51997PC0609

Proposal for a Council Act establishing the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters in the Member States of the European Union (98/C 33/05) COM(97) 609 final - 97/0339(CNS)

(Submitted by the Commission on 22 December 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article K.3 (2) (c) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

WHEREAS, for the attainment of the objectives of the European Union, the Member States consider that cooperation in the field of jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is a matter of common interest in the justice and home and affairs cooperation established by Title VI of the Treaty;

HAVING DECIDED to establish the Convention and the Protocol on its interpretation annexed hereto and signed this day by the representatives of the Governments of the Member States;

RECOMMEND its adoption by the Member States in accordance with their respective constitutional requirements.

THE HIGH CONTRACTING PARTIES TO THE TREATY OF THE EUROPEAN UNION,

REFERRING to the Act of the Council of the European Union of . . .,

DESIRING to improve and accelerate the circulation in the Member States of the European Union of judgments in civil and commercial matters and, to that end, to simplify the formalities to which the recognition and the provisional enforcement of judicial decisions are subject;

ANXIOUS to strengthen the legal protection enjoyed by persons established in the Member States of the European Union;

CONSIDERING THAT, by virtue of Article K.3 (2) (c) of the Treaty on European Union, conventions established on the basis of Article K.3 may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions, in accordance with such arrangements as they may lay down,

HAVE AGREED AS FOLLOWS:

TITLE I - SCOPE

Article 1

(Unchanged (1))

TITLE II - JURISDICTION

Section 1 General provisions

Article 2

1. Subject to the provisions of this Convention, persons habitually resident in a Contracting State shall, whatever their nationality, be sued in the courts of that State.

Persons who are not nationals of the State in which they are habitually resident shall be governed by the rules of jurisdiction applicable to nationals of that State.

2. For the purposes of this Convention, the place of the central management of a company or other legal person or, failing that, its registered office, shall be treated as equivalent to the habitual residence of a natural person.

Article 3

Persons who are habitually resident in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out in Sections 2 to 6a of this Title.

In particular the following provisions shall not be applicable as against them:

(Remainder unchanged)

Article 4

If the defendant is not habitually resident in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Articles 16, 17 and 18, be determined by the law of that State.

As against such a defendant, any person habitually resident in a Contracting State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in the second paragraph of Article 3, in the same way as the nationals of that State.

Section 2 Special jurisdiction

Article 5

A person habitually resident in a Contracting State may, in another Contracting State, be sued:

1. in matters relating to a contract for sale of goods, in the courts of the place where the delivery was or should have been carried out, except in cases where the goods were delivered, or deliverable, to more than one place;

2. in matters relating to maintenance, in the courts for the place where the applicant for maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings (2), unless that jurisdiction is based solely on the nationality of one of the parties;

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the event giving rise to the damage occurred or in the courts for the place where the damage or part thereof was sustained;

4. as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;

6. as settler, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Contracting State in which the trust is domiciled;

7. as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question:

(a) has been arrested to secure such payment, or

(b) could have been so arrested, but bail or other security has been given,

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

Article 5a

1. In matters relating to individual contracts of employment, a defendant habitually resident in a Contracting State may be sued in another Contracting State, before the court for the place where the employee habitually carries out his work.

Where the employee does not habitually carry out his work in the same country, the employer may be sued in the courts for the place where the business which engaged the employee was or is now situated.

2. An agreement between the two parties conferring jurisdiction shall have legal force only if entered into after the dispute has arisen or if the employee invokes it to seize courts other than those for the defendant's habitual place of residence or those specified in paragraph 1.

Article 6

A person habitually resident in a Contracting State may also be sued in another Contracting State:

1. where he is one of a number of defendants, in the courts for the place where any one of them is habitually resident, unless the action has been brought solely in order to cause the co-defendants to appear in a court other than their own court.

The first subparagraph shall not apply where a co-defendant has entered into an agreement conferring jurisdiction which satisfies the requirements of Article 17;

2. as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seized of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;

3. on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;

4. in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in immovable property, in the court of the Contracting State in which the property is situated.

Article 6a

(Unchanged)

Section 3 Jurisdiction in matters relating to insurance

Article 7

(Unchanged)

Article 8

An insurer habitually resident in a Contracting State may be sued:

1. in another Contracting State, in the courts for the place where the policy-holder is habitually resident, or

2. if he is a co-insurer, in the courts of a Contracting State in which proceedings are brought against the leading insurer.

An insurer who is not habitually resident in a Contracting State but has a branch, agency or other establishment in one of the Contracting States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be habitually resident in that State.

Article 9

The insurer may in addition be sued in the courts for the place where the event giving rise to the damage occurred or in the courts for the place where the damage or part thereof was sustained if it relates to liability insurance or insurance of immovable property. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 10

(Unchanged)

Article 11

Without prejudice to the provisions of the third paragraph of Article 10, an insurer may bring proceedings only in the courts of the Contracting State in which the defendant is habitually resident, irrespective of whether he is the policy-holder, 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.

Article 12

The provisions of this section may be departed from only by an agreement of jurisdiction:

(Points 1 and 2 unchanged)

3. which is concluded between a policy-holder and an insurer, both of whom have their habitual residence in the same Contracting State, and which has the effect of conferring jurisdiction on the courts of that State even if the event giving rise to the damage were to occur abroad, provided that such an agreement is not contrary to the law of that State, or

4. which is concluded with a policy-holder who is not habitually resident in a Contracting State, except in so far as the insurance is compulsory or relates to immovable property in a Contracting State, or

5. (unchanged)

Article 12a

The following are the risks referred to in point 5 of Article 12:

(paragraphs 1 to 4 unchanged)

5. All major risks to which Article 5 of Council Directive 88/357/EEC refers

Section 4 Jurisdiction over consumer contracts

Article 13

In proceedings concerning a contract concluded by a person for a purpose which can be regarded as being outside his trade or profession, hereinafter called 'the consumer`, jurisdiction shall be determined by this section, without prejudice to the provisions of Article 4 and Article 5 (5), if it is:

1. a contract for the sale of goods on instalment credit terms or a contract for a loan repayable by instalments, or for any form of credit contract to which Council Directive 87/102/EEC applies, or

2. any other contract for the supply of goods or a contract for the supply of services, and

(a) in the State of the consumer's habitual residence the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, or

(b) the consumer's contracting partner or his representative received the order from the consumer in the country where the consumer is habitually resident, or

(c) the contract is for the sale of goods and the consumer travelled from the country where he is habitually resident to another Contracting State and placed the order there, provided that the journey was organized for the purpose of inducing the consumer to enter into a contract for the sale of the goods.

Point 2 shall also apply to contracts for the acquisition of a time-share in immovable property.

Where a consumer enters into a contract with a party who is not habitually resident in a Contracting State but has a branch, agency or other establishment in one of the Contracting States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be habitually resident in that State.

Article 14

A consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which that party is habitually resident or in the courts of the Contracting State in which he is himself habitually resident.

Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Contracting State in which the consumer is habitually resident.

The provisions 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.

Article 15

The provisions of this section may be departed from only by an agreement:

1. which is entered into after the dispute has arisen, or

2. which allows the consumer to bring proceedings in courts other than those indicated in this section, or

3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract (. . .) habitually resident in the same Contracting State, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.

Section 5 Exclusive jurisdiction

Article 16

The following courts shall have exclusive jurisdiction:

1. (a) (unchanged)

(b) however, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Contracting State in which the defendant is habitually resident shall also have jurisdiction, provided that the landlord and the tenant are natural persons are habitually resident in the same Contracting State;

2. in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons, (. . .) the courts of the Contracting State in which the company or legal person (. . .) has its registered office;

(Paragraphs 3 to 5 unchanged)

Section 6 Prorogation of jurisdiction

Article 17

If the parties have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either: (remainder of the paragraph unchanged).

Where such an agreement is concluded by parties none of whom is habitually resident in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

(Remainder of the Article unchanged except that the last paragraph is deleted.)

Article 18

Except where it arises under other provisions of this Convention, jurisdiction shall rest in the court of a Contracting State before which a defendant enters an appearance and of his own volition undertakes procedural steps other than those which directly or indirectly, in an ancillary or subsidiary manner, seek to contest that court's jurisdiction. National provisions governing the form in which, or the grounds on which, the jurisdiction may be contested may in no circumstances operate to impair the expression of the defendant's intent to contest the jurisdiction of such court.

The first paragraph shall not apply where another court has exclusive jurisdiction by virtue of Article 16.

Section 6a Jurisdiction in respect of provisional, including protective, measures

Article 18a

1. Where such provisional or protective measures as are available under the law of a Contracting State are to be enforced in its territory, they may be sought in that State, irrespective of the place where they produce their effects, even if, under this Convention, the courts of another Contracting State have jurisdiction as to the substance of the matter.

2. For the purposes of this Convention, provisional, including protective measures means urgent measures for the examination of a dispute, for the preservation of evidence or of property pending judgment or enforcement, or for the preservation or settlement of a situation of fact or of law for the purpose of safeguarding rights which the courts hearing the substantive issues are, or may be, asked to recognize.

Section 7 Examination as to jurisdiction and admissibility

Article 19

(Unchanged)

Article 20

Where a defendant is sued in a court of another Contracting State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Convention.

(Unchanged)

The Contracting States shall not apply the provisions of the second paragraph until they are affected by the entry into force of Article 9 of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters.

Section 8 Lis pendens - related actions

Article 21

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.

Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of that court.

For the purpose of this Convention, a court shall be deemed to have been seized where an application has been made to it and the document instituting proceedings or equivalent document has been served on or notified to the defendant in accordance with the second or third indents of Article 20.

Article 22

Where related actions are pending in the courts of different Contracting States, any court other than the court first seized may, while the actions are pending at first instance, stay its proceedings.

Such court may also, on the application of one of the parties, decline jurisdiction if actions are pending at the same level, if and the court first seized has jurisdiction over those actions and if the law of that court permits the consolidation of related actions.

For the purposed of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Article 23

1. Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seized shall decline jurisdiction in favour of that court.

2. Where only the second court seized has exclusive jurisdiction, such court shall not be obliged to decline jurisdiction until the court first seized has ruled on the question of jurisdiction.

Section 9 Provisional, including protective, measures

Article 24

(Deleted)

TITLE III - RECOGNITION AND ENFORCEMENT

Article 25

(Unchanged)

Section 1 Recognition

Article 26

(Unchanged)

Article 27

Judgments given in a Contracting State shall, where a final order is issued, generate an entitlement on the grounds of which provisional protective measures may be ordered in accordance with the law of the State applied to, even where they are not enforceable or have not been declared enforceable in the State applied to for the purposes of Article 31.

Article 28

(Deleted)

Article 29

(Deleted)

Article 30

(Unchanged)

Section 2 Enforcement

Article 31

A judgment given in a Contracting State and enforceable in that State shall, in any other Contracting State, have the same effect as attaches to any enforceable judgment in that State, once it has been declared enforceable there on application from any interested party.

However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 32

1. The application shall be submitted:

2. In Contracting States where several courts or authorities have been designated, the jurisdiction of local courts or authorities shall be determined by reference to the place of habitual residence of the party against whom enforcement is sought. If he is not habitually resident in the State in which enforcement is sought, it shall be determined by reference to the place of enforcement.

Article 33

The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

The applicant must give an address for service of process within the area of jurisdiction of the court or authority applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

The documents referred to in Article 46 shall be attached to the application.

Article 34

1. The court or authority applied to shall give its decision within no more than 15 days from the lodging of the application.

2. The court or authority applied to shall verify that the application and the documents provided for by Article 46 are in order.

3. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 35

(Unchanged)

Article 36

1. The judgment authorizing enforcement shall be served on, or notified to, the party against whom enforcement is sought. Such party may appeal against the judgment within one month of service thereof.

2. If that party is habitually resident in a Contracting State other than that in which the judgment authorizing enforcement was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

3. The judgment authorizing enforcement shall automatically be enforceable in anticipation.

However, measures for the sale or assignment of property and all other measures to secure rights recognized by the judgment shall be suspended for the duration of the period allowed for appeals pursuant to paragraph 1 and, if an appeal is brought, until such time as judgment has been given on the appeal and has become enforceable. The court hearing the appeal may, however, decide otherwise, subject, if it deems fit, to the provision of such security as it may determine.

4. All judgments authorizing enforcement shall be deemed to authorize protective measures against the assets of or in respect of the party against whom enforcement is granted.

Article 37

(Unchanged)

Article 37a

1. An action pursuant to Article 36(1) shall be entertained if the party against whom enforcement is authorized shows:

(1) deleted

(2) where the judgment was given by default,

- either that he was not duly served either with the document which instituted the proceedings or with an equivalent document and thereby suffered a prejudice,

- or that he was not served in sufficient time to enable him to arrange for his defence.

However, the action shall not be entertained if no appeal was brought against the judgment, even where he had proper and timely knowledge of it;

(3) that the judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought or in another Contracting State;

(4) deleted;

(5) that the judgment is irreconcilable with an earlier judgment given in a non-contracting State involving the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition in the State addressed.

2. Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37b

An action pursuant to Article 36 shall be entertained if the party against whom enforcement is authorized shows that it conflicts with the provisions of sections 3, 4 or 5 of Title II, or in a case provided for in Article 59.

It its examination of the grounds of jurisdiction referred to in the first paragraph, the court seized shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction.

Subject to the provisions of the first paragraph, the jurisdiction of the court of the State of origin may not be reviewed.

Article 38

The Court with which the appeal is lodged may, on the application of the appellant, stay the proceedings if an ordinary or an extraordinary appeal has been lodged against the judgment in the State of origin or if the time for such an appeal has not yet expired; in the latter case, the Court may specify the time which such an appeal is to be lodged.

(Paragraphs 2 and 3 deleted)

Article 39

(Deleted)

Article 40

1. (Unchanged)

2. The party against whom enforcement is sought shall be summoned to appear before the appellate court. If he fails to appear, the provisions of the second and third paragraphs of Article 20 shall apply.

Article 41

(Unchanged)

Article 42

Where a judgment has been given in respect of several matters and enforcement cannot be authorized for all of them, the court or authority seized shall authorize enforcement for one or more of them.

An applicant may request partial enforcement of a judgment.

Article 43

A foreign judgment which orders a periodic payment by way of a penalty shall, without prejudice to provisional and protective measures to secure its enforcement, be enforceable in the State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin.

Articles 44 and 45

(Unchanged)

Section 3 Common provisions

Article 46

A party seeking recognition or applying for enforcement of a judgment shall produce:

1. a copy of the judgment which satisfies the conditions necessary to establish its authenticity;

2. the original or a certified copy of a certificate issued by a court or authority in the Contracting State in which the judgment was given, following the specimen annexed to this Convention. The certificate shall be completed in the official language of the Contracting State applied to, or, if there are several official languages in that State, the official language for the place where enforcement is to be made, or in any other language which the Contracting State applied to has indicated it will accept. At the time of deposit pursuant to Article 61 (2), each Contracting State shall indicate which of the official languages of the European Union other than its own it will accept for completion of the form;

3. in the case of a judgment given in default, the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings or with an equivalent document;

4. where appropriate, a document showing that the applicant is in receipt of legal aid in the State of origin.

Article 47

(Deleted)

Article 48

If the documents specified in points 3 and 4 of Article 46 are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that is has sufficient information before it, dispense with their production.

If the court so requires, a translation of the documents specified in points 1, 3 and 4 of Article 46 shall be produced; the translation shall be certified by a person qualified to do so in one of the Contracting States.

Article 49

No legalisation or other similar formality shall be required in respect of the documents referred to in Article 46 or the second paragraph of Article 48, or in respect of a document appointing a representative ad litem.

TITLE IV - AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS

Article 50

1. A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 31 to 45. The application may not be refused.

For the purposes of this Convention 'authentic instruments` means documents drawn up by a public authority in accordance with the rules governing jurisdiction and form provided for by the law of the State on whose behalf the authority acts.

2. The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.

3. The provisions of Articles 46 to 49 shall apply as appropriate.

Article 51

(Unchanged)

TITLE V - INTERPRETATION BY THE COURT OF JUSTICE

Article 52

The Court of Justice of the European Communities shall have jurisdiction to interpret this Convention in accordance with the Protocol 2 annexed hereto.

Article 53

(Deleted)

TITLE VI - TRANSITIONAL PROVISIONS

Article 54

(Unchanged)

Article 54a

(Deleted)

TITLE VII - RELATIONSHIP TO OTHER CONVENTIONS

Articles 55 and 56

(Unchanged)

Article 57

(Paragraph I: unchanged)

2. With a view to its uniform interpretation, paragraph 1 shall be applied in the following manner:

(a) this Convention shall not prevent a court of a Contracting State which is a party to a convention on a particular matter, from assuming jurisdiction in accordance with that Convention, even where the defendant in another Contracting State which is not a party to that Convention. The court hearing the action shall, in any event, apply Article 20 of this Convention.

(The rest of the Article unchanged)

Article 58

(Deleted)

Article 59

This Convention shall not prevent a Contracting State from assuming, in a convention on the recognition and enforcement of judgments, an obligation towards a third State not to recognize judgments given in other Contracting States against defendants habitually resident in the third State where in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction specified in the second paragraph of Article 3.

(The rest of the Article unchanged)

TITLE VIII - FINAL PROVISIONS

Article 60

This Convention shall replace, in relations between Contracting States, the Brussels Convention of 27 September 1968 on Jurisdiction and Enforcement in Civil and Commercial Matters as modified by the accession Conventions of 1978, 1982, 1989 and 1996.

Article 61

1. This Convention shall be subject to adoption by the Contracting States in accordance with their respective constitutional requirements.

2. Contracting States shall notify the depositary of the completion of the procedures laid down by their respective constitutional requirements for adopting this Convention.

3. This Convention shall enter into force 90 days after notification under paragraph 2 by the last Member State to complete that formality.

4. Until the entry into force of this Convention, any Contracting State may, when giving the notification referred to in paragraph 2 or at any time thereafter, declare, that this Convention shall apply to it in its relationships with those Contracting States which have made the same declaration. Such a declaration shall take effect 90 days after the date of deposit.

Article 62

1. Amendments to this Convention may be proposed by any Contracting State or by the Commission of the European Communities. Any proposal for an amendment shall be sent to the depositary, who shall forward it to the Council.

2. Amendments shall be adopted by the Council, which shall recommend that they be adopted by the Contracting States in accordance with their respective constitutional requirements.

3. Amendments thus adopted shall enter into force in accordance with Article 61 (3).

4. Without prejudice to paragraphs 1, 2 and 3, the specimen form reproduced in the Annex may be amended by the Council, acting on a proposal from any Contracting State or from the Commission.

Article 63

(Deleted)

Article 64

1. The General Secretariat of the Council of the European Union shall act as depositary of this Convention.

2. The depositary shall publish in the Official Journal of the European Communities:

(1) adoptions;

(2) the date on which this Convention enters into force;

(3) the date from which this Convention is applied as between two Member States and, if appropriate, the dates of application for the purposes of Article 61 (4);

(4) declarations made pursuant to Article VI of Protocol 1.

Article 65

The Protocols annexed to this Convention shall be an integral part of it.

Article 65a

1. The Contracting States recognize that any State which becomes a Member State of the European Union shall accede to this Convention.

2. For the purposes of negotiations for the accession of new Member States to the European Union, this Convention and the Protocols annexed to it shall be considered to be part of the accumulated body of Union law and practice that must be accepted in its entirety by all acceding States.

3. Before signing the Treaty of Accession, all acceding States shall furnish the information required for the application of Articles 3, 32, 37, 40, 41, 46 and 55 of this Convention and of Article 2 of Protocol 2.

Article 66

This Convention is concluded for an unlimited period.

Article 67

(Deleted)

Article 68

(Deleted)

CERTIFICATE

>START OF GRAPHIC>

Article 46 (2) of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters

(English, . . .)

1. DOCUMENT INSTITUTING PROCEEDINGS (or equivalent document)

1.1.

Date of notification or service of document instituting proceedings (or equivalent document):

year: ..........

month: ..........

day: ..........

1.2.

Notification or service procedure

1.2.1. to the addressee in person

1.2.4. by post

1.2.2. to another person

1.2.4.1. without advice of delivery

1.2.3. to addressee's address

1.2.4.2. with advice of delivery

1.2.5. other method

2. JUDGMENT

2.1.

Date:

year: ..........

month: ..........

day: ..........

2.2.

Nature:

2.2.1. decision on substance

2.2.2. interlocutory decision

2.3.

Date of notification or service of the judgment:

year: ..........

month: ..........

day: ..........

2.4.

Notification or service procedure of the judgment

2.4.1. to the addressee in person

2.4.4. by post

2.4.2. to another person

2.4.4.1. without advice of delivery

2.4.3. to addressee's address

2.4.4.2. with advice of delivery

2.4.5. other method

2.5.

Type of judgment:

2.5.1. parties heard

2.5.2. in default/deemed to have been heard

2.6.

Date of hearing on substance:

year: ..........

month: ..........

day: ..........

2.7.

Court which gave judgment:

2.7.1. Type of court:

2.7.2. Place of court:

3. IDENTITY OF PARTIES

3.1.

Plaintiff:

3.2.

Defendant:

It is hereby certified that:

- the judgment specified above is one to which the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters applies

- the said judgment is enforceable in the state in which it was given (Article 31 of the Convention)

- the said judgment is not subject to appeal.

- the said judgment is enforceable as provided for.

Done at .........................., on ..........................

Signature and/or stamp>END OF GRAPHIC>

(1) The term 'unchanged`, wherever used in the Convention and in its Protocols shall be understood to mean unchanged relative to the Brussels Convention in its last version (after the accession of Austria, Finland and Sweden).

(2) Taking into account the signature of the convention on jurisdiction, recognition and enforcement of decisions in matrimonial matters (Brussels II).

ANNEX 1

PROTOCOL 1

THE HIGH CONTRACTING PARTIES HAVE AGREED on the following provisions, which shall be annexed to the Convention:

Article I

Any person habitually resident in Luxembourg who is sued in a court of another Contracting State pursuant to Article 5 (1) may refuse to submit to the jurisdiction of that court. If the defendant does not enter an appearance the court shall declare of its own motion that it has no jurisdiction.

An agreement conferring jurisdiction, within the meaning of Article 17, shall be valid with respect to a person habitually resident in Luxembourg only if that person has expressly and specifically so agreed.

Article II

Without prejudice to any more favourable provisions of national laws, persons habitually resident in a Contracting State who are being prosecuted in the criminal courts of another Contracting State of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person.

(The rest of the Article unchanged)

Article III

(Unchanged)

Article IV

(First paragraph unchanged)

(Second paragraph deleted)

Article V

The jurisdiction specified in Articles 6 (2) and 10 in actions on a warranty or guarantee or in any other third party proceedings may not be resorted to in the Federal Republic of Germany or in Austria. Any person habitually resident in another Contracting State may be sued in the courts.

(The rest of the Article unchanged)

Articles V a and V b

(Unchanged)

Article V c

(Deleted)

Article V d

Without prejudice to the jurisdiction of the European Patent Office pursuant to the Convention on the Grant of European Patents, signed at Munich on 5 October 1973, the courts of each Contracting State shall have exclusive jurisdiction in proceedings concerned with the registration or validity of any European patent granted for that State which is not a Community patent by virtue of the provisions of Article 86 of the Convention for the European Patent for the Common Market, signed at Luxembourg on 15 December 1975.

Article V e

(Unchanged)

Article VI

The Contracting States shall communicate to the General Secretariat of the Council of the European Union the text of any provisions of their laws which amend either those Articles of their laws mentioned in the Convention or the lists of courts specified in section 2 of Title III of the Convention.

Article VII

This Protocol replaces, in relations Contracting States, the Protocol of 27 September 1968, annexed to the Brussels Convention of 27 September 1968 on Jurisdiction and Enforcement in Civil and Commercial Matters, as amended by the Accession Conventions of 1978, 1982, 1989 and 1996.

JOINT DECLARATION No 1

(Deleted)

JOINT DECLARATION No 2

(Deleted)

ANNEX 2

PROTOCOL 2 drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation by the Court of Justice of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters in the Member States of the European Union

THE HIGH CONTRACTING PARTIES,

REFERRING to Article 52 of the Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil or Commercial Matters in the Member States of the European Union, which provides that the Court of Justice of the European Communities shall have jurisdiction to give rulings on the interpretation of that Convention,

WISHING to regulate the conditions under which the Court of Justice of the European Communities shall have jurisdiction to give rulings on questions of interpretation of the Convention and this Protocol,

HAVE AGREED ON THE FOLLOWING PROVISIONS, WHICH ARE ANNEXED TO THE CONVENTION:

Article 1

In accordance with Article 52 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil or commercial matters in the Member States of the European Union, the Court of Justice of the European Communities shall have jurisdiction, under the conditions laid down in this Protocol, to give rulings on the interpretation of the Convention and this Protocol.

Article 2

1. The following courts may request the Court of Justice to give preliminary rulings on questions of interpretation:

(a) the following highest courts of Member States:

. . . . . .

(b) (unchanged)

(c) (unchanged)

2. At the request of the Member State concerned, the list of the highest courts referred to in paragraph 1 (1) may be modified by a decision of the Council of the European Union.

Article 3

(Unchanged)

Article 4

1. The competent authority of a Contracting State or the Commission of the European Communities may request . . . (remainder unchanged).

2. to 3. (Unchanged)

4. The Registrar of the Court of Justice shall give notice of the request to the Contracting States, to the Commission of the European Communities and to the Council of the European Union, they shall then be entitled within two months of the notification to submit statements of case or written observations to the Court.

5. (Unchanged)

Article 5

1. Except where this Protocol otherwise provides, the provisions of the Treaty establishing the European Community and those of the Protocol on the Statute of the Court of Justice annexed thereto, which are applicable when the Court of Justice is requested to give a preliminary ruling, shall also apply to any proceedings for the interpretation of the Convention and the other instruments referred to in Article 1.

2. The Rules of Procedure of the Court of Justice shall, if necessary, be adjusted and supplemented in accordance with Article 188 of the Treaty establishing the European Community.

Article 6

This Protocol may not be subject to any reservation.

Articles 7 to 10

(Deleted)

Article 11

For the purposes of Article 2 (2), the Contracting States shall communicate to the General Secretariat of the Council of the European Union the texts of any provisions of their laws which necessitate an amendment to the list of courts in point 1 of Article 2.

Article 12

(Unchanged)

Article 13

Any Contracting State or the Commission of the European Communities may request the revision of this Protocol. In this event, a revision conference shall be convened by the President of the Council of the European Union.

Article 14

This Protocol replaces, in relations between Contracting States, the Protocol of 3 June 1971 on interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, as modified by Accession Conventions of 1978, 1982, 1989 and 1996.

ANNEX 3

COMMISSION SUGGESTIONS REGARDING REVISION OF THE LUGANO CONVENTION

1. The Commission suggests that the amendments to be made to Titles I to IV of the Brussels Convention in response to its proposals should also be made to the Lugano Convention.

2. It further suggests that Articles 5 (1), 16 (1) (b) and 17 (5) of the Lugano Convention be aligned on the corresponding provisions of the Brussels Convention and that Article 28 (2) be deleted accordingly.

3. Regarding the transitional provisions, the Commission proposes that:

- Article 54a be adjusted to take account of the expiry of the three-year period provided for in respect of certain Lugano Contracting States,

- in Article 54b (and Articles 60 and 61) the words 'Member States of the European Communities` be replaced by 'Member States of the European Union` and that the reference in Article 54b (1) be to 'the Contracting States to the Brussels Convention`.

4. Regarding the final provisions, the Commission suggests the following amendments:

Article 62

1. (Unchanged)

2. In respect of an acceding State, the Convention shall take effect on the first day of the third month following the deposit of its instrument of accession.

Article 63

Each acceding State shall, when depositing its instrument of accession, communicate the information required for the application of Articles 3, 32, 37, 40, 41 and 55 of this Convention and make, if need be, the declarations prescribed for Protocol 1, determined at the time of the communication provided for by Article 62 (1) (b).

Article 63 a

1. If an acceding State wishes to introduce special provisions concerning jurisdiction, procedure or enforcement in Protocol 1, negotiations shall be opened to that end. A negotiating conference shall be convened by the Swiss Federal Council.

2. The Convention as amended shall require ratification by the signatory States. Instruments of ratification shall be deposited with the Swiss Federal Council.

3. This Convention shall enter into force on the first day of the third month following the date on which two States, of which one is a Contracting State and one is an acceding State, deposit their instruments of ratification.

4. In respect of all other signatory States, the Convention shall have effect from the first day of third month following deposit of their instrument of ratification.

Articles 64 to 66

(Unchanged)

Article 67

1. (Unchanged)

2. Following each accession, the depository shall establish the text of the Convention. He shall communicate a certified copy of the Convention to the Member States.