Community Law from International Convention
The Brussels Convention of 1968 was replaced in 2002 by Council Regulation (EC) No. 44/2001. The Commission intended to adapt the Convention to the new framework conditions for judicial cooperation in civil matters and to transform its content into a regulation. Despite the necessary changes to the content, the Brussels I Regulation does not differ in its fundamental principles from the Brussels Convention.
The Objective of the Regulation
The Regulation pursues the same objective as the Brussels Convention, i.e., to improve the effectiveness of legal protection in civil matters. Both sources of law are based on the recognition that differences between national laws on jurisdiction and the recognition and enforcement of judgments constitute an obstacle to the proper functioning of the internal market. The free movement of judgments in civil and commercial matters must be ensured, and the rules must be unified and incorporated into a binding and directly applicable Community instrument.
Priority for the Application of the Regulation
The Brussels I Regulation, as a secondary source of community law, is directly and uniformly applicable in the Member States and, as such, takes precedence over national civil procedural law. The Regulation renders inapplicable not only previously enacted procedural rules but also newer ones that conflict with community law. The lex posterior derogat priori principle does not apply to the relationship between the internal law of the Member States and Community law. The provisions of the Regulation on jurisdiction and the recognition and enforcement of judgments replace national law. However, community law cannot take over the role of the internal law of the Member States entirely. The European Court of Justice has also confirmed that national procedural rules may be applied as long as the practical effectiveness of the Regulation is not undermined.
Field of Application of the Regulation
According to point 7 of the Preamble, the scope of the Regulation should cover all relevant civil and commercial matters, with certain well-defined exceptions. The same is stated in Article 1 (1): “This Regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal.” Paragraph 2 excludes other areas of law from the scope of the Regulation (see paragraphs 47 to 57).
Material Scope of the Application
The Regulation shall apply in civil and commercial matters, whatever the nature of the court or tribunal. The regulation does not define the concept of civil and commercial matters. It is to be interpreted independently under EU law, by reference to the purpose and structure of the Regulation and to the principles deriving from the national legal systems, based on the nature and subject matter of the legal relationship between the parties to the dispute.
The wording irrespective of the nature of the court or tribunal makes it irrelevant for the application of the Regulation which court or tribunal in a Member State is hearing or deciding the case, i.e., whether it is a criminal or an administrative court, or whether it is a litigation or non-litigation procedure.
The interpretation of commercial matter is less problematic. It is a part of civil case. The scope of the regulation is limited to the private part of commercial law, as far as the subject matter of the proceedings is commercial law. Where the subject matter of the proceedings is commercial law but is of a public law nature, the rules of the Regulation no longer apply.
The Exclusion of Public Law Disputes
Article 1 makes clear that the Regulation does not apply to public law disputes by excluding tax, customs, and administrative matters. Does not apply to liability for acts or omissions of the state in the exercise of state authority.
One of the most frequently cited examples is the case of the German shipowner Rüffer from the Netherlands, whose ship Otrate sank in the Ems estuary after a collision with a Dutch motor vessel. Under an international treaty, the wreck was removed by the Dutch State, which then passed the costs on to the German shipowner. The case was referred to the European Court of Justice because of unclear jurisdictional issues. In its 1980 judgment, the Court held that, by removing a shipwreck on a public waterway, the State was exercising public authority (fulfilling an obligation under international law) and that the dispute over the reimbursement of costs was therefore a matter of public law and not covered by the Brussels Convention.
Civil Matters Excluded from the Scope of the Regulation
The Regulation does not apply to:
The status, legal capacity, and capacity to act of natural persons, matrimonial property regimes, wills, and succession;
Insolvency proceedings;
Social security proceedings;
Arbitration.
The areas of law listed are excluded from the scope of the Regulation only if they are the subject of litigation. The explanation for the narrowing of the scope goes back to the Brussels Convention. In the 1960s, even among the six Member States that had signed the Convention, the differences in the regulation of these areas of law were so significant that the authors of the Regulation must have expected failure if they had extended the harmonization of the law to these areas. The scope of the Convention was therefore limited to property law matters.
The Personal Scope
There is no general provision on the personal scope of the Brussels I Regulation. Article 2(1) makes it clear, however, that citizenship is irrelevant to the application of the rules on jurisdiction since a person domiciled in a Member State may be sued in the courts of that Member State. The Regulation therefore applies to natural and legal persons domiciled in a Member State.
The Temporal Scope
The Brussels I Regulation entered into force on 1 March 2002. From that date, the Regulation shall be binding in its entirety and directly applicable to the Member States under the Treaty establishing the European Community.
The territorial scope of the Brussels
The territorial scope of the Brussels I Regulation must be determined in the light of the general rules of Community law. Those rules are laid down in Article 299 of the EC Treaty as primary Community law. Still, they must also be considered governed by the Brussels I Regulation as secondary Community law. Article 299 (1) lists the Member States of the European Union, and the following paragraphs deal with the overseas territories of the Member States and the special statute territories excluded or partially excluded from the scope of the Treaty.
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