Legal System


European legislation on private international law

The European Union has enacted several rules to support the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country. On the field of private international law, applicable to and between all EU Member States, three types of legal rules have been set out in order to guarantee free movement within the legal sphere.

Firstly, there are European rules on jurisdiction and the recognition and enforcement of judgments. The seised court of a Member State has to assess on the basis of these European rules whether it has jurisdiction to take the case into consideration and to render a judgment on it. Furthermore, the courts of the Member States have to determine on the basis of these European rules whether it must recognize a judgment of the court of another Member State as a valid and effective judgment and even whether it must ensure that this foreign judgment can be enforced and executed in the Member State of the seised court. The most important European rules on jurisdiction and recognition and enforcement are:

Secondly, the European Union has created rules for legal proceedings in which there appears to be a conflict of laws, in the sense that a choice has to be made with regard to which State’s law is governing the legal relationship in dispute between the parties to the proceedings. The seised court, after having established that it has jurisdiction, then has to ascertain which law is applicable to the case it faces. Often this is the law of the Member State of the seised court itself. Yet, it is possible that the seised court has to apply the law of another State, for instance because parties have explicitly subjected their dispute to the law of another country or because the dispute itself is more connected with another State than that of the seised court. The most important European rules that deal with conflict of laws are:

Thirdly, the European Union has set out many rules to promote legal cooperation between the Member States and to ensure access to justice. These rules do not affect the citizens of the EU Member States directly, since they are especially addressed to the courts and other judicial bodies or authorities of the Member States. The most important European rules covering this subject are:

 


How to approach European private international law?

There are so many European rules on private international law that it has become difficult to discover which Regulation or other (national) rule is applicable in a specific case. A few guidelines to this point may come in handy.

First, however, it is important to notice that each individual case is dealt with from the point of view of the court which is actually seised by the parties to the lawsuit. The seised court only has to answer the question whether it has jurisdiction to give a ruling, and if so, which law it has to apply to its decision. If it thinks that it has jurisdiction, it will accept the case. If it thinks it has not, it will refuse to take the case into consideration and proclaim a non-suit. The seised court does not investigate if there is a possibility that the courts of other States are allowed to deal with the lawsuit too and it want refer parties to such other court, not even if it thinks that it has no jurisdiction itself.

If the seised court in first instance denies jurisdiction and dismisses the case, the plaintiff may lodge an appeal and, after that, even an appeal in cassation with a higher court in order to reverse this decision.

When the seised court is of the opinion that it has jurisdiction to give a judgment in this specific case, it has to answer the question which law is governing the legal relationship between the parties to the proceedings. It shall answer this question independently on the basis of rules of international private law with regard to conflict of laws as imposed by European legislation, Conventions or domestic (national) law. This means, for instance, that it is possible that a Dutch court shall accept, pursuant to rules on international jurisdiction, a case which according to rules on matters of conflict of laws is subject to German law. The Dutch court shall then render a judgment of which the outcome depends on the application and interpretation of German law. In order to be able to judge the case on the basis of German law, the Dutch court shall ask for advice of German lawyers. It shall nevertheless pronounce a Dutch judgment.

After the seised court or, in the event of an appeal or appeal in cassation, the higher courts of that same State, have given a final and binding judgment, the question of recognition and enforcement arises. As a rule, the judgment will be enforceable always in the State of the court which has given the final judgment, regardless of which law has been applied to come to this decision. So, when a Dutch court has rendered a judgment on the basis of German law, that judgment is enforceable immediately in the Netherlands as a Dutch judgment. If one of the involved parties wants to enforce that judgment in another State (as well), he shall have to address the courts of that other State and ask for an enforcement decision there. The court of that other State shall not review the case all over again to its substance or outcome, but it shall only assess whether it is compelled, pursuant to European legislation, a Convention or its national rules of international private law, to acknowledge the enforceability of the foreign judgment in its own State. If the court recognizes the enforceability of the foreign judgment, it shall order the execution thereof in its own State, which has to be done according to procedures governed by domestic law. Usually this means that only bailiffs, notaries, bankruptcy liquidators and other officials of that State may perform all necessary steps to seize and sell off the property of the defendant in that State. The steps to be taken in this respect are the same as in the event of an enforcement of a judgment of a domestic court of that same State.

This website focuses in particular on European rules on private international law. Where parties have seised a court outside the European Union (or EFTA-territory), that court will, of course, not apply any European legislation. It will determine on the basis of the rules of private international law of the State of which it forms a judicial organisation whether it has jurisdiction or not. As far as that State is a Contracting Party to an applicable International Convention, it will take the provisions of that Convention into consideration. This means that the plaintiff sometimes has the possibility to choose between a court in one or more EU Member States or in a third State ('forum shopping'). Where the plaintiff decides to bring his case to a court of a third State, that court will investigate pursuant to its own rules of private international law whether it is competent to rule on the claim and which law it has to apply. If it thinks it has jurisdiction, its judgment will be valid in that specific third State, and it may be recognized and enforced even in other States, possibly including some EU Member States, on account of International Conventions or the internal law of the State where recognition and enforcement is sought. Again, European legislation plays no part in this. This is different when the case is tried before a court of a Member State, even when that court did not derive its jurisdiction from European law, but for instance from an International Convention concluded between its own State and a third State or on the domestic law. The judgment it pronounces, will still be a judgment of a court of a Member State to which European legislation for the recognition and enforcement of judgments applies. So when one of the parties seeks enforcement of that judgment in another Member State, it may refer to European laws which regulate the recognition and enforcement of the courts of a Member State in one of the other Member States.

 


Jurisdiction

The seised court of a EU Member State has to apply certain rules to determine whether it has jurisdiction and, if so, which law is governing the case. In answering these questions, the court shall divide the dispute according to its substance in different categories. For each of these categories individually, it must assess whether it has jurisdiction and, if so, which law it has to apply to it. Therefore, the cause of action is subdivided according to its components into various legal matters which may sometimes involve an incidental question. When a court has jurisdiction to rule on a specific component of the dispute, it is possible that it may also give a judgment on another component which is closely connected with the first mentioned matter, even though it would not lead to jurisdiction if it would be considered on its own. This is, for instance, the case where the court of a State is hearing a divorce claim, and the involved parties have agreed to bring also the claim with regard to parental responsibility to that same court, although this court would not be competent to rule on this issue if this claim would have been filed separately.

First the court always has to answer the question whether it has jurisdiction to give a judgment in a specific matter. The answer to this question depends on the subject of the case to be tried and on the domicile of the parties involved in the dispute. In this respect a distinction has to be made between civil and commercial matters on the one hand and matrimonial matters and matters of parental responsibility on the other hand. Matters regarding maintenance obligations are classified under civil and commercial matters and are, therefore, not seen as matters regarding matrimonial law or parental responsibility.

Civil and commercial matters
Matrimonial and parental matters
Other matters of civil law


Civil and commercial matters whatever the nature of the court or tribunal, like disputes arising from or related to (Article 1 BR I):

  • contracts and contractual obligations (i.e. sale of goods, sale of immovable property, consumer contracts, provision of services, lease, insurance, employment, agency, loans, suretyship, financial and collateral contracts, commercial partnerships, construction, donation, franchising, travel contracts, transport, admiralty, aviation)
  • maintenance obligations
  • real property rights (rights in rem)
  • delict, quasi-delict, non-contractual obligations and other damages
  • intellectual property rights and infringements on intellectual property rights
  • incorporation, organisation and dissolution of legal persons

  Excluded are:

  • revenue, customs or administrative matters
  • the status or legal capacity of natural persons
  • rights in property arising out of a matrimonial relationship
  • rights in property arising from wills and succession
  • bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
  • social security
  • arbitration


Civil matters, whatever the nature of the court or tribunal, relating to (a) the pronouncement of a divorce, legal separation or marriage annulment or (b) the attribution, exercise, delegation, restriction or termination of parental responsibility (Article 1 BR II), like:

  • rights of custody and rights of access
  • guardianship, curatorship and similar institutions
  • the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child
  • the placement of the child in a foster family or in institutional care
  • measures for the protection of the child relating to the administration, conservation or disposal of the child's property.

  Excluded are:

  • maintenance obligations
  • the status or legal capacity of natural persons
  • adoption of children
  • rights in property arising out of a matrimonial relationship
  • rights in property from wills and succession
  • bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
  • social security
  • arbitration

    •  


Other civil and commercial matters (Article 1 BR I and Article 1 BR II), like disputes arising from or related to:

  • the status or legal capacity of natural persons
  • adoption of children
  • rights in property arising out of a matrimonial relationship
  • rights in property from wills and succession
  • bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
  • arbitration

 

 

 
Does the matter fall within the scope mentioned above?
Does the matter fall within the scope mentioned above?
Does the matter fall within the scope mentioned above?

 


Jurisdiction over civil and commercial matters

Is the defendant domiciled in one of the EU Member States?

NO
YES


The Brussels I Regulation does not apply: jurisdiction of the courts of each Member State shall be determined by the national law of that Member State, including possible (bilateral or multilateral) International Conventions to which that Member State is a Contracting Party with third States (Article 4 BR I).

Four exceptions in which the Brussels I Regulation nevertheless does apply even though the defendant is not domiciled in one of the EU Member States:

  1. In matters of insurance, consumer contracts and individual employment contracts: where an insurance company, enterprise or employer himself is not domiciled in the European Union, but he has a branch, agency or other establishment in one of the Member States, he shall, in disputes arising out of the operations of that branch, agency or establishment, be deemed to be domiciled in that Member State (see the procedure on the right).

  2. In matters of exclusive jurisdiction under Article 22 BR I regardless where parties are domiciled (matters relating to real property rights (rights in rem) in immovable property, tenancies of immovable property, or incorporation, nullity and dissolution of legal persons and their bodies, validity of entries in public registers, the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered.

  3. If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship (prorogation of justice under Article 23).

  4. If a summoned defendant has appeared before the court of a EU Member State (implied jurisdiction Article 24 BR I)

 


The Brussels I Regulation does apply (Article 2 BR I), unless:

  1. the matter is dealt with by a (bilateral or multilateral) International Convention on jurisdiction for particular matters and both parties are domiciled in States that are Contracting Parties to that Convention, regardless whether it concerns the relation of a EU Member State to another EU Member State or to a third State (Article 71 and Article 72 BR I)*).

    *) This rule now seems to apply only where the provisions of the special Convention are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimised and ensure, under conditions at least as favourable as those provided for by the Brussels I Regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union (ECJ 4 May 2010 TNT Express Nederland BV v AXA Versicherung AG, Case C-533/08).

  2. the matter is dealt with by an International Convention on jurisdiction that in general covers various subject-matters between the participating Contracting Parties, and the involved parties both are domiciled in States that are Contracting Parties to that Convention, yet one of these countries is not a EU Member State, but a third State (Article 69 and Article 70 BR I).

  1. in specific matters which are contained in Community instruments or in national legislation harmonised pursuant to such instruments (Article 67 BR I).

Where one of the above mentioned exceptions applies, the seised court has to answer the question whether it has jurisdiction, on the basis of that relevant EC Instrument or International Convention.

 


Jurisdiction over matrimonial and parental matters

Does it concern a matter of divorce, legal separation or marriage annulment or a matter of parental responsibility over a child?

matters of divorce, legal separation or marriage annulment
matters of parental responsibility over a child


The Brussels II Regulation applies (Article 2 BR II) if at least one of the spouses:

  1. is habitually resident in the territory of a Member State, or;
  2. is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her 'domicile' in the territory of one of the latter Member States (Article 6 BR II).

For Member States, the Brussels II Regulation supersedes possible Conventions existing at the time of entry into force of the Regulation which have been concluded (also) between two or more Member States and relate to matters governed by this Regulation. Since there are no multilateral International Conventions on jurisdiction in matters of divorce, legal separation or marriage annulment, this can only mean that bilateral Conventions or Agreements between Member States merely remain effective as far as it concerns subjects not covered by the Brussels II Regulation.

When a (bilateral) International Convention on jurisdiction in matters of divorce, legal separation or marriage annulment applies to a case which involves, on the one hand, a spouse who is a resident or national of a EU Member State and, on the other hand, a spouse who is a resident or national of a third State, and both States are a Contracting Party to that (bilateral) Convention, then jurisdiction has to be determined according to that Convention, provided it is applicable due to the habitual residence or nationality of the parties involved. If such applicable Convention is lacking, then the seised court of a EU Member State has to assess on the basis of its domestic law whether it has jurisdiction. The Brussels II Regulation may come to surface again when one of the spouses is a habitually resident or national of one of the EU Member States (Article 6 BR II).

 


The Brussels II Regulation applies:

  1. if the child has its habitual residence in one of the EU Member States at the time that the court is seised (Article 8 BR II) or at least three months before it lawfully has moved to another State (Article 9 BR II)
  2. if an application for divorce, legal separation or marriage annulment is pending in the courts of a EU Member State and any matter relating to parental responsibility connected with that application is brought in under a prorogation of justice (Article 12 BR II).

For Member States, the Brussels II Regulation supersedes possible (bilateral or multilateral) Conventions existing at the time of entry into force of the Regulation which have been concluded (also) between two or more Member States and relate to matters governed by this Regulation (Article 59 and Article 60 BR II). Such (bilateral or multilateral) Conventions or Agreements merely remain effective between Member States as far as it concerns subjects not covered by the Brussels II Regulation.

Where the matter is not dealt with by the Brussels II Regulation or an International Convention, the seised court has to apply its national law to determine whether it has jurisdiction to rule the case. That national law may include, as a part of domestic private international law, one or more International Conventions to which the involved EU Member States are a Contracting Party, provided that the matter does not fall within the scope of the Brussels II Regulation (Article 60 and Article 62 BR II). The relation between the Brussels II Regulation and the 1996 Hague Convention is well defined (Article 61 BR II)


Where neither of the spouses are habitually resident within the European Union and neither of them has the nationality of one of the EU Member States, the Brussels II Regulation plays no part in determining jurisdiction in matters relating to divorce, legal separation or marriage annulment. The seised court of a EU Member State has to determine on the basis of International Conventions, where applicable, or on the basis of the law of its own State whether it has jurisdiction to give a judgment.

 


If the child is habitually resident in the territory of a third State which is a Contracting party to a bilateral or multilateral Convention and the involved EU Member State is a Contracting Party to that Convention as well, then the seised court must determine on the basis of that Convention whether it has jurisdiction to give a judgment or decision. Otherwise, the seised court has to apply its national law in order to answer the question whether it has jurisdiction to rule on a matter of parental responsibility which involves a child not habitual resident in the European Union.

 


Jurisdiction over other civil matters


Where it concerns other civil and commercial matters than those mentioned earlier in connection with the applicability of the Brussels I and II Regulations, the seised court of a EU Member State, in determining its jurisdiction, first has to consult possible International Conventions with regard to jurisdiction over the subject in question. There are not many of such bilateral or multilateral Conventions. Most Conventions on these matters relate to the law applicable and to procedures to be observed by the authorities of the Contracting Parties. So usually the seised court has to return to its domestic rules of private international law to get an answer on the question whether it has jurisdiction to hear the case. The Brussels I and II Regulations have no meaning in this respect.

 


Applicable law

The first decision of the seised court relates to the question whether it has, in its opinion, jurisdiction to give a judgement on a specific matter of the dispute or even on the dispute as a whole. To the extent that the court thinks it is not competent to rule on a specific matter, it shall dismiss the case for this part and proclaim a non-suit. Often the entire dispute is dismissed due to a lack of jurisdiction. Generally this means that the proceedings have not reached the stage where the court already had to establish which law is applicable. Sometimes, however, this question has to be answered by the court upfront in order to be able to determine whether it has jurisdiction, especially where parties have agreed that the law of a particular State shall govern their dispute or to determine if a party is domiciled or habitually resident in a specific Member State.

When the court is of the opinion that it is allowed to give a binding judgment on a specific subject-matter or even on the entire dispute, it shall accept the case. As far as an international element is drawn in, the court must examine separately, for each subject-matter involved, which law actually governs the legal relationship in dispute. In doing so, the court must turn to other rules of law than those governing jurisdiction. In determining the law applicable, the court will apply its own domestic law, therefore the law of the forum ('lex fori'), to all procedural matters, including the choice of law rules. Where parties have agreed themselves that the law of a specific State shall govern their dispute, the court shall usually respect that choice, unless that choice or the form in which it was made cannot be accepted due to an International Convention, European Regulation or a rule of domestic law. In that event the court shall use other rules to determine which law has to be applied. The same has to be said where parties themselves have not made any choice of law. International Conventions, European Regulations or, if none of those apply, domestic law shall determine the law according to which the dispute has to be settled.

The rules for determining the applicable law link the various issues of the dispute to the laws of potentially relevant States and connect each subject-matter to the law of the State to which it is attached most. Where it concerns matters of legal status or legal capacity this usually will be the law of the nationality ('lex patriae') or domicile ('lex domicilii') of the parties to the proceedings. In matters of divorce or legal separation most likely the law of the State where the marriage was concluded is relevant. Disputes over immovable property are often governed by the law of the State where the property is situated ('lex situs'), especially in matters relating to title or (limited) real property rights in the immovable thing. Matters relating to a contract generally have to be solved in accordance with the law of the State where the contract physically is or has to be performed ('lex loci actus'), whereas tort cases will be subject to the law of the State where the event occurred that gave rise to the litigation ('lex loci delicti'). One of the most significant rules is that the law to be applied in any given situation will be the 'proper law'. This is the law of the State that seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied.

Contractual obligations in civil and commercial matters
Non-contractual obligations in civil and commercial matters
Other civil and commercial matters


(1) Where the involved parties both are habitual resident or domiciled in States that are Contracting Parties to a (bilateral or multilateral) International Convention on applicable law that covers the matter, yet one of these countries is not a EU Member State, but a third State, then that International Convention shall be applicable (Article 25(1) RR I).

(2) Where the involved parties both are habitual resident or domiciled in a EU Member State, then the Rome I Regulation shall be applicable, regardless of whether those EU Member States both are Contracting Parties as well to a (bilateral or multilateral) International Convention covering the matter (Article 25(2) and Article 26 RR I).

The Rome I Regulation, however, is not applicable to:

  • revenue, customs or administrative matters (Article 1(1) RR I)
  • particular matters dealt with by conflict-of-law rules relating to contractual obligations laid down in Community law, without prejudice to Article 7 RR I (Article 23 RR I)
  • questions involving the status or legal capacity of natural persons, without prejudice to Article 13 RR I;
  • obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects, including maintenance obligations
  • obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession
  • obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character
  • arbitration agreements and agreements on the choice of court
  • questions governed by the law of companies and other bodies, corporate or unincorporated, such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies, corporate or unincorporated, and the personal liability of officers and members as such for the obligations of the company or body
  • the question whether an agent is able to bind a principal, or an organ to bind a company or other body corporate or unincorporated, in relation to a third party
  • the constitution of trusts and the relationship between settlors, trustees and beneficiaries
  • obligations arising out of dealings prior to the conclusion of a contract
  • insurance contracts arising out of operations carried out by organisations other than undertakings referred to in Article 2 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance the object of which is to provide benefits for employed or self-employed persons belonging to an undertaking or group of undertakings, or to a trade or group of trades, in the event of death or survival or of discontinuance or curtailment of activity, or of sickness related to work or accidents at work (Article 1(2) RR I)
  • evidence and procedure, without prejudice to Article 18 RR I (Article 1(3) RR I)

(3) Where the involved parties both are habitual resident or domiciled in a EU Member State, but the subject-matter, although it is a matter relating to a contractual obligation under civil or commercial law, is not covered by the Rome I Regulation, then, if both EU Member States are Contracting Parties to the same (bilateral or multilateral) International Convention which covers the matter, that International Convention shall be applicable (Article 26 RR I), and otherwise, the domestic law of the State whose court is seised


Where none of the above mentioned rules designates how the seised court has to determine which law is governing the dispute or one of its subject-matters, the seised court shall use its domestic law to answer this question.


(1) Where the involved parties both are habitual resident or domiciled in States that are Contracting Parties to a (bilateral or multilateral) International Convention on applicable law that covers the matter, yet one of these countries is not a EU Member State, but a third State, then that International Convention shall be applicable (Article 28(1) RR II).

(2) Where the involved parties both are habitual resident or domiciled in a EU Member State, then the Rome II Regulation shall be applicable, regardless of whether those EU Member States both are Contracting Parties as well to a (bilateral or multilateral) International Convention covering the matter (Article 28(2) and Article 29 RR II).

The Rome II Regulation, however, is not applicable to:

  • revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority ('acta iure imperii') (Article 1(1) RR II)
  • particular matters dealt with by conflict-of-law rules relating to non-contractual obligations laid down in Community law (Article 27 RR II)
  • non-contractual obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects including maintenance obligations
  • non-contractual obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession
  • non-contractual obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character
  • non-contractual obligations arising out of the law of companies and other bodies, corporate or unincorporated, regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents
  • non-contractual obligations arising out of the relations between the settlors, trustees and beneficiaries of a trust created voluntarily
  • non-contractual obligations arising out of nuclear damage
  • non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation (Article 1(2) RR II)
  • evidence and procedure, without prejudice to Articles 21 and 22 RR II (Article 1(3) RR II)

(3) Where the involved parties both are habitual resident or domiciled in a EU Member State, but the subject-matter, although it is a matter relating to a non-contractual obligation under civil or commercial law, is not covered by the Rome II Regulation, then, if both EU Member States are Contracting Parties to the same (bilateral or multilateral) International Convention which covers the matter, that International Convention shall be applicable (Article 29 RR II), and otherwise, the domestic law of the State whose court is seised


Where none of the above mentioned rules designates how the seised court has to determine which law is governing the dispute or one of its subject-matters, the seised court shall use its domestic law to answer this question.


Other civil and commercial matters (Article 1 RR I and Article 1 RR II), like disputes arising from or related to:

  • revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority ('acta iure imperii')
  • particular matters dealt with by conflict-of-law rules relating to contractual or non-contractual obligations laid down in Community law
  • questions involving the status or legal capacity of natural persons, without prejudice to Article 13 RR I
  • contractual or non-contractual obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects including maintenance obligations
  • contractual or non-contractual obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession
  • contractual or non-contractual obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character
  • contractual or non-contractual obligations arising out of the law of companies and other bodies, corporate or unincorporated, regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents
  • the question whether an agent is able to bind a principal, or an organ to bind a company or other body corporate or unincorporated, in relation to a third party
  • contractual or non-contractual obligations arising out of the relations between the settlors, trustees and beneficiaries of a trust created
  • insurance contracts arising out of operations carried out by organisations other than undertakings referred to in Article 2 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance the object of which is to provide benefits for employed or self-employed persons belonging to an undertaking or group of undertakings, or to a trade or group of trades, in the event of death or survival or of discontinuance or curtailment of activity, or of sickness related to work or accidents at work
  • non-contractual obligations arising out of nuclear damage
  • non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation
  • evidence and procedure, without prejudice to Article 18 RR I and Articles 21 and 22 RR II

Where the dispute involves parties who are both hanitual resident or domiciled in EU Member States and it concerns particular matters dealt with by conflict-of-law rules relating to contractual or non-contractual obligations laid down in Community law, the question which law is appliable has to be answered on the basis of the relevant Community law (Article 23 RR I and Article 27 RR II).

Otherwise, this question has to be answered on the basis of an applicable (bilateral or multilateral) International Convention covering the matter, regardless of whether the involved parties are both habitual resident or domiciled in a EU Member State and/or a third State (Article 25 RR I or Article 28 RR II) or, where such an International Convention is not applicable, on the basis of domestic law of the State whose court is seised.

 

 


Recognition and enforcement

A judgment of a court of a specific State will be recognized as such in that same State. If it's an enforceable judgment, it can be executed in that State as well , all beith with the assistence of the authorities (bailiff, notary) designated for that purpose by the law of that State. Every State recognizes the judgments of its own courts as valid and binding judgments, irrespective of the law applied by its courts to come to the decision. When a French court has given a judgment, based on Spanish law, because according to French rules of private international law the dispute had to be solved in agreement with Spanish civil law, this judgment will be recognized as such in France and, when it is declared enfocerable by the French court, it may be enforced there. The French authorities designated to execute judgments, shall recognize it as a valid enforceable court decision which may function as legal basis for the necessary measures to be taken, like a seizure or a sale under execution.

Sometimes the plaintiff wants to achieve that a judgment, rendered by the courts of a specific State, shall have effect too in another State. He then may ask the courts of that other State to recognize that foreign judgment. Where the court of that other State recognizes the foreign judgment as such, this judgment will be regarded and treated as a valid and binding judgment in that State. It shall have the same effects there as a judgment that would have been rendered by the domestic courts of that same State. It's conceivable as well that the plaintiff wants to execute a judgment, rendered by the courts of a specific State, in another State, for instance because the defendant possesses valuable assets there. Provided that the foreign judgment is declared enforceable, the plaintiff may request the courts of that other State, where enforcement is sought, to recognize the foreign judgment as such and to allow its enforcement in that other State. Only after the courts of that other State have declared the foreign judgment enforceable, the designated authorities of that State are able to acknowledge it as a valid legal basis for enforcement measures.

Every State applies its own rules for the recognition and enforcement of foreign-country judgments. Often these rules are based on International Conventions that contain procedures on how to deal with requests for the recognition and enforcement of foreign judgments rendered in another Contracting Party. All participating Contracting Parties have agreed that they will follow these procedures when a judgment of the courts of one of the other Contracting Parties is presented to its courts for recognition and enforcement. EU Member States are mutually bound by the Brussels I and II Regulations, so the procedures of these Regulations have to be applied when a court of a EU Member State faces a request for the recognition and enforcement of a judgment of the courts of another EU Member State. Where no International Convention or European Regulation applies to such request, the seised court has to establish on the basis of its domestic law whether the foreign judgment is to be recognized and whether it even may be made enforceable within the State where enforcement is sought.

Usually, only foreign judgments that have become final and binding in the State of origin, shall be submitted to the courts of another State to make it recognized and enforceable there as well. The courts of a State where recognition or enforcement is sought of a judgment given in another State may stay the proceedings on a requst for recognition and enforcement if, in that other State, an ordinary appeal against that judgment has been lodged with a higher court of that State. So, when a Dutch court has rendered an immediately enforceable judgment in first instance, the plaintiff may seek recognition and even enforceablity thereof in Germany, but the German court, with whom such a request is pending, may postpone its decision on such request as long as the Dutch judgment has not yet become final and binding, for instance because the period allowed for appeal in the Netherlands has not yet been expired or indeed an appeal (in cassation) against that judgment has been lodged in the Netherlands with a Dutch Court of Appeal (or the Dutch Supreme Court) and that higher court has not yet rendered a final and binding decision. The German court shall only continue the proceedings on the request for recognition and enforcement after the Dutch judgment has become final and binding in the Netherlands after all.

For what kind of subject-matters provides the foreign judgment a judicial decision?

Civil or commercial matters
Matrimonial or parental matters
Other matters of civil law


Civil and commercial matters whatever the nature of the court or tribunal, like disputes arising from or related to (Article 1 BR I):

  • contracts and contractual obligations (i.e. sale of goods, sale of immovable property, consumer contracts, provision of services, lease, insurance, employment, agency, loans, suretyship, financial and collateral contracts, commercial partnerships, construction, donation, franchising, travel contracts, transport, admiralty, aviation)
  • maintenance obligations
  • real property rights (rights in rem)
  • delict, quasi-delict, non-contractual obligations and other damages
  • intellectual property rights and infringements on intellectual property rights
  • incorporation, organisation and dissolution of legal persons

  Excluded are:

  • revenue, customs or administrative matters
  • the status or legal capacity of natural persons
  • rights in property arising out of a matrimonial relationship
  • rights in property arising from wills and succession
  • bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
  • social security
  • arbitration


Civil matters, whatever the nature of the court or tribunal, relating to (a) the pronouncement of a divorce, legal separation or marriage annulment or (b) the attribution, exercise, delegation, restriction or termination of parental responsibility (Article 1 BR II), like:

  • rights of custody and rights of access
  • guardianship, curatorship and similar institutions
  • the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child
  • the placement of the child in a foster family or in institutional care
  • measures for the protection of the child relating to the administration, conservation or disposal of the child's property.

  Excluded are:

  • maintenance obligations
  • the status or legal capacity of natural persons
  • adoption of children
  • rights in property arising out of a matrimonial relationship
  • rights in property from wills and succession
  • bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
  • social security
  • arbitration

    •  


Other civil and commercial matters (Article 1 BR I and Article 1 BR II), like disputes arising from or related to:

  • the status or legal capacity of natural persons
  • adoption of children
  • rights in property arising out of a matrimonial relationship
  • rights in property from wills and succession
  • bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings
  • arbitration

 

 

 
Does the matter fall within the scope mentioned above?
Does the matter fall within the scope mentioned above?
Does the matter fall within the scope mentioned above?

 


Recognition and enforcement in civil and commercial matters


The Brussels I Regulation applies (Article 2 BR I), unless:

(1) it concerns a foreign judgment which is covered by a (bilateral or multilateral) International Convention on recognition and enforcement regarding particular civil and commercial matters and both States - the State where the judgment originates from and the State where recognition and/or enforcement is sought - are Contracting Parties to that Convention, regardless whether it concerns a foreign judgment of the courts of a EU Member State or of the courts of a third State (Article 71 and Article 72 BR I).

(2) it concerns a foreign judgment which is covered by a (bilateral or multilateral) International Convention that in general deals with the recognition and enforcement of foreign judgments on civil and commercial matters and both States - the State where the judgment originates from and the State where recognition and/or enforcement is sought - are Contracting Parties to that Convention, yet one of these countries is not a EU Member State, but a third State (Article 69 and Article 70 BR I).

(3) it concerns the recognition and/or enforcement of a foreign judgment which deals with a specific civil or commercial matter that is already covered by Community instruments or by national legislation harmonised pursuant to such instruments (Article 67 BR I).

Where one of the above mentioned exceptions applies, the seised court has to answer the question whether it may (must) recognize the foreign judgment and/or make it enforceable in its own country, on the basis of that relevant EC Instrument or International Convention. (Bilateral or multilateral) International Conventions that in general deal with the recognition and enforcement of foreign judgments on civil and commercial matters remain, where relevant, applicable between two EU Member State as far as the matter is not covered by the Brussels I Regulation.

 


Recognition and enforcement in matrimonial or parental matters


The Brussels II Regulation applies, unless:

(1) it concerns a foreign judgment which is covered by a (bilateral or multilateral) International Convention on recognition and enforcement regarding matrimonial or parental matters, and both States - the State where the judgment originates from and the State where recognition and/or enforcement is sought - are Contracting Parties to that Convention, yet one of these countries is not a EU Member State, but a third State (Articles 59 and 60 BR II).

(2) it concerns a foreign judgment which does not fall within the scope of the Brussels II Regulation, but is covered by a (bilateral or multilateral) International Convention, and both States - the State where the judgment originates from and the State where recognition and/or enforcement is sought - are Contracting Parties to that Convention, regardless whether it concerns a foreign judgment of the courts of a EU Member State or of the courts of a third State. The relation between the Brussels II Regulation and the 1996 Hague Convention is well defined (Article 61 BR II).

Where the matter is not dealt with by the Brussels II Regulation and neither by a (bilateral or multilateral) International Convention, the seised court has to apply its national law to determine whether it may (must) recognize a foreign judgment and/or declare it enforceable in its own country.

 


Recognition and enforcement in other civil matters


Where it concerns a foreign judgment on another civil matter, the seised court must apply, where relevant, a (bilateral or multilateral) International Convention which covers such judgments, regardless whether it concerns a foreign judgment of the courts of a EU Member State or of the courts of a third State. The International Convention is binding when the State where the judgment originates from and the State where recognition and/or enforcement is sought, both are Contracting Parties to that Convention. In other situations these questions have to be answered by the seised court in accordance with its domestic law.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Conventions on jurisdiction over particular subject-matters


Member States may have entered into bilateral or multilateral Conventions with other Member States and/or third States on jurisdiction with regard to particular matters, such as the arrest of sea-going ships or specific matters of insurance or employment. Even though these subject-matters are or could be covered as well by the more general Brussels I Regulation, such particular Conventions on international jurisdiction remain applicable between the participating Contracting Parties, irrespective of whether the dispute involves residents or nationals of two EU Member States or of a EU Member State and a third State. There is, as far as we know, no central data base where all bilateral Conventions and Agreements of all EU Member State (with third States) are registered, so that parties and their solicitors, just as the seised court, have to investigate this for each individual case separately in order to prevent a non-suit. The Dutch government has created the Dutch Treaty Data Base where all bilateral and multilateral Conventions and Agreements of the Netherlands with other (Member) States can be found. This is a very helpful tool to discover, in a specific case, whether the Netherlands is bound by any International Convention or (bilateral) Agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Conventions dealing with jurisdiction over various subject-matters in general


The best example of such a general International Convention on jurisdiction is, of course, the Lugano Convention 2007. Its relation to the Brussels I Regulation is well defined. The same method should be used to determine the relationship to other Conventions that provide general rules for jurisdiction. There are, however, no other multilateral 'general' International Conventions on jurisdiction that involve EU Member States as well as third States. In each individual case the seised court has to ascertain whether the involved EU Member State might have closed a bilateral International Convention with the involved third State that covers jurisdictional issues in general. If that's the case, then that general International Convention has to be applied (unless it is set aside by more specific Conventions on jurisdiction applicable between the involves States), whereas the Brussels I Regulation is of no importance. For certain (bilateral) Conventions and Agreements between EU Member State, the Brussels I Regulation has explicitly made clear that these no longer apply (see Article 69 BR I), since the matter has to be taken into account with due observance of the Regulation. Only to the extent that a subject-matter is not regulated in such (bilateral) Convention, it remains effective between the participating Contract Parties (Articles 70 and 71 BR I).