The Brussels I Regulation: Regulation (EC) 44/2001

Proceeding from the view that it had been given power to legislate directly in the field of civil jurisdiction and judgments, the Council of the European Union adopted a Regulation which took direct effect in the Member States of the European Union. The term ‘Member States’, when used in this context, originally excluded Denmark, which chose not to be bound by the Regulation until 1 July 2007. It was published in the Official Journal, and took effect in all Member States on 1 March 2002. Its practical effect was to supersede the Brussels Convention as between the Member States in relation to proceedings instituted on or after that date. It was and still is, occasionally and altogether misleadingly, referred to in England as ‘the Judgments Regulation’, but the nomenclature of ‘the Brussels I Regulation’ was always proper and is now universal.

There were a number of occasions for minor and other amendments to the Brussels I Regulation. First, some minor corrections were made to the Regulation by a Corrigendum, and minor alterations by Regulation. Second, on 1 May 2004, ten States acceded to membership of the European Union: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. The necessary adjustments to the Regulation, which were mechanical and procedural, were made by the Act of Accession which was published in the Official Journal. Third, on 1 January 2007, Bulgaria and Romania acceded to membership of the European Union. The necessary technical adjustments to the Brussels I Regulation were made by Regulation; so also, fourth, when Croatia acceded to membership on 1 July 2013.

The Brussels I Regulation ‘recast’: Regulation (EU) 1215/2012

A project to refurbish the Brussels I Regulation was commenced after five years of operation of Regulation 44/2001. The principal basis for the work was a Report coordinated at the University of Heidelberg.^[1] The broad aims of the recast Regulation 1215/2012 were less wide-ranging than the Heidelberg Reporters may have proposed, but they included four points above all: (i) to make the enforcement of judgments faster and more straightforward; (ii) to give greater priority to the court designated by an agreement on jurisdiction; (iii) to reduce the complications caused by the untidy relationship between arbitration and the Regulation; and (iv) to take a step towards the harmonisation of rules for taking jurisdiction over defendants who were not domiciled in any Member State. Of these, the first was successful and rational; the second successful if less obviously rational; the third only partly successful; and the fourth a failure because it appeared to be rather ahead of its time. The Regulation was published in 2012, which meant that there was plenty of time to prepare for its coming into force on 10 January 2015.

Secondary sources of law

These legislative texts were or are, as the case may be, the primary source of the rules on jurisdiction and the effect of foreign judgments. They were written in all official languages of the European Union, and as a matter of European law, all of them were equally authentic. In general, and from day to day, the English language versions suffice.

The Brussels and Lugano Conventions were each supplemented by a Report giving background and explanation to the text. These Reports had significant influence in the interpretation of the Conventions and therefore bear on the construction of corresponding provisions of the Brussels I Regulation. The Brussels Convention was accompanied by the Report signed by Mr Jenard; the Accession Convention for the United Kingdom by the Report signed by Professor Peter Schlosser; the Accession Convention for the Hellenic Republic by the Report of Professors Evrigenis and Kerameus; the Accession Convention for Portugal and Spain by the Report of Messrs Almeida Cruz, Desantes Real and Jenard; the Lugano Convention by the Report of Messrs Jenard and Moller; and the Lugano II Convention by the

Report signed by Professor Pocar.^[2] No such document accompanied the Brussels I Regulation, however.

So far as English law is concerned, the legislation which implemented the relevant Conventions expressly provided that the English courts were entitled to consider the Reports and to give them such weight as was appropriate in the circumstances. In practice, the English courts tended to follow the advice given in the Reports. So did the European Court: there were rather few cases in which the Court departed from the expressed views of the Reporter.

• [1] Published as Hess, Pfeiffer & Schlosser, The Brussels I Regulation 4412001 (Beck, Munich, 2008). 2 Denmark agreed to be bound by Regulation 1215/2012 by separate agreement with the European Union: [2013] OJ L79/4. An amendment to the original text of Regulation 1215/2012, to provide for the Unified Patent Court, was made by Regulation 542/2014, [2014] OJ L163/1. 3 After Completion Day, only the English language versions will have that status. However, if the United Kingdom were to accede as an independent State to the Lugano Convention, its Art. 79 provides that the 25 language versions in which that Convention was drawn up are equally authentic. 4 In England, it is usual to refer to these as ‘the Jenard Report’, ‘the Schlosser Report’, etc: see Section 3(3) of the 1982 Act, as amended. 5 C/C-533/07 Falco Privatstiftung v Weller-Lindhorst [2009] ECR 1-3327. 6 [1979] OJ C59/1. 7 [1979] OJ C59/71. 8 [1986] OJ C298/1. 9 [1990] OJ C189/35. 10 [1990] OJ Cl89/57.
• [2] [2009] OJC319/1. 2 See, for example, Section 3 of the 1982 Act. 3 And as a Treaty to which the European Union was party, the Lugano II Convention became an instrument which the European Court had jurisdiction to interpret. 4 If the European Court considers that the answer to the national court’s question is clear, it may dispose of the matter by making a reasoned order without the need for a hearing: see Art. 99 of the Rules of Procedure of the Court. 5 The national court was entitled to ask for the proceedings before the European Court to be expedited, but in the context of the Brussels I Regulation such requests were almost always rejected. 6 The decisions of national courts, and the writings of commentators, play a gap-filling role.