Case Law 1968 Brussels Convention
Protocol to the 1968 Brussels Convention
ECJ
13 October 2005 ‘Scania v Rockinger’ (Case
C-522/03, ECR 2005 p. I-08639) 
Article 27(2) of the 1968 Brussels Convention and the first paragraph of Article IV of the Protocol annexed to that Convention, must be interpreted as meaning that, where a relevant international convention, such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, is applicable between the State in which the judgment is given and the State in which recognition is sought, the question whether the document instituting the proceedings was duly served on a defendant in default of appearance must be determined in the light of the provisions of that convention, without prejudice to the use of direct transmission between public officers, where the State in which recognition is sought has not officially objected, in accordance with the second paragraph of Article IV of the Protocol. The two methods of transmitting documents provided for by Article IV of the Protocol annexed to the Convention are exhaustive, in the sense that it is solely where neither of those two options is usable that transmission may be effected in accordance with the law applicable in the court in the State in which the judgment was given (see paras 22, 28, 30, operative part).
ECJ 26 May 1981 ‘Criminal proceedings Rinkau’ (Case 157/80, ECR 1981 Page 01391)
1. The concept of an offence which was not intentionally committed appearing in Article II of the Protocol annexed to the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters must be regarded as an independent concept which must be explained by reference, first, to the objectives and scheme of the Convention and, secondly, to the general principles which the national legal systems have in common. It covers any offence the legal definition of which does not require, either expressly or as appears from the nature of the offence defined, the existence of intent on the part of the accused to commit the punishable act or omission.
2. The right to be defended without appearing in person, granted by Article II of the aforementioned Protocol, applies in all criminal proceedings concerning offences which were not intentionally committed, in which the accused's liability at civil law, arising from the elements of the offence for which he is being prosecuted, is in question or on which such liability might subsequently be based.
ECJ 6 May 1980 ‘Porta v Prestige’ (Case 784/79, ECR 1980 Page 01517)
The second paragraph of Article I of the Protocol annexed to the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted as meaning that a clause conferring jurisdiction within the meaning of that provision may not be considered to have been expressly and specifically agreed to by a person domiciled in Luxembourg unless that clause, besides being in writing as required by Article 17 of the Convention, is mentioned in a provision specially and exclusively meant for this purpose and which has been specifically signed by the party domiciled in Luxembourg; in this respect the signing of the contract as a whole does not in itself suffice. It is not, however, necessary for that clause to be mentioned in a document separate from the one which constitutes the written instrument of the contract.
Case Law 1968 Brussels Convention
Protocol on the interpretation by the Court of Justice
ECJ
5 February 2004 ‘Rederiforening v LO i Sverige’ (Case
C-18/02, ECR 2004 p. I-01417)
The Arbejdsret, a Danish court which has exclusive jurisdiction as a court of first and last instance in respect of certain disputes in the sphere of employment law, in particular those relating to the legality of industrial action seeking a collective agreement, may refer a question to the Court of Justice for a preliminary ruling under the second indent of Article 2(1) of the Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcements of Judgments in Civil and Commercial Matters. Although that court is not mentioned in Article 2(1) and does not sit in an appellate capacity, as required in Article 2(2), which lists the courts of the Contracting States which may request the Court of Justice to give preliminary rulings on questions of interpretation of the Brussels Convention, a ruling declaring that that court has no jurisdiction to refer questions to the Court of Justice for a preliminary ruling would have the unacceptable result that in Denmark questions concerning the interpretation of the Brussels Convention, arising in certain actions relating to employment law, could never be the subject of a reference for a preliminary ruling (see paras 14-18).
ECJ
9 December 2003 ‘Gasser v MISAT’ (Case
C-116/02, ECR 2003 p. I-14693)
A national court may, under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels refer to the Court of Justice a request for interpretation of the Brussels Convention, even where it relies on the submissions of a party to the main proceedings of which it has not yet examined the merits, provided that it considers, having regard to the particular circumstances of the case, that a preliminary ruling is necessary to enable it to give judgment and that the questions on which it seeks a ruling from the Court are relevant. It is nevertheless incumbent on the national court to provide the Court of Justice with factual and legal information enabling it to give a useful interpretation of the Convention and to explain why it considers that a reply to its questions is necessary to enable it to give judgment (see para. 27, operative part 1).
ECJ
8 May 2003 ‘Gantner v Basch’ (Case C-111/01,
ECR 2003 p. I-04207)
In the context of the cooperation between the Court of Justice and the national courts established by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention, in exceptional circumstances the Court can examine the conditions in which a case has been referred to it by the national court, in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in the preliminary-ruling procedure requires the national court, for its part, to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions. In order to enable the Court to provide a useful interpretation of Community law, it is essential for the national court to explain why it considers that a reply to its questions is necessary to enable it to give judgment. A question referred for a preliminary ruling is therefore inadmissible if it does not provide the Court with sufficient information to indicate how an answer to that question is necessary (see paras 34-35, 37-38, 40-41).
ECJ 22 March 2002 ‘Reichling v Wampach’ (Case C-69/02, ECR 2002 p. I-03393)
The Court's jurisdiction to interpret the 1968 Brussels Convention is defined by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention (OJ 1975 L 204, p. 28) as amended by the Accession Conventions (the Protocol). The Protocol reserves to certain courts, referred to in Article 2, the power to request the Court of Justice to give preliminary rulings on questions of interpretation of the Convention, so that it is appropriate, in that regard, to examine whether the Court of Justice has jurisdiction to answer the questions which have been referred. Article 2(1) and (3) of the Protocol set out expressly and exhaustively - the first directly, the second by reference to Article 37 of the Convention - the courts which may make references to the Court. Article 2(2) adds that the courts of the Contracting States sitting in an appellate capacity may also do so.
Luxembourg Tribunaux de paix are not mentioned either in Article 2(1) of the Protocol or in Article 37 of the Convention. Furthermore, it is clear from Article 2 of the new Luxembourg Civil Procedure Code in conjunction with Article 9 of the Luxembourg Law of 11 November 1970 on assignment and attachment of salaries, pensions and investment income that, when the Tribunal de paix rules on the validity of an attachment order for a sum exceeding the limit of its jurisdiction of last resort, its decision is subject to appeal. In the present case, it follows both from the subject-matter of the main proceedings, as set out by the national court, and from further details in that regard given by the judgment referring questions to the Court, that the Tribunal de paix is sitting as a court of first instance. It follows that, in the main proceedings, the Tribunal de paix de Luxembourg may not request the Court to give a preliminary ruling on the interpretation of the Convention. In those circumstances, Article 92(1) of the Rules of Procedure must be applied and it must be held that the Court clearly has no jurisdiction to rule on the questions put by the Tribunal de paix de Luxembourg.
ECJ 22 March 2002 ‘Marseille Fret v Seatrano’ (Case C-24/02, ECR 2002 p. I-03383)
The jurisdiction of the Court to interpret the 1968 Brussels Convention is established by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention (OJ 1975 L 304, p. 50), as amended by the Accession Conventions (the Protocol). Unlike Article 234 EC, which is not applicable, the Protocol reserves to certain courts, referred to in Article 2, the power to request the Court of Justice to give preliminary rulings on questions of interpretation of the Convention, so that it is appropriate, in that regard, to examine whether the Court has jurisdiction to answer the questions which have been referred.
Article 2(1) and (3) of the Protocol set out expressly and exhaustively - the first directly, the second by reference to Article 37 of the Convention - the courts which may make references to the Court. Article 2(2) adds that the courts of the Contracting States sitting in an appellate capacity may also do so.
French Tribunaux de commerce are not mentioned in Article 2(1) of the Protocol or in Article 37 of the Convention. Furthermore, according to the file on the case in the main proceedings, the judgment referring questions to the Court was given in proceedings at first instance. It follows that, in the main proceedings, the Tribunal de commerce de Marseille may not request the Court to give a preliminary ruling on the interpretation of the Convention.
As regards Regulation No 44/2001, it is sufficient to observe that it only entered into force on 1 March 2002, after the judgment referring questions to the Court was delivered. In addition, since the regulation was adopted on the basis of Article 61(c) EC, it follows from Article 68(1) EC that only a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law has jurisdiction to request the Court to give a preliminary ruling on its interpretation. In those circumstances Article 92(1) of the Rules of Procedure must be applied, and it must be held that the Court clearly has no jurisdiction to rule on the questions put by the Tribunal de commerce de Marseille.
ECJ
11 May 2000 ‘Renault v Maxicar’ (Case
C-38/98, ECR 2000 p. I-02973)
1. The Corte d'Appello, seised of an appeal against a decision dismissing an application for a declaration of enforceability on the basis of the first paragraph of Article 40 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, must be regarded as sitting in an appellate capacity and thus having power under Article 2(2) of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention, to request the Court of Justice to give a preliminary ruling on a question of interpretation of the Convention.
Although in Italy the two stages of the procedure for a declaration of enforceability provided for under Article 31 et seq. of the Convention take place before the Corte d'Appello, that coincidence, which is the result of the choice made by the Italian Republic, cannot be permitted to obscure the fact that the procedure under the first paragraph of Article 32, concerning the application for a declaration of enforceability, differs from that provided for in the first paragraph of Article 40. In the first case, the Corte d'Appello rules, in accordance with the first paragraph of Article 34, without the party against whom enforcement is sought being able at this stage of the procedure to submit observations. In the second case, by contrast, the party against whom enforcement is sought must be summoned to appear before the Corte d'Appello as required by the second paragraph of Article 40 (see paras 27-28).
2. While the Contracting States remain free in principle, by virtue of the proviso in Article 27, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, to determine according to their own conception what public policy requires, the limits of that concept are a matter of interpretation of the Convention. Consequently, while it is not for the Court to define the content of the public policy of a Contracting State, it is none the less required to review the limits within which the courts of a Contracting State may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from another Contracting State (see paras 27-28).
ECJ
5 October 1999 ‘Leathertex v Bodetex’ (ECR
1999 Page I-06747)
1. In view of the allocation of jurisdiction under the preliminary ruling procedure provided for by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention, it is for the national court seised of an action founded on separate obligations arising from the same contract to assess the relative importance of the contractual obligations at issue for the purposes of the application of Article 5(1) of the Convention, and for the Court of Justice to interpret the Convention in the light of the findings made in this respect by the national court. To alter the substance of the question referred by the latter for a preliminary ruling would be incompatible with the Court's function under the Protocol and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations pursuant to Article 5 of the Protocol and Article 20 of the Statute of the Court, bearing in mind that, under Article 20, only the order of the referring court is notified to the interested parties.
2. On a proper construction of Article 5(1) of the 1968 Brussels Convention, the same court does not have jurisdiction to hear the whole of an action founded on two obligations of equal rank arising from the same contract when, according to the conflict rules of the State where that court is situated, one of those obligations is to be performed in that State and the other in another Contracting State. While there are disadvantages in having different courts ruling on different aspects of the same dispute, the plaintiff always has the option, under Article 2 of the Convention, of bringing his entire claim before the courts for the place where the defendant is domiciled.
ECJ
16 March 1999 ‘Castelletti v Trumpy’ (Case
C-159/97, ECR 1999 p. I-01597)
Under the division of responsibilities in the preliminary ruling procedure laid down by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.
ECJ
20 March 1997 ‘Farrell v Long’ (Case C-295/95,
ECR 1997 p. I-01683)
In the light of the division of responsibilities in the preliminary ruling procedure laid down by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.
The terms of the Convention must, in principle, be interpreted autonomously. Such autonomous interpretation is alone capable of ensuring uniform application of the Convention, the objectives of which include unification of the rules on jurisdiction of the Contracting States, so as to avoid as far as possible multiplication of the bases of jurisdiction in relation to one and the same legal relationship, and reinforcement of the legal protection available to persons established in the Community by allowing both the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued.
ECJ
28 March 1995 ‘Kleinwort Benson v Glasgow’ (Case
C-346/93, ECR 1995 p. I-00615)
The function of the Court, as envisaged by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention, is that of a court whose judgments are binding on the national court. That function would be altered if the replies given by the Court to the courts of the Contracting States were permitted to be purely advisory and without binding effect.
However, that would be the case if the Court were to declare that it had jurisdiction to provide interpretation of the Convention requested of it by a national court before which proceedings are pending and to which not the Convention but national legislation is applicable, where that legislation takes the Convention as a model, by reproducing certain of its provisions but without incorporating them as such into the domestic legal order, and expressly providing for the possibility of adopting modifications in order to produce divergence in relation to Convention provisions as interpreted by the Courts, and where that legislation merely requires national courts in applying the Convention provisions to have regard to the Court' s interpretation of the corresponding provisions of the Convention without giving binding effect to that interpretation. For that reason the Court does not have jurisdiction to give a preliminary ruling on a question arising in such a context.
ECJ 28 March 1984 ‘Von Gallera v Maître’ (Case 56/84, ECR 1984 p. 01769)
1. By order of 17 January 1984, received at the court on 1 March 1984, the first chamber of the tribunal de Grande Instance, Versailles, referred to the court for a preliminary ruling a question on the interpretation of Article 32 of the 1968 Brussels Convention.
2. Article 32 of the Convention, which deals comprehensively with the power to grant an order for enforcement in respect of decisions of the type covered by the convention given in a Contracting State, provides that application must be made, “in France, to the presiding judge of the tribunal de Grande Instance”, which, in accordance with Article 34 of the Convention, must give its decision without delay and without the party against whom enforcement is sought being entitled, at that stage of the proceedings, to make any submissions on the application.
3. In the main proceedings the first chamber of the tribunal de Grande Instance, Versailles, has before it an application for an order for the enforcement of a decision, dated 26 March 1979, of a court in Lauterbach, Federal Republic of Germany, ordering Gisele Maître to pay, as a consequence of her divorce, maintenance in respect of her son Christoph von Gallera. During the proceedings before the aforementioned chamber, no objection was raised as to its jurisdiction; however, the chamber addressed itself to the question whether “Article 32 of the Convention confers exclusive jurisdiction on the court which it designates in a contracting state to hear applications for orders for the enforcement of judgments given in other contracting states” and whether it should therefore raise the matter of its lack of jurisdiction of its own motion. Referring to Article 177 of the EEC Treaty, the tribunal de Grande Instance, Versailles, submitted that question of interpretation to the court of justice.
4. Unlike Article 177 of the EEC Treaty, which is not applicable in this case, Article 2(1) and (2) of the Protocol concerning the interpretation of the 1968 Brussels Convention by the Court of Justice signed on 3 June 1971, reserves the power to request the Court of Justice to give preliminary rulings on questions of interpretation to the courts designated by name therein and to the “courts of the Contracting States when they are sitting in an appellate capacity”.
5. The tribunal de Grande Instance, Versailles, is not one of the courts set out in Article 2, and it is not sitting in an appellate capacity in the main proceedings. Thus, the Court of Justice manifestly has no jurisdiction to take cognizance of the present request for a preliminary ruling; consequently, it must avail itself of the possibility, provided for in Article 92(1) of the rules of procedure, read together with article 103(2), of declaring the request inadmissible by order.
ECJ 9 November 1983 ‘Habourdin v Italocremona’ (Case 80/83, ECR 1983 p. 03639)
The Protocol of 3 June 1971 on the interpretation by the Court of Justice of the 1968 Brussels Convention provides that only certain courts, referred to in Article 2 thereof, may request the Court of Justice to give preliminary rulings on the interpretation of the 1968 Brussels Convention. Indents 1 and 3 of the before mentioned Article 2 - the first directly and the second by reference to Article 37 of the 1968 Brussels Convention - list, expressly and exhaustively, the courts which may request the Court of Justice to give a preliminary ruling. Article 2(2) states in addition that “the courts of the Contracting States when they are sitting in an appellate capacity” may also request preliminary rulings.
Since the Italian tribunali (district courts) are not referred to either in Article 2 (1) of the Protocol or in Article 37 of the 1968 Brussels Convention, they may request the court of justice to give a preliminary ruling on a question of interpretation only when they are “sitting in an appellate capacity”.
ECJ 6 October 1976 ‘Tessili Italiana v Dunlop’ (Case 12-76, ECR 1976 Page 01473)
1. The new Member States are entitled to submit observations in the context of proceedings relating to the interpretation of one of the Conventions, for which provision is made in Article 220 of the Treaty, to which they are required by Article 3(2) of the Act of Accession to become parties.
2. The 1968 Brussels Convention must be interpreted having regard both to its principles and objectives and to its relationship with the Treaty. As regards the question whether the words and concepts used in the convention must be regarded as having their own independent meaning and as being thus common to all the Member States or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought, the appropriate choice can only be made in respect of each of the provisions of the Convention to ensure that it is fully effective having regard to the objectives of Article 220 of the Treaty.