The European Union in 2000, adopted Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in court cases that lays down the rules on court’s jurisdiction with an international dimension involving more than one Member State. Furthermore, it provides a harmonised approach to determining which EU Member State court should have jurisdiction over a dispute and how judgments from courts in one EU Member State should be recognised and enforced in other EU Member States.
For example, if you are involved in a judicial proceeding, or if you expect to be involved in one, you will need to identify the court that has jurisdiction. If you address the wrong court or if there is a dispute over the question of jurisdiction you run the risk of a considerable delay in the proceedings or even of a dismissal of your case because of a lack of jurisdiction.
In general the factor determining jurisdiction is the domicile of the defendant. Persons domiciled in a Member State shall irrespective of their nationality, be sued in the courts of that Member State. Nevertheless, the Regulation contains a number of provisions that depart from this principle and allow court proceedings to be taken place in another Member State other than where the defendant is domiciled. The most important examples of these special rules are:
- in matters relating to a contractual obligation a person can be sued in the courts for the place of performance of that obligation.
- in an action for damages, the courts of the place where the harmful event occurred are competent. Sometimes the place of the event gives rise to liability in tort and the place where that damage results are not located in the same Member State. In that case the plaintiff is free to select the court of any of those Member States.
- in matters relating to maintenance, the maintenance creditor can turn to the courts of the Member State in which he himself is domiciled.
- in some contractual relationships that are characterized by a marked imbalance of power between the parties such as matters relating to consumer contracts, insurance and to individual contracts of employment the weaker party is deemed to be in need of special protection. As a general rule, the weaker parties (the consumer, the insured and the employee) can only be sued in the Member State where they are domiciled. The stronger parties (the dealer, the insurer, the employer), on the other hand, can also be sued (sometimes subject to certain conditions, in the Member State) where the weaker party is domiciled or as regards employment contracts, where the work is carried work.
The rules on special jurisdiction listed above constitute an additional option for the plaintiff who can also choose to sue the defendant in the courts of the Member State in which that person is domiciled. There are, however, also several cases of so-called exclusive jurisdiction that do not supplement but replace the jurisdiction based on the defendant’s domicile like the followings:
- in matters relating to the ownership or tenancy of immovable property only the courts of the Member State where the property is situated have jurisdiction.
- in matters relating to rights that have to be registered such as patents or trademarks the courts of the Member State in which the registration has taken place are exclusively competent.
- subject to some conditions the parties also have the possibility of freely choosing the Member State whose courts are to have jurisdiction. Such a choice of court agreement usually leads to the exclusive competence of the courts of the chosen Member State unless the parties stipulate otherwise.
Subject to certain exceptions, the mere fact that the defendant enters an appearance in court leads to the jurisdiction of the courts of that Member State even if they are not ordinarily competent.
It may happen that both parties to a dispute initiate court proceedings on the same matter in different Member States. In that situation the Regulation basically establishes a “first come first served” rule. The second court used has to stay its proceedings and wait for the other court to decide on its jurisdiction. If the first court considers itself competent the other court has to dismiss the case. Only if the first court comes to the conclusion that it does not have jurisdiction can the other court continue its proceedings.
Concluding, the European Parliament and the Council οn 12 December 2012, adopted Regulation (EC) 1215/2012 which replaces Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in court cases and shall apply from 10th January 2015. Experience with Regulation (EC) 44/2001 has presented some shortcomings over the years. The purpose of the Recast Regulation was consequently to reformulate certain aspects of the existing law to better address contemporary needs, while retaining its principal objective of facilitating the free circulation of judgments and to further enhance access to justice.
By: Stalo Kantara
D. Sizinos & Associates LLC
Advocates – Legal Consultants
