Protocol on the interpretation of the 1968 Convention by the Court of Justice (consolidated version)

PRELIMINARY NOTE

The signing on 29 November 1996 of the Convention on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice has made it desirable, as with previous accessions, for legal practitioners to be provided with an up-to-date consolidated version of the texts of the Brussels Convention and of that Protocol published in Official Journal of the European Communities C 189 of 28 July 1990.

These texts are accompanied by three Declarations by the representatives of the Governments of the Member States, one made in 1978 in connection with the International Convention relating to the arrest of sea-going ships, another in 1989 concerning the ratification of the Convention on the accession of the Kingdom of Spain and the Portuguese Republic and the last in 1996 on jurisdiction for cases where, in the framework of the provision of services, workers are posted in a Member State other than that in which their work is normally performed.

The text printed in this edition was drawn up by the General Secretariat of the Council, in whose archives the originals of the instruments concerned are deposited. It should be noted, however, that this text has no binding force. The official texts of the instruments consolidated are to be found in the following Official Journals.

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ANNEX

PROTOCOL on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (1)

THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,

Having regard to the Declaration annexed to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Brussels on 27 September 1968,

Have decided to conclude a Protocol conferring jurisdiction on the Court of Justice of the European Communities to interpret that Convention, and to this end have designated as their Plenipotentiaries:

[List of the plenipotentiaries designated by the Member States]

WHO, meeting within the Council, having exchanged their full powers, found in good and due form,

HAVE AGREED AS FOLLOWS:

Article 1

The Court of Justice of the European Communities shall have jurisdiction to give rulings on the interpretation of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and of the Protocol annexed to that Convention, signed at Brussels on 27 September 1968, and also on the interpretation of the present Protocol.

The Court of Justice of the European Communities shall also have jurisdiction to give rulings on the interpretation of the Convention on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention of 27 September 1968 and to this Protocol (2).

The Court of Justice of the European Communities shall also have jurisdiction to give rulings on the interpretation of the Convention on the accession of the Hellenic Republic to the Convention of 27 September 1968 and to this Protocol, as adjusted by the 1978 Convention (3).

The Court of Justice of the European Communities shall also have jurisdiction to give rulings on the interpretation of the Convention on the accession of the Kingdom of Spain and the Portuguese Republic to the Convention of 27 September 1968 and to this Protocol, as adjusted by the 1978 Convention and the 1982 Convention (4).

The Court of Justice of the European Communities shall also have jurisdiction to give rulings on the interpretation of the Convention on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Convention of 27 September 1968 and to this Protocol, as adjusted by the 1978 Convention, the 1982 Convention and the 1989 Convention (5).

Article 2

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

1. - in Belgium: 'la Cour de Cassation` - 'het Hof van Cassatie` and 'le Conseil d'État` - 'de Raad van State`,

- in Denmark: 'højesteret`,

- in the Federal Republic of Germany: 'die obersten Gerichtshöfe des Bundes`,

- in Greece: the 'áíþôáôá äéêáóôÞñéá`,

- in Spain: 'el Tribunal Supremo`,

- in France: 'la Cour de Cassation` and 'le Conseil d'État`,

- in Ireland: the Supreme Court,

- in Italy: 'la Corte Suprema di Cassazione`,

- in Luxembourg: 'la Cour supérieure de Justice` when sitting as 'Cour de Cassation`,

- in Austria, the 'Oberste Gerichtshof`, the 'Verwaltungsgerichtshof` and the 'Verfassungsgerichtshof`,

- in the Netherlands: 'de Hoge Raad`,

- in Portugal: 'o Supremo Tribunal de Justiça` and 'o Supremo Tribunal Administrativo`,

- in Finland, 'korkein oikeus/högsta domstolen` and 'korkein hallintooikeus/högsta förvaltningsdomstolen`,

- in Sweden, 'Högsta domstolen`, 'Regeringsrätten`, 'Arbetsdomstolen` and 'Marknadsdomstolen`,

- in the United Kingdom: the House of Lords and courts to which application has been made under the second paragraph of Article 37 or under Article 41 of the Convention (6);

2. the courts of the Contracting States when they are sitting in an appellate capacity;

3. in the cases provided for in Article 37 of the Convention, the courts referred to in that Article.

Article 3

1. Where a question of interpretation of the Convention or of one of the other instruments referred to in Article 1 is raised in a case pending before one of the courts listed in point 1 of Article 2, that court shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

2. Where such a question is raised before any court referred to in point 2 or 3 of Article 2, that court may under the conditions laid down in paragraph 1, request the Court of Justice to give a ruling thereon.

Article 4

1. The competent authority of a Contracting State may request the Court of Justice to give a ruling on a question of interpretation of the Convention or of one of the other instruments referred to in Article 1 if judgments given by courts of that State conflict with the interpretation given either by the Court of Justice or in a judgment of one of the courts of another Contracting State referred to in point 1 or 2 of Article 2. The provisions of this paragraph shall apply only to judgments which have become res judicata.

2. The interpretation given by the Court of Justice in response to such a request shall not affect the judgments which gave rise to the request for interpretation.

3. The Procurators-General of the Courts of Cassation of the Contracting States, or any other authority designated by a Contracting State, shall be entitled to request the Court of Justice for a ruling on interpretation in accordance with paragraph 1.

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

5. No fees shall be levied or any costs or expenses awarded in respect of the proceedings provided for in this Article.

Article 5

1. Except where this Protocol otherwise provides, the provisions of the Treaty establishing the European Economic Community and those of the Protocol on the Statute of the Court of Justice annexed thereto, which are applicable when the Court 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 Economic Community.

Article 6

. . . (7)

Article 7 (8)

This Protocol shall be ratified by the signatory States. The instruments of ratification shall be deposited with the Secretary-General of the Council of the European Communities.

Article 8 (9)

This Protocol shall enter into force on the first day of the third month following the deposit of the instrument of ratification by the last signatory State to take this step; provided that it shall at the earliest enter into force at the same time as the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters.

Article 9

The Contracting States recognize that any State which becomes a member of the European Economic Community, and to which Article 63 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters applies, must accept the provisions of this Protocol, subject to such adjustments as may be required.

Article 10 (10)

The Secretary-General of the Council of the European Communities shall notify the signatory States of:

(a) the deposit of each instrument of ratification;

(b) the date of entry into force of this Protocol;

(c) any designation received pursuant to Article 4 (3);

(d) . . . (11).

Article 11

The Contracting States shall communicate to the Secretary-General of the Council of the European Communities 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

This Protocol is concluded for an unlimited period.

Article 13

Any Contracting State 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 Communities.

Article 14 (12)

This Protocol, drawn up in a single original in the Dutch, French, German and Italian languages, all four texts being equally authentic, shall be deposited in the archives of the Secretariat of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each signatory State (13).

In witness whereof, the undersigned Plenipotentiaries have affixed their signatures below this Protocol.

Done at Luxembourg on the third day of June in the year one thousand nine hundred and seventy-one.

[Signatures of the plenipotentiaries]

JOINT DECLARATION

The Government of the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands,

On signing the Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters,

Desiring to ensure that the provisions of that Protocol are applied as effectively and as uniformly as possible,

Declare themselves ready to organize, in cooperation with the Court of Justice, an exchange of information on the judgments given by the courts referred to in Article 2 (1) of that Protocol in application of the Convention and the Protocol of 27 September 1968.

In witness whereof, the undersigned Plenipotentiaries have affixed their signatures below this Joint Declaration.

Done at Luxembourg on the third day of June in the year one thousand nine hundred and seventy-one.

[Signatures of the plenipotentiaries]

JOINT DECLARATION of 9 October 1978

THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN ECONOMIC COMMUNITY, MEETING WITHIN THE COUNCIL,

Desiring to ensure that in the spirit of the Convention of 27 September 1968 uniformity of jurisdiction should also be achieved as widely as possible in maritime matters,

Considering that the International Convention relating to the arrest of sea-going ships, signed at Brussels on 10 May 1952, contains provisions relating to such jurisdiction,

Considering that all of the Member States are not parties to the said Convention,

Express the wish that Member States which are coastal States and have not already become parties to the Convention of 10 May 1952 should do so as soon as possible.

In witness whereof, the undersigned Plenipotentiaries have affixed their signature below this Joint Declaration.

Done at Luxembourg on the ninth day of October in the year one thousand nine hundred and seventy-eight.

[Signatures of the plenipotentiaries]

JOINT DECLARATION of 26 May 1989 concerning the ratification of the Convention on the accession of the Kingdom of Spain and the Portuguese Republic to the 1968 Brussels Convention

Upon signature of the Convention on the accession of the Kingdom of Spain and the Portuguese Republic to the 1968 Brussels Convention, done at Donostia - San Sebastián on 26 May 1989,

THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES, MEETING WITHIN THE COUNCIL,

DESIROUS that, in particular with a view to the completion of the internal market, application of the Brussels Convention and of the 1971 Protocol should be rapidly extended to the entire Community,

WELCOMING the conclusion on 16 September 1988 of the Lugano Convention which extends the principles of the Brussels Convention to those States becoming parties to the Lugano Convention, designed principally to govern relations between the Member States of the European Economic Community (EEC) and those of the European Free Trade Association (EFTA) with regard to the legal protection of persons established in any of those States and to the simplification of formalities for the reciprocal recognition and enforcement of judgments,

CONSIDERING that the Brussels Convention has as its legal basis Article 220 of the Treaty of Rome and is interpreted by the Court of Justice of the European Communities,

MINDFUL that the Lugano Convention does not affect the application of the Brussels Convention as regards relations between Member States of the European Economic Community, since such relations must be governed by the Brussels Convention,

NOTING that the Lugano Convention is to enter into force after two States, of which one is a member of the European Communities and the other a member of the European Free Trade Association, have deposited their instruments of ratification,

DECLARE THEMSELVES READY to take every appropriate measure with a view to ensuring that national procedures for the ratification of the Convention on the accession of the Kingdom of Spain and the Portuguese Republic to the Brussels Convention, signed today, are completed as soon as possible and, if possible, by 31 December 1992 at the latest.

In witness whereof the undersigned have signed this declaration.

Done at Donostia - San Sebastián on the twenty-sixth day of May in the year one thousand nine hundred and eighty-nine.

[Signatures of the plenipotentiaries]

(1) Text as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland - hereafter referred to as the '1978 Accession Convention` - by the Convention of 25 October 1982 on the accession of the Hellenic Republic - hereafter referred to as the '1982 Accession Convention`, and by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic - hereafter referred to as the '1989 Accession Convention` - and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden - hereafter referred to as the '1996 Accession Convention`.

(2) Second paragraph added by Article 30 of the 1978 Accession Convention.

(3) Third paragraph added by Article 10 of the 1982 Accession Convention.

(4) Fourth paragraph added by Article 24 of the 1989 Accession Convention.

(5) Fifth paragraph added by Article 11 of the 1996 Accession Convention.

(6) Point 1 as amended by Article 31 of the 1978 Accession Convention, by Article 11 of the 1982 Accession Convention, by Article 25 of the 1989 Accession Convention, and by Article 12 of the 1996 Accession Convention.

(7) Article 26 of the 1989 Accession Convention provides for the deletion of Article 6 as amended by Article 32 of the 1978 Accession Convention.

(8) Ratification of the 1978 and 1982 Accession Conventions was governed by Articles 38 and 14 of those Conventions. The ratification of the 1989 Accession Convention is governed by Article 31 of that Convention, which reads as follows:

'Article 31

This Convention shall be ratified by the signatory States. The instruments of ratification shall be deposited with the Secretary-General of the Council of the European Communities.`

The ratification of the 1996 Accession Convention is governed by Article 15 of that Convention, which reads as follows:

'Article 15

This Convention shall be ratified by the signatory States. The instruments of ratification shall be deposited with the Secretary-General of the Council of the European Union.`

(9) The entry into force of the 1978 and 1982 Accession Convention was governed by Articles 39 and 15 of those Conventions.

The entry into force of the 1989 Accession Convention is governed by Article 32 of that Convention, which reads as follows:

'Article 32

1. This Convention shall enter into force on the first day of the third month following the date on which two signatory States, of which one is the Kingdom of Spain or the Portuguese Republic, deposit their instruments of ratification.

2. This Convention shall take effect in relation to any other signatory State on the first day of the third month following the deposit of its instrument of ratification.`

The entry into force of the 1996 Accession Convention is governed by Article 16 of that Convention, which reads as follows:

'Article 16

1. This Convention shall enter into force on the first day of the third month following the date on which two signatory States, one of which is the Republic of Austria, the Republic of Finland or the Kingdom of Sweden, deposit their instruments of ratification.

2. This Convention shall produce its effects for any other signatory State on the first day of the third month following the deposit of its instrument of ratification.`.

(10) Notification concerning the 1978 and 1982 Accession Conventions is governed by Articles 40 and 16 of those Conventions.

Notification concerning the 1989 Accession Convention is governed by Article 33 of that Convention, which reads as follows:

'Article 33

The Secretary-General of the Council of the European Communities shall notify the signatory States of:

(a) the deposit of each instrument of ratification;

(b) the dates of entry into force of this Convention for the Contracting States.`

Notification concerning the 1996 Accession Convention is governed by Article 17 of that Convention, which reads as follows:

'Article 17

The Secretary-General of the Council of the European Union shall notify the signatory States of:

(a) the deposit of each instrument of ratification;

(b) the dates of entry into force of this Convention for the Contracting States.`

(11) Article 27 of the 1989 Accession Convention provides for the deletion of (d) as amended by Article 33 of the 1978 Accession Convention.

(12) An indication of the authentic texts of the Accession Conventions is to be found in the following provisions:

- with regard to the 1978 Accession Convention, in Article 41 of that Convention, which reads as follows:

'Article 41

This Convention, drawn up in a single original in the Danish, Dutch, English, French, German, Irish and Italian languages, all seven texts being equally authentic, shall be deposited in the archives of the Secretariat of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each signatory State.`,

- with regard to the 1982 Accession Convention, in Article 17 of that Convention, which reads as follows:

'Article 17

This Convention, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish and Italian languages, all eight texts being equally authentic, shall be deposited in the archives of the General Secretariat of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each signatory State.`,

- with regard to the 1989 Accession Convention, in Article 34 of that Convention, which reads as follows:

'Article 34

This Convention, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, all 10 texts being equally authentic, shall be deposited in the archives of the General Secretariat of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each signatory State.`,

- with regard to the 1996 Accession Convention, in Article 18 of that Convention, which reads as follows:

'Article 18

This Convention, drawn up in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, all 12 texts being equally authentic, shall be deposited in the archives of the General Secretariat of the Council of the European Union. The Secretary-General shall transmit a certified copy to the Government of each signatory State.`

(13) Legal backing for the drawing-up of the authentic texts of the 1968 Convention in the official languages of the acceding Member States is to be found:

- with regard to the 1978 Accession Convention, in Article 37 of that Convention, which reads as follows:

'Article 37

The Secretary-General of the Council of the European Communities shall transmit a certified copy of the 1968 Convention and of the 1971 Protocol in the Dutch, French, German and Italian languages to the Governments of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland.

The texts of the 1968 Convention and the 1971 Protocol, drawn up in the Danish, English and Irish languages, shall be annexed to this Convention. The texts drawn up in the Danish, English and Irish languages shall be authentic under the same conditions as the original texts of the 1968 Convention and the 1971 Protocol.`

- with regard to the 1982 Accession Convention, in Article 13 of that Convention, which reads as follows:

'Article 13

The Secretary-General of the Council of the European Communities shall transmit a certified copy of the 1968 Convention, of the 1971 Protocol and of the 1978 Convention in the Danish, Dutch, English, French, German, Irish and Italian languages to the Government of the Hellenic Republic.

The texts of the 1968 Convention, of the 1971 Protocol and of the 1978 Convention, drawn up in the Greek language, shall be annexed to this Convention. The texts drawn up in the Greek language shall be authentic under the same conditions as the other texts of the 1968 Convention, the 1971 Protocol and the 1978 Convention.`

- with regard to the 1989 Accession Convention, in Article 30 of that Convention, which reads as follows:

'Article 30

1. The Secretary-General of the Council of the European Communities shall transmit a certified copy of the 1968 Convention, of the 1971 Protocol, of the 1978 Convention and of the 1982 Convention in the Danish, Dutch, English, French, German, Greek, Irish and Italian languages to the Governments of the Kingdom of Spain and of the Portuguese Republic.

2. The texts of the 1968 Convention, of the 1971 Protocol, of the 1978 Convention and of the 1982 Convention, drawn up in the Portuguese and Spanish languages, are set out in Annexes II, III, IV and V to this Convention. The texts drawn up in the Portuguese and Spanish languages shall be authentic under the same conditions as the other texts of the 1968 Convention, the 1971 Protocol, the 1978 Convention and the 1982 Convention.`

- with regard to the 1996 Accession Convention, in Article 14 of that Convention, which reads as follows:

'Article 14

1. The Secretary-General of the Council of the European Union shall transmit a certified copy of the 1968 Convention, of the 1971 Protocol, of the 1978 Convention, of the 1982 Convention and of the 1989 Convention in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Spanish and Portuguese languages to the Governments of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.

2. The texts of the 1968 Convention, of the 1971 Protocol, of the 1978 Convention, of the 1982 Convention and of the 1989 Convention, drawn up in the Finnish and Swedish languages, shall be authentic under the same conditions as the other texts of the 1968 Convention, the 1971 Protocol, the 1978 Convention, the 1982 Convention and the 1989 Convention.`