THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 61 (c) thereof and Article 67 (1) thereof,
Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament, Having regard to the opinion of the Economic and Social Committee, considering the following:
(1) 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 guaranteed . In order to gradually establish such an area, the Community should adopt, inter alia, the measures in the field of judicial cooperation in civil matters which are necessary for the proper functioning of the internal market.
(2) Certain differences between national rules on jurisdiction and the recognition of judgments make the proper functioning of the internal market more difficult. Provisions making it possible to unify the rules on conflict of courts in civil and commercial matters and to simplify the formalities with a view to the rapid and simple recognition and enforcement of judgments emanating from the Member States bound by this Regulation are essential.
(3) This matter falls within the field of judicial cooperation in civil matters within the meaning of Article 65 of the Treaty.
(4) In accordance with the principle of subsidiarity and the principle of proportionality as set out in Article 5 of the Treaty, the objectives of this Regulation cannot be sufficiently achieved by the Member States and can therefore be better achieved at the level community. This Regulation confines itself to the minimum required to achieve those objectives and does not go beyond what is necessary for that purpose.
(5) The Member States concluded on 27 September 1968, within the framework of the fourth indent of Article 293 of the Treaty, the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, which been modified by the conventions relating to the accession of the new Member States to this convention (hereinafter referred to as the “Brussels Convention”). The Member States and the EFTA States concluded on September 16, 1988 the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which is a parallel convention to the 1968 Brussels Convention.. These conventions have been revised and the Council has given its agreement to the content of the revised text. Continuity of the results obtained in the context of this review should be ensured.
(6) In order to achieve the objective of the free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules relating to jurisdiction and the recognition and enforcement of judgments be determined by a legal instrument binding and directly applicable Community.
(7) It is important to include in the material scope of this Regulation most of civil and commercial matters, with the exception of certain well-defined matters.
(8) There must be a link between the disputes covered by this Regulation and the territory of the Member States which it links. The common rules on jurisdiction must therefore apply in principle when the defendant is domiciled in one of those Member States.
(9) Defendants not domiciled in a Member State are generally subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised and defendants domiciled in a Member State not bound by this Regulation must continue to be subject to the Brussels Convention.
(10) For the purposes of the free movement of judgments, judgments given in a Member State bound by this Regulation must be recognized and enforced in another Member State bound by this Regulation, even if the condemned debtor is domiciled in a State third.
(11) The rules of jurisdiction must have a high degree of predictability and be structured around the principle of jurisdiction of the defendant’s domicile and this jurisdiction must always be available, except in a few well-defined cases where the matter in dispute or the party autonomy justifies another connecting factor. With regard to legal persons, the domicile must be defined autonomously so as to increase the transparency of common rules and to avoid conflicts of jurisdiction.
(12) The forum of the defendant’s domicile must be supplemented by other authorized forums because of the close link between the jurisdiction and the dispute or in order to facilitate the proper administration of justice.
(13) With regard to insurance, consumer and employment contracts, it is appropriate to protect the weaker party by means of jurisdiction rules more favorable to its interests than the general rules.
(14) The autonomy of the parties to a contract other than an insurance, consumer and employment contract for which only limited autonomy is provided for in determining the competent court must be respected, subject to the exclusive jurisdiction provided for in these regulations.
(15) The harmonious functioning of justice requires that the possibility of concurrent proceedings be reduced as far as possible and that irreconcilable decisions are not given in two Member States. It is important to provide a clear and effective mechanism for resolving lis pendens and connectedness cases and for dealing with problems arising from national differences as to when a case is considered to be pending. For the purposes of this Regulation, that date should be defined independently.
(16) Reciprocal confidence in justice within the Community justifies that decisions given in a Member State be recognized as of right, without it being necessary, except in the event of a dispute, to have recourse to any procedure.
(17) This same reciprocal confidence justifies that the procedure aimed at making enforceable, in one Member State, a decision given in another Member State should be efficient and rapid. To this end, the declaration relating to the enforceability of a decision should be issued almost automatically, after a simple formal check of the documents provided, without it being possible for the court to raise one of the grounds ex officio. non-performance provided for in these regulations.
(18) Respect for the rights of the defense requires, however, that the defendant may, if necessary, lodge an appeal, examined in an adversarial manner, against the declaration establishing the enforceability, if he considers that one of the grounds for non-compliance. execution is established. A right of appeal must also be granted to the applicant if the declaration establishing the enforceability has been refused.
(19) To ensure the necessary continuity between the Brussels Convention and this Regulation, it is appropriate to provide for transitional arrangements. The same continuity must be ensured with regard to the interpretation of the provisions of the Brussels Convention.by the Court of Justice of the European Communities and the 1971 Protocol must continue to apply also to proceedings already pending on the date of entry into force of this Regulation.
(20) The United Kingdom and Ireland, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, have notified their wish to participate in the adoption and application of this Regulation.
(21) Denmark, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, is not taking part in the adoption of this Regulation, which is therefore not binding not Denmark and is not applicable to it.
(22) Since the Brussels Convention is in force in relations between Denmark and the Member States bound by this Regulation, this Convention and the 1971 Protocol continue to apply between Denmark and the bound Member States by the present regulations.
(23) The Brussels Convention shall also continue to apply with regard to the territories of the Member States which fall within the territorial scope of this Convention and which are excluded from this Regulation by virtue of Article 299 of the Treaty.
(24) The same concern for consistency requires that this Regulation not affect the rules on jurisdiction and the recognition of decisions contained in specific Community instruments.
(25) The respect of the international commitments entered into by the Member States justifies that this Regulation does not affect the conventions to which the Member States are parties and which relate to special matters.
(26) The necessary relaxations should be made to the rules of principle provided for in this Regulation, in order to take account of the procedural particularities of certain Member States. To this end, certain provisions provided for in the Protocol annexed to the Brussels Convention should be introduced into the Regulation .
(27) In order to allow a smooth transition in certain areas which were the subject of special provisions in the Protocol annexed to the Brussels Convention, this Regulation provides, during a transitional period, for provisions taking into account the specific situation in certain States members.
(28) No later than five years after the entry into force of this Regulation, the Commission will present a report on its application and, if necessary, propose adaptation proposals.
(29) The Commission should amend Annexes I to IV relating to national rules of jurisdiction, competent courts or authorities and remedies on the basis of the amendments sent by the Member State concerned. The amendments made to Annexes V and VI will have to be adopted in accordance with Council Decision 1999/468 / EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission,