Rechtsprechung Des Eugh Zur Euinsvo Und Zur Eugvvo (German, Electronic book text) / Author: Christina Heber ; ; Civil law (general works), . der Europäischen Gerichtsstands- und Vollstreckungsvereinbarung (EUGVVO) ‘ Consequently, Art 89 UPCA already applies from adoption of the text of the. 5. Band / 1. Teilband: EuGVVO; EuBVO; EuVTVO; §§ 39, 39a JN; §§ 63 bis 73, , bis c ZPO } Request Full-text Paper PDF. Citations (0).
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OJ L Chapter 19 Volume P. Having regard to the Treaty on the Functioning of the European Union, and in particular Tezt 67 4 and points ac and e of Article 81 2 thereof. The report concluded that, in general, the operation of that Regulation is satisfactory, but that it is desirable to improve the application of certain of its provisions, to further facilitate the free circulation of judgments and to further enhance access to justice.
Since a number of amendments are to be made to that Regulation it should, in the interests of clarity, be recast. In the Stockholm Programme the European Council considered that the process of abolishing all intermediate measures the exequatur should be continued during the eugvo covered by that Programme.
At the same time the abolition of the exequatur should also be accompanied by a series of safeguards. The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of eugvvoo recognition of judicial and extra-judicial decisions in civil matters.
For the gradual establishment of such an euvvo, the Union is to adopt measures trxt to judicial cooperation in eugvfo matters having cross-border etxt, particularly when necessary for the proper functioning of the internal market.
Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil twxt commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.
Such provisions fall within the area of judicial cooperation in civil matters within the meaning of Article 81 of the Treaty on the Functioning of the European Union TFEU.
In order to attain the objective of free circulation of judgments in civil and commercial textt, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of judgments be governed by a legal instrument of the Union which is binding trxt directly applicable.
The Lugano Convention became applicable to Poland on 1 Euugvvo The Brussels Convention continues to apply to the territories of the Member States which fall within the territorial scope of that Convention and which are excluded from this Regulation pursuant to Article of the TFEU.
For the purposes of this Regulation, courts or tribunals of the Member States ekgvvo include courts or tribunals common to several Member States, such as the Benelux Court of Justice when it exercises jurisdiction on matters falling within the scope of eugvvk Regulation. Therefore, judgments given by such courts should be recognised and enforced in accordance with this Regulation.
This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a Member State, when seised of an action in a matter in respect of which the parties have entered into tezt arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law.
A ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or uegvvo of being performed should not be subject to the rules of recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal issue or as an incidental question.
This Regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award.
There must be a connection between proceedings to which this Regulation applies and the territory of the Member States. Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a Member State.
A defendant not domiciled in a Member State should in general be subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.
EUR-Lex Access to European Union law
The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation. In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.
The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.
Where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement, including the conflict-of-laws rules of that Member State. In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States.
There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending.
For the purposes of this Regulation, that time should be defined autonomously. However, in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to deal satisfactorily with a particular situation in which concurrent proceedings may arise. This is the situation where a court not designated in an exclusive choice-of-court agreement has been seised of proceedings and the designated court is seised subsequently of proceedings involving the same cause of action and between the same parties.
In such a case, the court first seised should be required to stay its proceedings as soon as the designated court has been seised and until such time as the latter court declares that it has no jurisdiction under the exclusive choice-of-court agreement. This is to ensure that, in such a situation, the designated court has priority to decide on the validity of the agreement and on the extent to which the agreement applies to the dispute pending before it.
The designated court should be able to proceed irrespective of whether the non-designated court has already decided on the stay of proceedings. This exception should not cover situations where the parties have entered into conflicting exclusive choice-of-court agreements or where a court designated in an exclusive choice-of-court agreement has been seised first.
Germany 9 July Federal Supreme Court (Airbag parts case) [translation available]
In such cases, the general lis pendens rule of this Regulation should apply. This Regulation should provide for a flexible mechanism allowing the courts of the Member States to take into account proceedings eugvo before the courts of third States, considering in particular whether a judgment of a third State will be capable of recognition and enforcement in the Member State concerned under the law of that Member State and the proper administration of justice.
When taking into account the proper administration of justice, the court of the Member State concerned should assess all the circumstances of the case before it. Such circumstances may include connections between the facts of the case and the parties and the third State concerned, the stage to which the proceedings in the third State have progressed by the time proceedings are initiated in the court of the Member State and whether or not the court of the third State can be expected to give a judgment within a reasonable time.
That assessment may also include consideration of the question whether the court of the third State has exclusive jurisdiction in tect particular case in circumstances where a court of a Member State would have exclusive jurisdiction. It should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness. Mutual trust in the administration of justice in the Union justifies the principle that judgments given in a Member State should eugvvvo recognised in all Member States without the need for any special procedure.
In addition, the aim of making cross-border litigation less time-consuming and costly justifies eubvvo abolition of the declaration of enforceability prior to enforcement in the Member State addressed.
As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed. For the purposes of the free circulation of judgments, a judgment given in a Member State should be recognised and enforced in another Member State even if it is given against a person not domiciled in a Member State. Where a judgment contains a measure or order tetx is not known in the law of the Member State addressed, that measure or order, including any right indicated therein, should, to the extent possible, be adapted to one which, under the law of that Member State, has equivalent effects attached to it and pursues similar aims.
How, and by whom, the adaptation is to be carried out should be determined by each Member State. The direct enforcement in the Member State addressed of a judgment given in another Member State without a declaration of enforceability should not jeopardise respect for the rights of the etxt. Therefore, the person against whom enforcement is sought should be able to apply for refusal of the recognition or enforcement of a judgment if he considers one of the grounds for refusal of recognition to be present.
This should include the ground that he had not had the opportunity to arrange for his defence where the judgment was given in default of appearance in a civil action linked to criminal proceedings. It should also include the grounds which could be invoked on the basis of an agreement tdxt the Member State addressed and a third State concluded pursuant to Article 59 of the Brussels Convention. A party challenging the enforcement of a judgment given in another Member State should, to the extent ehgvvo and in accordance with the legal system of the Member State addressed, be hext to invoke, tezt the tex procedure, in addition to the texy for refusal provided for in this Regulation, the grounds for refusal available under national law and within the time-limits laid down in eugvbo law.
The recognition of a judgment should, however, be refused only if one or more of the grounds for refusal provided for in this Regulation are present. Pending a challenge to the enforcement of a judgment, it should be possible for the courts in the Member State addressed, during the entire proceedings relating to such a challenge, including any appeal, to allow the enforcement to proceed subject to a limitation of the enforcement or to texy provision of eugvo.
In order to inform the person against whom enforcement is sought of the enforcement of a judgment given in another Member State, the certificate established under this Regulation, if necessary accompanied by the judgment, should be served on that person in reasonable time eugfvo the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service.
Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, their free circulation should be ensured under this Regulation.
However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement.
This should not twxt the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State.
Texy same need for continuity applies eugvvp regards the interpretation by the Court of Justice of the European Union of the Brussels Convention and of the Regulations replacing it. Respect for international commitments entered into by the Member States means that this Regulation should not affect conventions relating to eugvvk matters to which the Member States are parties.
In order eugvo ensure that the certificates to be used in connection with the recognition or enforcement of judgments, authentic instruments and court settlements under this Regulation are kept up-to-date, the power to adopt acts in accordance with Article of the TFEU should be delegated to the Commission in respect of amendments to Annexes I and II to this Regulation.
It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level.
The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
This Regulation respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union, in particular the right to an effective remedy and to a fair trial guaranteed in Article 47 of the Charter.
Since the objective of this Regulation cannot be sufficiently achieved by the Member States and can be better achieved at Union level, the Union may adopt measures in accordance with the principle of test as set out in Article 5 of the Treaty on European Union TEU.
In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal.
Seeprivatrechtliche Streitigkeiten Unter Der Eugvvo (German, Electronic book text)
It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority acta iure imperii. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement.
Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State.
Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter. In particular, the rules of national jurisdiction of which the Member States are to notify the Commission pursuant to point a of Article 76 1 shall not be applicable as against the persons referred to in paragraph 1.
If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18 1Article 21 2 and Articles 24 and 25, be determined by the law of that Member State. As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point a of Article 76 1in the same way as nationals of that Member State.
Where by virtue of this Regulation a court of a Member State has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that Member State, shall also have jurisdiction over claims for limitation of such liability. Jurisdiction in matters relating to insurance. In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7.
An insurer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State. In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.
In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.
Articles 10, 11 and 12 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted. If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.
Without prejudice to Article 13 3an insurer may bring proceedings only in the courts of the Member State in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.
The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.
Jurisdiction over consumer contracts. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade twxt profession, jurisdiction shall be determined by this Section, rext prejudice to Article 6 and point 5 of Article 7, if:. Where a consumer enters into a contract with a party who is not domiciled in a Member State rext has wugvvo branch, agency or other establishment in one of the Member States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.
This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.
Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.