Notes Brussels PDF

*Notes brussels :* **Art 24** The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties: +-----------------------------------+-----------------------------------+ | (1) | in proceedings which have as | |...

*Notes brussels :* **Art 24** The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties: +-----------------------------------+-----------------------------------+ | (1) | in proceedings which have as | | | their object rights *in rem* in | | | **immovable** property or | | | tenancies of immovable property, | | | the courts of the Member State in | | | which the property is situated.- | | | forum rex citi -- courts of the | | | place where the thing is | | | situated, similar provision art 4 | | | of Rome 1 regulation re rights in | | | rem - lex ray citi in the rome 1 | | | context, right in rem being the | | | right we exert over a thing in | | | contrary to personal rights | | | | | | However, in proceedings which | | | have as their object tenancies of | | | immovable property concluded for | | | temporary private use for a | | | maximum period of six consecutive | | | months, the courts of the Member | | | State in which the defendant is | | | domiciled shall also have | | | jurisdiction, provided that the | | | tenant is a natural person and | | | that the landlord and the tenant | | | are domiciled in the same Member | | | State; | +-----------------------------------+-----------------------------------+ ----- --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- (2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law; in all these cases, the only competent court do deal with that sort of debate is the one in which the organisation has its seat e.g I am incorporating Spanish corporate law and the type of statue and bylaws that the company has passed established for e.g that black people cannot be a partner of this organisation, under Spanish law this would be blatantly null and void, in order to discuss this issue we would need to appear before the court of the MS where this company has its seat ----- --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ (3) in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept; logical when discussing validity of entries of registers for MS where that member state is kept ----- ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ +-----------------------------------+-----------------------------------+ | (4) | in proceedings concerned with the | | | registration or validity of | | | patents, trademarks, designs, or | | | other similar rights required to | | | be deposited or registered, | | | irrespective of whether the issue | | | action or litigation concerning | | | application or validity etc is | | | raised by way of an action or as | | | a defence, the courts of the | | | Member State in which the deposit | | | or registration has been applied | | | for, has taken place or is under | | | the terms of an instrument of the | | | Union or an international | | | convention deemed to have taken | | | place. This was modified in | | | recast - novelty, relevant point | | | here debate is confined to | | | registration or validity of IP | | | rights. E.g I am the title holder | | | of a patent right registered in | | | France Italy and Spain, you are | | | my licensee, I believe that you | | | have breached the agreements | | | established in this licence | | | contract whereby you were only | | | allowed to produce the type of | | | iron that is a certain procedure | | | that I patented, I sustain you | | | produced more than this and that | | | breach of license agreement | | | entitled me to terminate and ask | | | for compensation of damages, you | | | are domiciled in Rome, what is | | | the competent court? Italy, | | | because it doesn't concern the | | | registration of validity of | | | patent, the place of registration | | | of the patent would play no role | | | here -- irrelevant, you are just | | | breaching a purely contractual | | | agreement, subject matter | | | determines competent court here | | | \*\*\* | | | | | | Without prejudice to the | | | jurisdiction of the European | | | Patent Office under the | | | Convention on the Grant of | | | European Patents, signed at | | | Munich on 5 October 1973, the | | | courts of each Member State shall | | | have exclusive jurisdiction in | | | proceedings concerned with the | | | registration or validity of any | | | European patent granted for that | | | Member State; | +-----------------------------------+-----------------------------------+ +-----------------------------------+-----------------------------------+ | (5) | - in proceedings concerned with | | | the enforcement of judgments, | | | the courts of the Member | | | State in which the judgment | | | has been or is to be | | | **enforced**. e.g French | | | court has issued a judgement | | | where a French company gets a | | | judicial decision whereby I | | | am obliged to pay money to | | | French company, I am | | | domiciled in Valencia, if | | | French company wants to | | | enforce against my assets | | | here in Spain, it is not | | | where the judgement was | | | issued, but ENFORCED, so the | | | Spanish courts will be | | | competent, French court has | | | no power at all to order | | | enforcement in Spain, has no | | | powers beyond the French | | | frontier | | | | | | - Deals only with judgements | | | not non judicial titles e.g | | | abstract recognition of debt | +-----------------------------------+-----------------------------------+ \*\*\* to continue analysis here, same licence same parties, but you have reached the conclusion that the license is null and void because the patent was null and void, you initiate proceedings asking the court of a statement declaring the nullity and voidance of the patents, it is registered in France, Spain and Italy , what court do I go to? - I am developing my business in Italy -- this is where license was in play, so would go to the courts in Italy, domiciled in Rome, it is affecting the patent I licenced in Italy, title holder domiciled in Valencia, courts would still be Italy You are Italian company domiciled in Rome, I am Spanish company domiciled in Valencia, we have entered into agreement where you are allowed to commercially exploit my patent in Lithuania where it is registered, you have breached in production of too much than you were organised, I want to sue you, what is the competent court to deal with my claim? Italian, defendants domicile because not relative to registration or validity of trademark, no reason to apply any exclusive ground if jurisdiction -- this is a contractual relationship which cannot trigger this, therefore must follow defendants domicile - But now you the Italian company receiving my claim , you now need to defend yourself, which is based on the nullity of my patent so that there are no contractual obligations flowing from the agreement -- patent is only registered in Lithuania, the Lithuanian courts would now have competence, and Italian company cannot display thus defence to the Italian court because 24(4), this poses a complication in the defence of the Italian company because will need to simultaneously use Italian and Lithuanian courts Most important thing is to understand the subject matter of the claim! **Lecture 11/12/2024** Exclusive ground of jurisdiction - Regardless of defendants domicile - Only one court being competent For paragraph(para) 4 above Action vs defence -- in both of these the exclusive ground of jurisdiction applies -- irrelevant whether we are attacking, trying to defend our rights, or defending ourselves from an attack from the claimant Hierarchical relationship: Also have prorogation of jurisdiction -- in article 25, which comes next -- voluntary grounds of jurisdiction - Then comes special grounds of jurisdiction around the subject matter of the case **Art 25** was amended as per the recast -- express prorogation of jurisdiction, express because it is explicit between the parties, but for form e.g in para 1 is not necessarily in writing 1. If the parties, regardless of their domicile we may apply art 25, 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 describing an agreement between the parties, identifying a court/the court which will be competence to settle action/potential dispute, that court or those courts shall have jurisdiction, unless the agreement is null and void **as to its substantive validity under the law of that Member State** addition of recast. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either: selected court of the parties must be a member state \(a) in writing or evidenced in writing; \(b) in a form which accords with practices which the parties have established between themselves; or a. in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. When it comes to the form of an agreement concerning jurisdiction, that form will be valid if it is in accordance with the usage of which the parties are or ought to be aware or is widely known -- this is quite rare Need to know brussels law has specific provisions for consumer law regulations In spite of freedom of choice principle in art 3, enshrined in art 25, under same logic, if one of the parties is weaker -- the consumer, the Dynamic established in brussels 1 is required to protect that party, limiting the freedom of the parties of jurisdictional issues -- same as rome 1 regulation did 1. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'. 2. The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between those persons or their rights or obligations under the trust are involved. 3. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24. 4. An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid. This provision has clear consequence -- even if a party is questioning the validity of the contract, the jurisdictional agreement shall be considered independent from the contract as to still confer jurisdiction on the competent court, this clause survives under this regulation Substantive dimension of the agreement -- right and obligation of buyer and seller to deliver the goods pay the price etc Conflictive dimension -- problems regarding jurisdiction According to this approach -- consent is different in these two dimensions to the same contract **Art 26** -- implicit/tacit prorogation of jurisdiction 1. Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance to appear in court -- personarse in Spanish (no English expression, means to make your own person before the court, make court aware of your persona as a party even if you haven't answered a claim) or comparacer shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 24. Clients will decide to reach an agreement or even to give up legal position before initiating legal proceedings in really expensive courts e.g London new York etc, procedural questions when deciding which court will have jurisdiction In common law -- enjoy procedural powers, e.g discovery process -- through which both parties must reveal every evidence to do with the case whether they are benefitting or detrimental to its own case, therefore to litigate infront of a London court your client must be aware they would have to follow this procedure, won't happen in continental European courts unless specific request by court to do so Appearance will not pre-empt jurisdiction of court when you are questioning the competent court, to question merits of case would be assumption from the court of jurisdiction 2\. In matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the defendant, the court shall, before assuming jurisdiction under paragraph 1, ensure that the defendant is informed of his right to contest the jurisdiction of the court and of the consequences of entering or not entering an appearance. Called prorogation because suggests the natural competence of the courts would not be the one resulting from this jurisdictional agreement, would be for e.g the defendants domicile -- widening something Special grounds of jurisdiction **art 7 and 8 -- very general and cover business to business relationships** A person domiciled in a Member State may a possibility, choice for the claimant, where to sue the defendant be sued in another Member State: Claimant can choose between - Defendants domicile -- provided it is a member state 1. \(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; seen as obscure - This provision deals with contractual relationships, we are trying to find out court flowing from contractual relationship - Obligations in sale of goods -- paying price and delivery of the good - If buyer is claiming goods did not comply with quality stipulated in contract, place of performance to be checked is the one of the sellers obligation, but if the seller is claiming against the buyer that the price was not paid you need to check where is the place of performance of the obligation in question -- namely the buyers obligation, those would then be the courts -- this is surprising, competent court could be different depending on the specific obligation you are articulating in the claim even if it is the same contract Sale of goods and provision of services have their own formula- If not related to these two, then you must apply the first formula above \(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: if this doesn't apply, then a does -- **continued in next lecture below** Forum shopping- parties can explore what court will be most convention to their interest -- brussels 1 regulation wants to reduce this notion for the sake of legal certainty to understand before which court will we be transferred to in order to keep a litigation, but some articles e.g 7 allow the claimant to choose --- in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, --- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided; (c) if point (b) does not apply then point (a) applies; **[Insurance contract, consumer contracts, contracts of employment]** -- will not look at but I need to for exam -- detached to general regime of determination of jurisdiction, be aware we have special rules to be followed in this instance **[Lecture, 12/12/2024 ]** General: - Defendants domicile -- golden rule is art 4 - For the claimant to choose between art 4 (D domicile) or then art 7 24 - Jurisdiction - international judicial competence, formula through which we distribute jurisdiction among states, i.e what Brussels Ibis does - Territorial competence is the way in which a single state within its territory distributes the competence of the different courts we have in that state, brussels does not identify this specific court within a state territory, that is then national procedure Continued with **art 7** -- starts from under letter b - **in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,** - indicating competent court in jurisdictional and territorial terms e.g imagine we have a contract subject matter is sale of tomatoes to be sold by a Spanish company who's legal domicile is Valencia, to be sold to company in Israel -- the buyer, domiciled there, then there is a problem with this transaction being the quality of the tomatoes (which had to be delivered in Cairo, Egypt), you need to identify the competent jurisdiction to deal with this dispute and the law applicable to the contract, must confirm jurisdiction first because XXX brussels prevails over national law and this needs to be checked first but defendant must be domiciled in a member state is pre condition for brussels, to check e.g if Spain is competent I need to apply brussels regulation - Art 24 Exclusive grounds and art 25 prorogation apply even if defendant not domiciled in a member state - We would then need to check the laws of Israel and Egypt to see if competent -- we don't know this - Could be justified through art 4 -- domicile of defendant - But you would want to choose the law which is the most convenient for your client - Usefulness of a judgement relies always in its enforceability otherwise you have nothing except an order, if it is enforceable able you will be entitled to use power of the state to materialise that judgement =, usually this is CoJ of the state where you want to enforce the judgement, no Israeli court able to order Spanish police to do something etc, so reasoning we need to apply is if this is civil law commercial matter your client wants to collect damages -- need to freeze assets and essential question is where are these assets belonging to the defendant -- this is where you should sue - In EU remember there are provisions which allow you to take judgement from one state and apply in another - We also need to determine law applicable to this -- need to check Rome 1 Regulation in this instance, if this was in Israel, we would have to look to Israeli national legislation, competent court has to be a member of the EU -- not an international treaty, just EU law - But competent court here is Spain -- so Rome 1 can apply regardless of Israel being involved, in art 25 Rome 1 says if there are other treaties which apply then Rome 1 does not overrule this, therefore we are applying Vienna here -- must check scope - If we decide Vienna complies then the law applicable would be Vienna, not laws of Spain or Israel or Egypt -- it is Vienna -- international convention of sale of goods - Territorial condition here is fulfilled, objective condition -- sale of goods -- we know that goods for purposes of Vienna are tangible and moveable -- therefore tomatoes are relevant here -- Vienna applies, rome 1 does not apply - Competent courts here are spain -- law applicable is Vienna Podcast:   You know, the Brussels I Regulation has a lot to do with where you can sue someone in the EU, right? But did you know it has specific rules about when you \*have\* to sue in a particular country, like for property matters?   That\'s interesting. So, if I\'m dealing with real estate in Italy, I\'d have to sue there, regardless of where the parties are located?   Exactly. The Regulation has these exclusive jurisdiction rules, and they apply even if the parties normally could have sued in another EU country. It\'s a way of ensuring that certain types of cases are handled by courts close to the subject matter.   So, it\'s not just about who you\'re suing, but what the case is actually about. That makes sense.   Right! We\'ll be diving into the details of these exclusive jurisdiction sections, the more common general jurisdictional rules, and even how agreements can be made to address jurisdiction in individual cases. So get ready for a deep dive into the Brussels I Regulation.   So, we\'ve been talking about the Brussels I Regulation, and how it generally governs jurisdiction in the EU, right?   Right! You know, it\'s a complex area, with many rules, but it\'s really important for international disputes.   Exactly! And there\'s this key part we need to cover, which is about what court \*must\* hear a case no matter what.   Okay, I\'m getting the feeling \'exclusive jurisdiction\' is really important here. Tell me more!   That\'s right. Article 24 of the Brussels I Regulation outlines these exclusive jurisdiction rules, and they apply even if the normal rules wouldn\'t require you to sue in that country.   Okay, so it\'s not just about where the parties live, but about the type of case. Can you give me an example?   Sure! Imagine you\'re suing someone about ownership of a piece of land in Italy. It doesn\'t matter where you or the other party are located, you have to sue in Italy. That\'s because Italian courts have exclusive jurisdiction over that type of case.   Hmm, I see. So it\'s about making sure the court is close to the subject matter. It\'s designed to ensure that cases get handled by the most appropriate court.   Exactly! And there are a few more situations covered by exclusive jurisdiction. For example, disputes about the validity of a company are handled by the courts in the country where that company is seated.   Got it\... this is really helpful because it clarifies where you have to sue, no matter where you are.   Yeah, definitely. Exclusive jurisdiction is about the \*type\* of case, and it\'s important to read the specific wording in the Brussels I Regulation carefully.   You\'re right! It seems like the first thing to do is to figure out what the case is really about. Which rules apply depends on the specific subject matter.   Exactly! You need to analyze the specific issue and think about which exclusive jurisdiction rule applies. And remember, even if you have a case about intellectual property, like a patent, the exclusive jurisdiction rule only applies if it\'s about the registration or validity of the actual patent, not just a contract dispute about using it.   Okay, that\'s a really good point. So, just because you\'re dealing with IP doesn\'t mean exclusive jurisdiction applies. It\'s about the specific claim.   Right! If it\'s just about a contract dispute, then the normal rules for jurisdiction apply based on where the other party lives.   So, you have to figure out which subject matter rules apply, then check the location rules. That\'s a good start.   That\'s a good way to think about it. Make sure you go through the whole process and get it right.   I\'m starting to understand this a lot better. It\'s about not just the defendant's domicile, but also the subject matter of the dispute.   Right! That\'s why exclusive jurisdiction is so important. It\'s like a super rule that overrides the general ones.   So, if exclusive jurisdiction doesn\'t apply, then we move on to the regular rules of jurisdiction, where you can sue the defendant where they live or where the contract was performed.   Exactly! These general rules under articles 7 and 8 are really common in business cases, especially in business-to-business relationships.   Hmm, that\'s good to know, but what about these voluntary agreements, is that covered too?   Good question! We\'ll get into that next. It\'s all about agreements on jurisdiction, where parties can basically choose which court will hear their case. This is called \'prorogation of jurisdiction\' and it\'s outlined in Article 25.   So, they can basically agree to say they\'ll only sue in a certain place, even if it\'s not where the defendant lives?   That\'s right! But it\'s not as simple as just adding a clause to a contract. These agreements need to be in writing, or follow a certain pattern so that you can be sure both sides actually agreed.   Okay, I see. So, it\'s not just about the terms of the contract, but also how the agreement on jurisdiction is made.   Exactly! That\'s really important to keep in mind when you\'re looking at these agreements. And remember, this type of jurisdiction agreement can be separate from the contract itself, meaning even if you have a problem with the underlying contract, the jurisdiction agreement may still stand.   That\'s very useful. But what about if you don\'t have a written agreement, can you still agree to a specific court?   Great question! That\'s where tacit prorogation comes in. Article 26 deals with situations where the defendant appears in court, without specifically contesting the court\'s jurisdiction. This is often seen as implying they agree to being sued there.   Okay, so just participating in the case can imply you consent to being sued there.   That\'s right! But there are some exceptions, such as if the defendant is a consumer or policyholder, as they need to be aware of the rules about contesting jurisdiction in these specific situations.   Okay, so basically, you have to be careful, because showing up in court for a different reason might imply that you agree to being sued there.   Yep! And think of it this way, this \'tacit\' consent isn\'t just about appearing in court, it\'s about specifically consenting to the \*court\* itself, not just the case.   Got it! That\'s a really important distinction. So, you can agree to the case, but not the court itself. It can get complicated, but it makes sense when you think about it.   Yeah, definitely! It\'s about carefully scrutinizing the situation and seeing if consent was specifically given to the court handling the case. It\'s about protecting all parties\' rights.   So, we covered exclusive jurisdiction, which tells you \*where\* you \*must\* sue, then regular jurisdiction, which gives you multiple options, and then the possibility of agreeing to a specific court. It\'s really all about careful analysis.   Right! It\'s essential to analyze the specific factual circumstances to determine which rules apply - even if they seem like they\'re just about location. The Brussels I Regulation is a major part of EU law, so getting it right is crucial.   You\'re right. It\'s a valuable tool for resolving disputes and getting the right court involved. This is really useful, thanks for breaking it down!