Brussels I

Fausto Pocar has been Professor of International Law and Private International Law at the University of Milan since 1976, where he also taught European Community law for many years. He lectured at the Hague Academy of International Law in 1983 and delivered the general course on private international law there in 1993.

Fausto Pocar was the rapporteur for the Working Party on Revision of the Brussels I Convention; his explanatory report remained unpublished because of the conversion of the draft revised convention into Regulation (EC) No 44/2001. He has represented Italy at the Hague Conference on Private International Law on various occasions since 1980: he was co-rapporteur of the Special Commission preparing a draft worldwide convention on jurisdiction and the enforcement of judgments and is currently Chairman of the Special Commission preparing a draft convention on maintenance obligations. He is a member of the Institut de droit international and of numerous learned societies and professional associations, both Italian and foreign, including the European Group for Private International Law, which he chaired from 1994 to 1997.

Fausto Pocar is the author of over 100 publications on private international law and European law, including one of the first university textbooks published in Italy on European Community law (now in its ninth edition), a commentary on the Treaty establishing the European Community and the Treaty on European Union, and various articles on Community employment law, private international commercial and family law and international law on civil procedure, with particular reference to the Brussels and Lugano Conventions.

I. Background

1. In the process of 'communitarisation' of private international law resulting from the Treaty of Amsterdam, the rules on jurisdiction and the enforcement of judgments in civil and commercial matters - the title of Regulation (EC) No 44/2001 - most certainly play a central role. The predecessor instrument, the Brussels Convention of 27 September 1968 (Brussels I Convention), adopted by the then six EC Member States under Article 220 of the Treaty, covered the same subject matter and entered into force on 1 February 1973 1. The Brussels I Convention was the first general multilateral instrument on the recognition of judgments which directly regulated the jurisdiction of the contracting States and then relied on that direct jurisdiction for the enforceability of judgments in other contracting States, thereby ensuring that the exercise of direct and indirect jurisdiction coincide. The Brussels I Convention thus falls into the category of double conventions 2. It was amended several times, with the successive waves of enlargement of the European Community 3.

2. It should be remembered that the substance of the Brussels I Convention went to form the Lugano or 'Parallel' Convention, concluded in Lugano on 16 September 1988 between the EC Member States and other European States (the then EFTA countries) 4, albeit with some textual differences, only partly ironed out during subsequent amendments of the Brussels I Convention. In 1997, in order both to fully align the two conventions and to resolve by legislative means certain problems that the Court of Justice of the European Communities had highlighted when interpreting the convention's provisions (see below), the Council decided that the two conventions should be revised simultaneously and instructed a group of experts from the convention contracting States to carry out that task. The revised version was submitted in 1999 5. Because of the entry into force of the Treaty of Amsterdam and the subsequent communitarisation of judicial cooperation in civil matters, the working party's proposed draft was never enacted as a new version of the Brussels I Convention. It was, however, very largely incorporated into the new Commission proposal for a regulation presented to the Council on the basis of Article 61 of the EC Treaty, with the necessary adjustments to the new form of the instrument (regulation) and with the addition of new provisions on consumer contracts 6; the text was examined afresh by the Council's Committee on Civil Law Matters. Against this background, the Brussels I Regulation was approved on 22 December 2000 and entered into force on 1 March 2002, becoming directly applicable in all Member States by virtue of its publication in the Official Journal of the European Communities 7.

3. The 1968 Brussels Convention was followed by a protocol, which was signed in Luxembourg on 3 June 1971 and entered into force on 1 September 1975 8, giving the Court of Justice jurisdiction to interpret the convention if so requested by national courts of appeal or last resort. The protocol has given rise to a wealth of case-law over the last 30 years, which, by adopting indepen...

If you are already a vLex customer, Access Here