28 Feb 2017
A comparaison between Regulation (EC) N° 44/2001 of 22 December 2000 and Regulation (EC) N° 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of jugements
The purpose of this paper is to give an overview of the main changes made by Regulation (EC) N° 1215/2012, which entered into force on 10 January 2015 to replace Regulation (EC) N° 44/2001.
Prorogation of jurisdiction:
Pursuant to Regulation (EC) N° 44/2001, agreements conferring jurisdiction could only be considered valid if one of the parties was domiciled within the EU.
This is no longer the case.
Consumers, insured individuals and employees must be informed of their right to contest the jurisdiction of the court
Article 26, paragraph 2 of Regulation (EC) N° 1215/2012 is new in that it provides that some defendants must be informed of their right to contest the jurisdiction of the court seised of the dispute.
When the defendant is a policy holder, an insured, a beneficiary of the insurance contract, an injured party, a consumer or an employed worker, then the court must, prior to assuming jurisdiction, ensure that the defendant has been duly informed of his/her right to contest jurisdiction, as well as of the consequences of appearing or failing to appear.
The court chosen by the parties pursuant to an agreement conferring jurisdiction shall have priority to decide whether it has jurisdiction or not:
This new clause is introduced in Article 31 of Regulation (EC) N° 1215/2012, which provides as follows:
"where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement".
Lis pendens:
Both regulations set out a similar definition to pinpoint the time when a court is seised:
Article 32-1 of Regulation (EC) N° 1215/2012 supplements Article 30 of Regulation (EC) N° 44/2001 by specifying the various ways in which courts within EU Member states can be seised, in order to avoid any doubt as to when a court is actually seised of a dispute.
Courts are deemed to be seised:
Prorogation of jurisdiction:
Pursuant to Regulation (EC) N° 44/2001, agreements conferring jurisdiction could only be considered valid if one of the parties was domiciled within the EU.
This is no longer the case.
Consumers, insured individuals and employees must be informed of their right to contest the jurisdiction of the court
Article 26, paragraph 2 of Regulation (EC) N° 1215/2012 is new in that it provides that some defendants must be informed of their right to contest the jurisdiction of the court seised of the dispute.
When the defendant is a policy holder, an insured, a beneficiary of the insurance contract, an injured party, a consumer or an employed worker, then the court must, prior to assuming jurisdiction, ensure that the defendant has been duly informed of his/her right to contest jurisdiction, as well as of the consequences of appearing or failing to appear.
The court chosen by the parties pursuant to an agreement conferring jurisdiction shall have priority to decide whether it has jurisdiction or not:
This new clause is introduced in Article 31 of Regulation (EC) N° 1215/2012, which provides as follows:
"where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement".
Lis pendens:
Both regulations set out a similar definition to pinpoint the time when a court is seised:
Article 32-1 of Regulation (EC) N° 1215/2012 supplements Article 30 of Regulation (EC) N° 44/2001 by specifying the various ways in which courts within EU Member states can be seised, in order to avoid any doubt as to when a court is actually seised of a dispute.
Courts are deemed to be seised:
- "at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or
- if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the claimant has not subsequently failed to take the steps he was required to take to have the document lodged with the court».
New requirement to distinguish between lis pendens within the EU and lis pendens with a third state:
This difference must be made as set out under Article 33 of Regulation (EC) N° 1215/2012.
The judge in the Member state must assess the decision which is pending in the third state to determine whether he may stay the proceedings or not.
Related actions:
As for lis pendens, Regulation (EC) N° 1215/2012 distinguishes between i) related actions between courts within the EU and ii) related actions between a court in a Member state and a court in a third state.
If an action is pending before a court in a third state when a court in a Member state is seised of a claim which is related to the one in the third state, then the court in the Member state may stay or end the proceedings as set out in Regulation (EC) N° 1215/2012.
Recognition and enforcement of decisions rendered by courts within Member States:
Article 39 of Regulation (EC) N° 1215/2012 does away with the need to institute the proceedings upon ex parte application and to perform a formal review as formerly provided for in Article 38 of Regulation (EC) N° 44/2001.
A decision rendered in a Member state, which is enforceable in that Member state, is now enforceable in other Member states without the need to be declared so by court.
A new Section 3 ("Refusal of recognition and enforcement") sets out which procedural steps must be followed and which grounds may be put forward to apply for refusal of recognition or enforcement of a court decision rendered in a Member state.
A new Section 3 ("Refusal of recognition and enforcement") sets out which procedural steps must be followed and which grounds may be put forward to apply for refusal of recognition or enforcement of a court decision rendered in a Member state.
Nasser Merabet
Attorney at law
avocat@nmerabet.fr
Attorney at law
avocat@nmerabet.fr