Jurisdiction under the Regulation and Lugano Conventions

A court in an EU Member State is, generally speaking, permitted to apply its own jurisdictional rules to decide whether or not to hear a case against a party domiciled in a non-Brussels Regime State (see When will a court take jurisdiction?).

But where a defendant domiciled in an EU Member State is involved, the Brussels I Recast (EU Regulation 1215/2012) establishes common jurisdictional rules in those states. The Brussels I Recast applies to any legal proceedings instituted before an EU Member State court on or after 10 January 2015 and replaced the Brussels I Regulation (EU Regulation 44/2001) (click here to read more about the changes brought in by the Recast).

Certain common rules of jurisdiction in the Brussels I Recast also apply “regardless of domicile” and so will govern matters irrespective of where a defendant is domiciled. These are the rules governing jurisdiction clauses in favour of an EU Member State court, cases of exclusive jurisdiction in favour of such a court (within the meaning of the third bullet point below), and certain cases involving employment and consumer contracts.

Under the Brussels I Recast:

  • The basic rule is that a defendant domiciled in an EU Member State must be sued in the courts of that State. "Domicile" is governed by national law in the case of individuals whilst, in the case of companies, the Brussels I Recast prescribes that this means its place of statutory seat, central administration or principal place of business.
  • there are additional places where such a defendant can be sued: in particular, in tort cases, the country where the harmful event (the act or the damage) occurred or may occur and, in contract cases, the country where the obligation in question was due to be performed;
  • in certain cases, a defendant may only be sued in a particular EU Member State (and any jurisdiction clause to the contrary is ineffective) which is treated by the Brussels I Recast as having “exclusive” jurisdiction over the dispute. The main examples are:

in a dispute concerning rights over, or tenancies of, land, the country where the land is situated, with certain exceptions for short-term tenancies);

in a dispute concerning the validity of intellectual property rights, the country of registration, and

in a dispute concerning a company's status or the validity of decisions of its organs, the country where the company has its seat.

  • a jurisdiction clause in favour of an EU Member State court both confers jurisdiction on the court named and, if exclusive, takes away jurisdiction from any other EU Member State court. Under the Brussels I Recast, unless the parties have agreed a clause that provides for non-exclusive jurisdiction, jurisdiction will be treated as exclusive.

The Lugano Convention 2007, which contains similar provisions to the Brussels I Regulation, governs jurisdictional matters before the EU Member State courts in relation to issues with a connection to Norway, Iceland and Switzerland (see Jurisdiction under the Lugano Convention).

The EU Member States (excluding Denmark) are also party to the Hague Convention on Choice of Court Agreements which , as amongst the Hague Contracting States, can, in certain circumstances, govern the effect of a wholly exclusive jurisdiction clause in favour of the courts of one Hague Contracting State (or one or more specific courts of such a State) only. For more on the Hague Convention, including, from the perspective of an EU Member State court, its relationship (in cases within its scope) to the Brussels I Recast and the Lugano Convention, click here.

In respect of choices in favour of the English court, please click here to read our analysis of the potential impact of Brexit on the effect to be given to such a clause in both England and EU Member States/Lugano States and (in cases falling within the scope of the Hague Convention) non-EU Hague States.