Regulation No 1346/2000. The purpose of this review was mainly to improve the efficiency of cross-border insolvency proceedings in order to ensure the proper functioning and resilience of the internal market in times of economic crisis  and led to the adoption of Regulation No 2015/848 of 20 May 2015 , replacing Regulation No 1346/2000.

In order to facilitate judicial cooperation between the Member States, the Council has created by decision of 28 May 2001 No 2001/470 (OJ L 174 of 26 June 2001), the European Judicial Network in civil and commercial matters.

The recognition or enforcement of a judgment can however still be contested and refused on the same grounds as those provided by Articles 34 and 35 of Regulation No 44/2001. Article 45 of Regulation No 1215/2012 which merges the two articles, provides that recognition - or  enforcement (see Art. 46, Reg. 1215/2012) -  of a judgment may be refused if it conflicts with section 3 (jurisdiction in matters relating to insurance ), section 4 (jurisdiction over consumer contracts), and also section 5 (jurisdiction over individual contracts of employment) of Chapter II - which is new -, "where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the claimant". Failure to comply with the rules regarding the courts having exclusive jurisdiction provided under section 6 of Chapter II can also be relied on to justify a refusal of recognition or enforcement.

OJ L 174 of 27 June 2001; amended by Regulation No 1869/2005 of 16 November 2005 (OJ L 300 of 17 November 2005).

In brief, the reform proposals widen the scope of application of the regulation by amending the definition of insolvency proceedings, clarify the rules on the determining of which court has jurisdiction, aim to improve the management of secondary insolvency proceedings, require Member States to implement measures for the publication of insolvency proceedings and the lodging of claims and improve  coordination of proceedings with regard to members of the same group of underdertakings. 

European judicial cooperation in civil matters

On 22 December 2000, the Council adopted Regulation No 44/2001, which replaced the Brussels Convention as soon as it came into force, on 1 March 2002, without any act of ratification or transposition required (Article 76). The Union preferred to adopt a regulation rather than a convention since it wished to have a legally binding and directly applicable instrument in matters of judicial competence and enforcement of decisions. In effect, difficulties encountered in applying the Brussels Convention had made it necessary to make many conventional readjustments and gave rise to numerous conventions and treaties concluded between the Member States, which are now an integral part of the Union provision: - the Luxembourg Convention of 9 October 1978 on the accession of Denmark, Ireland and the United Kingdom ; - the Convention on the accession of Greece of 25 October 1982 ; - the San Sebastian Convention of 26 May 1989 on the accession of Spain and Portugal ; - the Convention of 29 November 1996 on the accession of Austria, Finland and Sweden . Although Regulation No 1215/2012 of 12 December 2012 came into force on 10 January 2013, it is only applicable since 10 January 2015  so we will only refer to the major changes in this work.

Will be successively addressed: the scope of application of Regulation No 1215/2012 in its temporal, territorial, material and transversal dimension, the various rules of judicial competence - competence in principle, special and exclusive competence, competence that protects the weaker party or competence to adopt interim measures -, the system of judicial competence which encompasses both pleas of competence and extensions of competence, recognition and enforcement of judgments, and the enforcement of authentic instruments and court settlements. 

With the exception of Articles 75 and 76, which are applicable as of 10 January 2014 as they require the cooperation of the Member States for the effective implementation of the regulation. According to Article 66, "This regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015".

European Business Law

309. Judicialization of the European area by conventional law

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Sous parties

Les notions juridiques connexes

309. Judicialization of the European area by conventional law

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Sous parties

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise