Brussels Regulation

Brussels I Regulation applies to “civil and commercial matters whatever the nature of the court or tribunal. ” Discussing Brussels Convention, Quigley argues that “the concept of civil and commercial matters must not be interpreted by a mere reference to the internal law or to the division of jurisdiction between various types of courts… Rather the concept must be regarded as independent and must be interpreted, first, by reference to the objectives and scheme of the Convention and, secondly to the principles which stem from the corpus of the national legal systems”.

Such an opinion is consistent with the ruling of the European Court, which stated that the phrase “whatever the nature of the court or tribunal” demonstrates that “civil and commercial matter” concept “cannot be interpreted solely in the light of the division of jurisdiction between various types of courts existing in certain states.

” In addition, Peter Stone reveals that the European Court has ruled that “the concept of civil and commercial matters, used in Article 1, must be given an autonomous meaning, derived from the objectives and scheme of the instrument and general principals underlying the national legal systems a whole. ” Thus, one may observe that the European Court assigns an important part to domestic jurisdictions. However, according to the European Court, national legal systems are considered secondly after objectives and schemes set by Brussels Convention . Brussels Regulation does not apply to revenue, customs or administrative matters. Such a provision demonstrates that Regulation operates in the area of private law, but not public one. This position is a reflection of “civil and commercial matter concept” and it was proved by the European Court ruling.

Brussels I Regulation does not apply to: the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, 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; and arbitration. Stone explains that the exclusion of the status or legal capacity of natural persons the status or legal capacity of natural persons includes: divorce proceedings, proceeding relating to parental responsibility for children, marriage annulment, and judicial separation. These matters are governed by EC Regulation 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility. Excluded bankruptcy and insolvency proceedings are regulated by EC Regulation 1346 on Insolvency proceedings.

Social security issues should be resolved according to EC Regulation 1408/71 on the Application of Social Security Schemes to Employed Persons, to Self – Employed Persons, and to Members of their Families Moving within the Community. Excluded arbitration matters should be considered within the provisions of New York Convention of 1958 on Recognition and Enforcement of Foreign Arbitral Awards. Jurisdiction Issues Brussels I Regulation establishes general and special jurisdiction. Under general jurisdiction, persons domiciled in Member State should be sued in this state. Persons, who domicile in Member State, but a national of such State, are subject to national rules of jurisdiction in that State.

Special jurisdiction, in particular, foresees cases, when person domiciled in one Member State, can be sued in another Member State: in matters relating to a contract, in the courts for the place of performance of the obligation in question; in tort, delict or quasi-delict matters, in the courts for the place where the harmful event took place or may take; in cases of civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings; regarding a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated.

Iin the case if settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled; and if there is a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question: has been arrested to secure such payment or could have been so arrested, but bail or other security has been given.

In addition, Brussels I Regulation provides that person domiciled in Member State can be sued: in case of class action – in the courts for the place where any one of the defendants is domiciled if claims are so closely associated that it is reasonable to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings; in case of third party proceedings – in the court seised of the original proceedings; in the court in which the original claim’s pending in case of proceeding on a counter-claim arising from the same contract or facts on which the original claim was based; and in contract – related matters, if the action may be combined with an action against the same defendant in matters pertaining to rights in rem in immovable property, in the court of the Member State in which the property is situated.