Background
There are several Conventions governing conflicts of national
jurisdiction and the enforcement of judgments in civil and
commercial matters.
The first of these was the 1968 Brussels Convention on
jurisdiction and the enforcement of judgments in civil and
commercial matters. In 1988, similar provisions were then included
in a Convention between EU Member States and Member States of the
European Free Trade Association (EFTA), with the exception of
Liechtenstein. This was called the Lugano Convention.
After the entry into force of the Treaty of Amsterdam, which
conferred on the Community new powers relating to judicial
cooperation in civil matters, the European Council of Ministers
adopted a Regulation replacing the Brussels Convention as between
all the Member States of the Community with the exception of
Denmark.
Next, the Council authorised the Commission to begin
negotiations for the purposes of the adoption of a new Convention
between the Community and the EFTA countries (the new Lugano
Convention) to replace, with reference to the subject matter and
purpose of the Regulation, the Lugano Convention.
However, it also decided to submit a request to the Court for an
opinion as to whether competence to conclude the new Lugano
Convention was exclusive to the Community or shared with the Member
States.
The Council was concerned that the question of competence was
one that frequently arose, but that the Member States were divided
as to the answer.
The ruling
The Court stressed that where common rules have been adopted,
Member States no longer have the right to undertake obligations
with non-member countries that affect those rules.
It then determined that a comprehensive and detailed analysis
has to be carried out to establish whether the Community has the
competence to conclude an international agreement and whether that
competence is exclusive.
In doing so, said the Court, account must be taken not only of
the area covered by the Community rules and by the provisions of
the agreement envisaged, in so far as the latter are known, but
also of the nature and content of those rules and provisions, to
ensure that the agreement is not capable of undermining the uniform
and consistent application of the Community rules and the proper
functioning of the system which they establish.
The Court then observed that the rules on conflict of
jurisdiction in international agreements concluded by Member States
or by the Community with non-member States necessarily establish
criteria of jurisdiction not only in non-member States but also in
the Member States.
Moreover, said the Court, the provisions of the new Lugano
Convention covered matters governed by the Regulation – in this
case the uniform and consistent application of the Regulation and
the proper functioning of the system it establishes.
The Court concluded that because of the unified and coherent
system that the Regulation establishes for the recognition and
enforcement of judgments, an agreement such as the new Lugano
Convention containing provisions on the jurisdiction of the courts
or on the recognition and enforcement of judgments was capable of
affecting that system.
This was because the Convention sets out the principle that a
judgment given in a Contracting State is to be recognised in the
other Contracting States without any special procedure being
required.
Such a principle affects the Community rules since it enlarges
the scope of recognition of judicial decisions, thus increasing the
number of cases in which judgments delivered by courts of countries
not members of the Community whose jurisdiction does not arise from
the application of the Regulation will be recognised.
The Court therefore found that the new Lugano Convention would
affect the uniform and consistent application of the Community
rules as regards both the jurisdiction of courts and the
recognition and enforcement of judgments and the proper functioning
of the unified system established by those rules.
Accordingly, the Court said the European Community had exclusive
competence to conclude the new Lugano Convention.
