Agrégateur de flux

The author of this post is Cecilia Rizcallah. She is visiting Professor at the Université Saint-Louis-Bruxelles and at the Université libre de Bruxelles, Postdoctoral Researcher at the National Fund for Scientific Research (F.R.S.-FNRS) and re:constitution fellow. As announced in a previous post, Cecilia is the author of a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis. She has kindly accepted to provide us with a presentation of this key-principle of EU law with a special focus on EU judicial cooperation in civil matters.

The principle of mutual trust, whose fundamental importance is recognised by the European Court of Justice (hereafter “ECJ”), became a genuine “leitmotiv” of discourses on EU integration. This principle indeed underpins a large set of EU rules of primary and secondary law, in the fields of the internal market and the area of freedom, security and justice.

The principle of mutual trust appeared at an early stage of European integration, in the area of mutual recognition of diplomas and professional qualifications and in the field of free movement of goods. Being an attractive tool for integration by allowing the opening-up of the different national legal orders, it was subsequently called upon in the areas of European judicial cooperation in civil and criminal matters, as well as in the area of the common asylum policy. In spite of its success, this principle lacked conceptualization. The main objective of my research was to remedy this nebulous situation by providing a cross-cutting definition of the principle of mutual trust. It also analysed its role for EU integration as well as its relationship with EU founding values, which include the rule of law and human rights. The principle of mutual trust is indeed presented as being “based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU” (ECJ, Opinion 2/13, pt. 168). Yet, the EU currently faces a “crisis of values” resulting from the existence of serious violations of these values and, in particular, the rule of law and human rights, in an increasing number of Member States.

The in-depth study of the manifestations of the principle of mutual trust shows that it imposes to the Member States to presume – to a certain extent and in their direct horizontal relationships – the compatibility of different national “legal solutions”.  Indeed, the principle of mutual trust requires Member States – when it applies – to “trust” acts issued by other Member States, or legal practices or situations tolerated in their territory. This duty of trust prevents, as a matter of principle, the double control of these national legal solutions’ compliance with EU law. The principle of mutual trust has nevertheless no direct effect and has therefore to be implemented by primary or secondary law in order to be applicable. It constitutes one of the foundations of the principle of mutual recognition, which in turn imposes, more specifically, the recognition of a legal act issued by another Member State.

In the field of judicial cooperation in civil matters, the principle of mutual trust opposes the revision of a judgment issued by a – issuing – Member State for which the recognition is sought in another – executing – Member State. It therefore countenances the principle of mutual recognition imposed by a number of instruments in civil and commercial matters, matrimonial matters and matters of parental responsibility and insolvency. A judgment deciding on the custody of a Franco-German couple’s child handed down in Berlin will thus be able to take effect almost without formalities in Paris, despite the specificities distinguishing German and French family law. The judgments issued by the Member States should be presumed as being “equivalent” and as complying with the requirements of Union law, particularly in terms of fundamental rights.

As a matter of fact, the principle of mutual trust plays an essential role for EU integration. It indeed lies at the crossroads of three essential imperatives of the European construct: unity, diversity and equality between Member States. Despite the safeguarding of national substantive and procedural diversities, the borders between the Member States are fictitiously blurred so that – in broad terms – the legal solution of State A does not encounter any obstacles to penetrate the legal order of State B. The judgment issued by the authorities of a Member State A will indeed be able to take effect, without any formalities such as an exequatur, in the Member State B. In this way, the principle of mutual trust makes it possible to unify the national legal orders, which remain distinct and equal.

Although it plays an essential role for EU integration, this principle generates important risks because of the lack of mutual control of legal solutions presumed to be compatible. It may indeed lead to the spread of unsatisfactory legal solutions – infringing EU law – within the European area without internal borders. These risks are of course amplified because of the existence of the “crisis of values”. The major challenges faced by the Union and the Member States in economic, security and migration matters have indeed revealed deep divisions as to the meaning of European integration and the values on which it is based. These divisions have gone so far as to lead to the existence of widespread and persistent failures which, in the opinion of the majority of observers, are causing a rule of law backsliding in a few Member States. This situation increases the likelihood that national legal solutions are incompatible with democratic values and the rule of law. A judgement issued by a judge who is no longer independent could indeed, by vertu of mutual trust, spread its effects in the other Member States.

Exceptions have nevertheless been recognized to the principle of mutual trust in order to limit the risks of violation of EU founding values it entails. These exceptions must however be construed narrowly according to the ECJ, because of the principle mutual trust. Indeed, according to the Court, it is only in “exceptional circumstances” that this principle may be set aside (ECJ, Opinion 2/13, pt. 191).

The ECJ, for example precluded, with regards to the Brussels II bis regulation, the review, by an executing authority, of a decision requiring the return of a child issued on the basis of Article 42 of this regulation. In the Zarraga case, it held that the authorities of the executing Member State were not entitled to verify whether the court which issued the judgment requiring the return of the child had respected the child’s right to be heard, as provided for by the Regulation, since the principle of mutual trust requires the national authorities to consider “that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights” (pt. 70). The Court of Justice justified this approach on the grounds that the regulation did not foresee any exceptions to this kind of decision and, also, that the child’s right to be heard is not absolute and that the national authorities are granted a margin of discretion regarding its application (pt. 66).

Exceptions to the principle of mutual trust have nevertheless been established, when more serious risks of violation of fundamental rights were at stake, in the context of the application of the Brussels I bis Regulation, which concerns the recognition and enforcement of judgments in civil and commercial matters and which establishes a general exception to mutual recognition based on public policy. This exception must however, still because of the principle of mutual trust, be construed narrowly. In the Krombach case, the Court of Justice nevertheless held that mutual recognition may be refused when the defendant has suffered “a manifest breach of his right to defend himself before the court of origin”. A similar conclusion was made in the Trade Agency case, where the Court of Justice stressed that the public policy clause could only be relied upon when the defendant’s right to a fair trial is “manifestly” breached, leading to the “impossibility of bringing an appropriate and effective appeal” against the judgement in the issuing state.

The study of all the exceptions surrounding the principle of mutual trust led to the conclusion that if not all violations of fundamental rights justify setting aside mutual trust, the ones threatening absolute fundamental rights (such as the prohibition of inhuman and degrading treatment) or the essential content of other fundamental rights, in the sense of Article 52(1) of the Charter do. Indeed, only the most serious violations of fundamental freedoms seem to exclude the application of the principle of mutual trust.

This observation is based on the case-law in private international law (above) which refers to the concept of “manifest breach”, but also in the field of criminal cooperation and asylum where the Court found that a risk of infringement of Article 4 of the Charter prohibiting inhuman and degrading treatments excluded mutual trust.

Yet, if the integration aims pursued by the principle of mutual trust are legitimate, one can nevertheless wonder how to justify that this principle continues to apply even in presence of risks of “simple” infringements of fundamental freedoms, especially since this principle is supposed to be based on the respect of these rights by all the member states. The implementation of the principle of mutual trust can therefore in itself weaken its proper foundations.

 Observing the unsatisfactory character of the limitation scheme surrounding the principle of mutual trust, this research ended by proposing ways of improving its operation so that the founding values of the Union are better protected. More specifically, we call on those involved in mutual trust to transform the principle of mutual trust from a postulate into a method. In other words, we propose to move away from the postulate of trust in favour of a methodical application of trust.

This method, which is based on risk management tools notably developed by the Society for Risk Analysis, is divided into two phases.

The first is aimed at EU institutions that implement, in an abstract way, mutual trust in standards with a general scope: when they adopt an EU legislation implementing this principle, it seems desirable to us that they carry out a risk analysis and that they adapt the exceptions enshrined in this instrument accordingly. To this end, several steps are proposed, which differ according to the type of value exposed by the envisaged legislation, the type and seriousness of the damage incurred, and the possible vulnerability of the resources concerned. For example, when fundamental rights are threatened by the instrument underpinned by the principle of mutual trust – such as the best interest of the child in the framework of the Brussels II bis regulation – we consider that a margin of appreciation should be reserved to national authorities implementing the instrument on a case-by-case basis.

The second phase is aimed at the actors who actually implement these general instruments in specific cases (judges, administrations, etc.). Here too, guidelines that could guide these actors in this task are developed, always with a view to increasing the protection of the fundamental rights of individuals. The method deals in particular with the question of the adjustment of the burden of proof, an issue that is of particular importance in litigation, especially when it comes to protecting fundamental rights. In this sense, if the existence of risks of serious violations of fundamental rights is alleged and demonstrated prima facie, we recommend a shift of the burden of the proof so that it would be up to the authority that wants to take advantage of the principle of mutual trust to demonstrate the non-existence of this risk. This proposition is largely inspired by the adjustment of the burden of the proof in non-discriminatory law (see, for example, art. 10 of Directive 2000/78)

As a complement to this method, various “risk management tools” are also explored, making it possible to reduce those that threaten human rights in the context of the implementation of mutual trust. These tools include minimum harmonization, the strengthening of procedural guarantees surrounding the principle of mutual trust, the establishment of solidarity mechanisms between the Member States, …

Evidently, this method does not claim to solve all the difficulties arising from the principle of mutual trust. On the contrary: it aims at opening the discussion on the basis of a systematic identification of the risks induced by this principle, and to inspire the stakeholders with a few best practices.

On 5 March 2021, from 5 to 6.30 p.m. (CET), the European Association of Private International Law will host its third (Virtual) Seminar (see here and here for the previous events in the series). The Seminar will focus on the digitalization aspects of the revised Service of process and Taking of evidence Regulations.

The speakers will be Andreas Stein (European Commission), Elizabeth Zorilla (Hague Conference on Private International Law), Michael Stürner (University of Konstanz and Court of Appeal of Karlsruhe), Jos Uitdehaag (International Union of Judicial Officers) and Ted Folkman (attorney at law, Boston, and Letters Blogatory).

Gilles Cuniberti will introduce the Seminar, while Giesela Rühl will provide some concluding remarks.

Attendance is free, but those wishing to attend are required to register here by 3 March 2021 at noon.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar.

For more information, please write an e-mail to Apostolos Anthimos at apostolos.anthimos@gmail.com.

Il découle de l’article 3 de la Convention européenne des droits de l’homme une obligation procédurale de mener une enquête effective sur les allégations d’abus sexuels sur mineurs et cette obligation n’est pas respectée lorsque les enquêteurs ont négligé certaines pistes et n’ont pas pris certaines mesures d’enquête telles que des interceptions de correspondances ou des infiltrations.

en lire plus

Profitant lâchement des vacances judiciaires, la rédaction de Dalloz actualité s’éclipse quelques jours pour souffler un peu.

Mais promis, vous n’aurez pas longtemps à attendre. Retour dès le lundi 1er mars !

Merci de votre fidélité.

en lire plus

The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of

5 funded PhD positions

at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

Selected PhD candidates will receive full-time research contracts of initially 2 years, with a possible extension of up to additional 2 years depending on the availability of funds, the student’s progress, and the Directors’ approval. In addition to being embedded in one of the vibrant Departments and its activities, the PhD candidates will be part of the IMPRS-SDR through which they will receive additional scholarly guidance and take part in events, such as doctoral seminars, master classes, and lectures. PhD candidates will benefit from the productive working environment within an international and creative team of researchers and have the opportunity to establish contacts and networks with all participating institutions as well as visiting academics and practitioners.

The deadline for application is 31 March 2021.

Additional information is available here.

For any questions with regard to the IMPRS-SDR and this Call for Applications, please contact:
Dr. Michalis Spyropoulos, IMPRS-SDR Coordinator, at: imprs-sdr@mpi.lu

The Max Planck Institute Luxembourg strives to ensure a workplace that embraces diversity and provides equal opportunities.

“From 15 to 17 February 2021, the Experts’ Group on Parentage / Surrogacy met for the eighth time. […] The Experts’ Group discussed what the focus of its work should be at its next meeting(s) in order to prepare its final report to CGAP on the feasibility of a possible future general private international law instrument on legal parentage (the Convention) and the feasibility of a separate possible future protocol with private international law rules on legal parentage established as a result of an international surrogacy arrangement (the Protocol).

The Experts’ Group will recommend that its current mandate until 2022 be extended by one year, in order to continue intersessional work and convene several short online meetings and at least one in-person meeting, before submitting its final report on the feasibility of the Convention and the Protocol to CGAP in 2023”. 

A report has been drafted, albeit it contains no information on the substance of the work.

Source: https://www.hcch.net/en/news-archive/details/?varevent=790

The HCCH Experts’ Group on International Transfer of Maintenance Funds met last week via videoconference. The Expert Group discussed topics such as the move away from cheques, the covering of costs related to the transfer of funds (with a view to their abolition), the implementation of bundled payments to reduce costs of transfers, etc. A résumé of these discussions may be found in the Aide-mémoire, available at https://assets.hcch.net/docs/abad87fe-7177-4dce-8393-cf32d240cc0d.pdf

Source: https://www.hcch.net/en/news-archive/details/?varevent=789

From March 3 to May 13, 2021, the University of Milan will host a series of webinars dealing with cross-border civil and commercial litigation in Europe, as part of the three-year project funded by the European Union and named “Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe“.

The cycle of seminars will be divided into three modules, focusing, respectively, on relations and conflicts between national judges, European courts and international tribunals; on collective redress, addressed from a European, comparative and transnational perspective and in the context of different legal sectors; on the main procedural issues arising out of transnational litigation in financial law, IP law, labor law and family law disputes, as well as on the the current EU works on judicial cooperation and on the latter’s prospects after Brexit. A short module will provide participants with basic hints on written and oral legal advocacy.

The seminars, held by Italian and foreign experts with remarkable experience (not only academic, but also professional and institutional) in the sector, also due to their involvement in international research works and legislative reform projects coordinated by the European Commission, are aimed at Italian and foreign under- and post-graduate students, as well as professionals (the latter being entitled to continuing legal education credits).

To register (for the entire program or only for some modules), please fill in and submit, no later than Monday, March 1, 2021, the registration form retrievable here.

See here the Full Programme.

The author of this post is Ségolène Normand, Postgraduate Student in Private Law at the University of Valenciennes.

Digital technology has been investing all areas of society and its potential seems unlimited. At the global level, public institutions are progressively transforming in favour of eGovernment which involves rethinking both organisation and process, so that public services can be delivered online, quickly and at a lower cost for individuals and businesses (see for instance here). States are also investing massively in the digitisation of their justice system and national courts have to adapt to this new paradigm, irrespective of the type of disputes – domestic or cross-border – they are dealing with. Digitalisation has no borders.

Against this backdrop, the use of new technologies can facilitate the resolution of cross-border disputes, as it helps justice being faster, more accessible and efficient. The distance between courts and litigants may be removed by online hearings and proceedings. Digitalisation also makes cross-border judicial cooperation easier, in particular through the dematerialisation of circulation of procedural documents between courts, legal professionals and litigants. This trend has recently been illustrated by the recast of the Taking of evidence and Service Regulations (announced here) within the European Union (“EU”) and is one of the axioms of the modernisation of the European judicial area in civil matters (see here).

A seminar on Digital technology in family matters organised by the Academy of European Law (ERA) on 27 January 2021 gives me the opportunity to focus on digital justice in cross-border dispute resolution. What are the main tendencies of digital justice for international families worldwide? Does digitalisation lead to different ways and results in the legal and judicial treatment of family matters, as in other fields of private law?

On the one hand, digitalisation can contribute to promoting family mobility and ease dispute resolution. For instance, the translation of judgements by artificial intelligence (AI) may simplify the recognition of families’ documents in the receiving States. On the other hand, family legal issues often involve vulnerable parties and, therefore, deserve a specific attention within the process of digitalisation of justice.

This ERA seminar gave interesting insights on digitalisation of family justice, that I propose to share with the readers of the blog. The seminar brought together practitioners (professors, judges, lawyers, mediators…) from different jurisdictions, in order to present their national, as well as international experiences on digitalisation of family justice (1), the use of e-Codex in European cross-border procedures (2) and finally on legal tech and AI in family matters (3). The report is limited to some aspects of their contributions, with a private international law perspective.

Several speakers presented various national digital progress in family law.

First, Annette Kronborg (Southern University of Denmark) screened the “mandatory digital application” and the “recovery of maintenance obligation” in Denmark. Unlike other Members States, Denmark introduced early the digitalisation in the family justice system. In fact, the first policy paper on digitalisation was introduced in 2001. The establishment in 2014 of a “mandatory digital application” introduced a digital communication between citizens and public authorities through a software application. And since 2015, a new digital authority has been centralising maintenance debts. But, according to the speaker, it must be reformed to be more efficient.

Second, Bregje Dijksterhuis (Molengraaff Institute for Private Law) explained the online divorce proceeding in the Netherlands. Thanks to “Rechtwijzer”, spouses can divorce online. It is up to them to decide what type of measures for their divorce they want. The project is a success for the user; nevertheless, lawyers criticise the lack of information on spouse’s rights.

Third, Yuko Nishitani (Kyoto University) presented the project of online marriages and divorces in Japan. Indeed, since the pandemic, Japan’s authorities plans to digitalise marriage and divorce as well as replace traditional administrative (paper) documents. Moreover, Japanese authorities envisage a legislative reform following the Resolution of European Parliament of 8 July 2020 on the international and domestic parental abduction of EU children in Japan. Since there is no possibility under Japanese law to obtain shared or joint custody, there is a significant number of unsolved parental child abduction cases where one of the parents is an EU national and the other is a Japanese national.

Joanna Guttzeit (Judge at the District Court Berlin & Liaison Judge of the International Hague Network of Judges and the EJN in Civil and Commercial Matters) focused on cross-border family procedures and online hearings.

In the EU, the general statutory duty to hear in-person the participants to the proceeding (especially children) for family courts can lead to the refusal of recognition for judgements in the field of parental responsibility in case of online hearings. This results from Article 23 of the Brussels II bis Regulation. Traditionally, families travelled to the courts to be heard. But with the advent of new technologies, family courts could proceed to online hearings if a family member is unable to travel. However, some EU Member States might refuse to recognise the judgment in such circumstances.

The pandemic speeds up online-hearing in many European countries, such as Spain, Poland and Germany. However, online hearing should be exceptional and never become the “normal rule”, in particular within proceedings implying children. The procedures have to guarantee the welfare of children. Some States, like Germany, are really strict on this point. This is the reason why the EU Members States should harmonise their procedures by following European guidelines.

Then, Cristina Gonzàlez Beilfuss (University of Barcelona) discussed digitalisation of cross-border judicial procedures.

Undeniably, the pandemic shows that digital development in Europe could be a real opportunity to improve cross-border judicial cooperation. This is why the European Commission promotes national reforms in the field. The use of new technologies is, according to the Commission, the more efficient way to encourage exchanges between competent authorities in the area of mutual legal assistance. A vast majority of participants during the seminar, thought this communication should be predominantly digital in the future, while a minority thought it should be exclusively digital.

Actually, the main issue is the assessment of the legal effect or admissibility of the electronically determined document and the applicable law. It should be governed by the law of the requesting State. Pr. Gonzàlez Beilfuss proposed to harmonise the diffusion methods of electronic documents between the courts of the EU Member States to have a more predicable cross-border proceeding for international families. Regarding the legal effect, it cannot be denied on the sole ground that it is an electronic means of obtaining a judgment.

To conclude this session, Xavier Thoreau (Council of the European Union) presented e-CODEX and the new EU initiatives for the digitalisation of justice systems (here and here).

E-CODEX is a project established by the European Commission, in order to facilitate secure exchanges of data between legal professionals and litigants in different EU Member States. It consists of a package of software components that enable the connectivity between national systems. In cross-border proceeding, e-CODEX allows to establish a bridge between national systems. For the Commission, e-CODEX is the reference for secure digital communication in cross-border legal proceedings.

More than half of the participants rarely or never received in the context of their legal practice requests in electronic format by e-CODEX. According to Xavier Thoreau, this is problematic and shows that EU ambition to use the e-CODEX system to support national digitalisation of cross-border as well as domestic justice may take a long time. This is also supported by the fact that the EU has only a “subsidiary jurisdiction” in domestic family procedure.

Markus Hartung and Ulrike Meising (lawyers) presented with Alan Larking (Family Law Patners, Brighton) the potential of AI and legal tech in the lawyer’s work.

AI and legal tech are great tools to help lawyers. From now on, they have an unlimited access to the law. In particular, they have an easier access to the law of other Member States, which is useful in the presence of foreign components in legal disputes. Increasingly, online applications with algorithms rank the dispute resolution models. For example, some law firm websites provide clients with a form to fill in online and an algorithm proposes a legal solution. Digital cross-border dispute resolution is possible since online applications are capable to adapt to each family model. However, a lawyer should always control the solution introduced by the algorithm.

Finally, Bérénice Lemoine (Council of the European Union) concluded with some thoughts on legal tech in family matters. Yet, the development of digitalisation of family justice in Europe is still far from uniform. For instance, only 24% of EU Member States integrate the issuance of “multilingual standard forms” of the Regulation on Public Documents, whereas in 54% of Member States, the possibility does not exist. Indeed, European citizens are not required to provide an official translation of family documents. They can ask the authorities of the EU country that issued their document to provide a “multilingual standard form” to facilitate its recognition in the receiving State. In the same vein, in 15% of Members States, official court documents cannot be served electronically on citizens and businesses. And for a third of them, evidence submitted in digital format is not deemed admissible. According to Bérénice Lemoine, it is not only necessary to encourage Member States to use already available legal tech and quickly develop them, but also to start the digital Justice transformation in those States which are less advanced, with the aim of having a more efficient resolution cross-border family procedure. For that, the EU offers a financial support (see Tool 1 of COM/2020/710 final).

Non-lieu à renvoi

Non-lieu à renvoi

The post below was written by Andrew Dickinson, Fellow of St Catherine’s College and Professor of Law, University of Oxford. It is the the first contribution to an on-line symposium devoted to the fate of the 1968 Brussels Convention: further contributions will be published on this blog in the coming days.

The symposium follows a lively exchange prompted by a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti.

Readers are encouraged to share their comments to the contributions. Those wishing to submit a full contribution to the on-line symposium are invited to get in touch with Pietro Franzina at pietro.franzina@unicatt.it.

In recent months, rumours have circulated in social media and the blogosphere that the Brussels Convention (*see below) is to launch a “Brexit revival tour” in the courts of its Contracting States. This appears, in part at least, to be an exercise in wishful thinking by supporters of closer judicial cooperation in civil and commercial matters between the EU’s Member States on the one hand and their former partner, the UK, on the other.

More recently, the permanent representative of the UK Government, the operator of the UK venues, has written to the Secretary-General of the EU Council to deny their involvement in any revival. Although other members have hitherto remained silent, their longstanding representative, the European Commission, has already expressed its own opinion that there is no role for the Convention in the post-Brexit landscape. In its view, “EU rules on enforcement will not apply to judicial decisions where the original proceedings have been instituted after the end of the [Brexit] transition period”. In the preceding paragraph of its statement, the Commission makes clear that its reference to “EU rules on enforcement” includes the 1968 Brussels Convention, and that the Withdrawal Agreement concluded between the EU and UK should be read in that light.

This appears an opportune moment, as a longstanding afficionado of the Convention, to express my own view: that a comeback tour would as undesirable as it is improbable. Before summarising my reasons for reaching that conclusion, two important points are worth clarifying.

First, despite speculation to the contrary, the Convention has not been “terminated”. As Recital (23) and Article 68 of the Brussels I Regulation make clear, the Convention still applies to the territories of the Member States that fall within Convention’s territorial scope while being excluded from the Regulation by Article 299 of the EC Treaty (now TFEU, Article 355 – see Recital (9) and Article 68 of the Recast Brussels I Regulation. Performances have continued, for example, in Aruba and New Caledonia.

The question which presents itself, therefore, is whether the arrangements put in place by the Convention no longer (from 1 January 2021) apply to relations between the UK, on the one hand, and the other Contracting States or whether the Convention applies with renewed vigour to those relationships now that the EU treaties and the Brussels Regulations no longer apply to the UK. That is a question of modification or suspension, not of termination.

Secondly, although Convention is a treaty, it is not one that is removed from the EU’s legal system: instead, it exists as a satellite and, like a moon orbiting a planet, is subject to the gravitational pull of EU law. Although formally concluded outside the framework of the original EEC/EC Treaty, the Convention is inexorably linked to that Treaty (and the treaties that replaced it):

• through Article 293 (ex-Article 220) of the EC Treaty (which inspired and justified the Convention);
• through its role in strengthening the legal protection of persons in the context of the common, later internal, market: as the Commission stated when it proposed the formation of the Convention between the EEC’s original members, “a true internal market between the six States will be achieved only if adequate legal protection can be secured” (Jenard Report, [1]);
• through the role of the European Court Justice in interpreting its provisions under the 1971 Protocol: from the outset, the ECJ has treated the Brussels Convention as an instrument within the province of EC law and not merely as a standalone international treaty falling to be interpreted according to the rules and principles of public international law: see eg Mund & Fester v Hatrex International Transport, [11]-[12].

If interpretation of the Brussels Convention does fall within the province of EU law, there is no need to treat questions concerning its modification or suspension differently. Indeed, as the question of the Brussels Convention’s status depends upon the interpretation and effect of the EU treaties and of the Brussels Regulations (see below), it is not difficult to see the matter as having its centre of gravity in European Union’s own (autonomous) legal order rather than in public international law (see Wightman v Secretary of State for Exiting the European Union, [44]-[46]). Principles of customary international law, and of the Vienna Conventions insofar as they describe or establish those principles, accordingly, take on a subsidiary role as part of the set of general principles of EU law (Wightman, [70]-[71]).

With these points in mind, let me identify briefly the main reasons for opposing the renewed application of the Brussels Convention to govern jurisdiction and the recognition and enforcement of judgments in matters involving the UK and the other Contracting States from 1 January 2021 onwards:

1. As a matter of first impression, the argument in favour of the “Brexit revival tour” is not a promising one. It involves two linked propositions: (i) the Brussels Convention automatically springs back to occupy the legal domain formerly controlled by the Brussels Regulations, which themselves no longer apply to the UK following the UK’s withdrawal from the EU resulting in the cessation of the EU treaties (TEU, Article 50(3)); and (ii) it does so because the Brussels I Regulation (and Recast Brussels I Regulation) merely suspended the Convention’s operation as between the (then) Member States (subjection to the exceptions expressly set out) for the period in which the Regulations remained in force.
2. The first proposition seems counterintuitive: a convention expressly contemplated by the EC Treaty, concluded to achieve close co-operation in the field of civil justice between Member States and to facilitate the functioning of the common (internal) market supposedly acquires new vigour when one of the participating Member States chooses to remove itself from the EU on terms that bring an end to its participation in the internal market and that make no provision for continued co-operation in civil justice matters.
3. Although the Brussels Convention was, admittedly, concluded for an unlimited period (Article 67), this was done at a time when the EC Treaty did not (at least expressly) contemplate that a Member State might withdraw from the Community. As its Preamble emphasises, the parties to the Convention acted in their capacity as parties to the EC Treaty.
4. The Preamble to the 1978 Convention of the Accession of the UK, alongside Denmark and Ireland, to the Brussels Convention records that the three States had “in becoming members of the Community” undertaken to accede to the Brussels Convention (see Article 3(2) of the Accession Treaty). Article 39 of the 1978 Convention refers to the UK as a “new Member State”. This highlights the awkward nature of the proposition that the Convention should spring back on the occasion of the UK becoming a former Member State.
5. As to the second proposition, the Brussels I Regulation was also adopted at a time when the EC Treaty (amended by the Treaty of Amsterdam) did not (at least expressly) contemplate that a Member State might withdraw. Its recitals refer to the progressive establishment of the area of freedom, security and justice to facilitate the internal market (Recital (1)), to the work done within the EU’s institutions to revise the Brussels Convention (Recital (5)), to the need to replace the Convention with a Community legal instrument (Recital (6)) and to the desire to ensure continuity between the Convention and the Regulation (Recital (19)). These matters, as well as the explicit reservation of the Convention’s application to overseas territories to which the Regulation did not apply (Recital (23)), point overwhelmingly to a movement in one direction only, with the Regulation permanently overriding the Convention within the Regulation’s sphere of operation.
6. Although the language of Article 68 of the Brussels I Regulation (in the English language version: “supercede”, “replaces”; in the French, “remplace”; in the German, “tritt … an die Stelle”, “ersetzt”) is not unambiguous, a contextual and teleological interpretation of this provision strongly favours the conclusion that the intention of the EU and of its Member States was that the Regulation would permanently replace the Convention in relations between the Member States (rather than suspending its operation for the period in which the Regulation remained in force).
7. Admittedly, if one reaches that conclusion, it rather begs the question why (if Article 68 of the Regulation adopted in 2000 had overridden the Convention once and for all), the legislator considered it necessary to carry that provision forward into Article 68 of the Recast Brussels I Regulation. This can, however, be explained as a sensible measure to account for the relationship of the three instruments and the need for continuity from the original Convention, via the original Regulation to the recast Regulation (see Recitals (7)-(9) and (34) of the recast Regulation). (In any event, for reasons of legal certainty, the relationship between the Convention and the original Brussels I Regulation should be determined without reference to the later, recast Regulation.)
8. Understandably, the thirteen Member States who joined the EU after the enactment of the Brussels I Regulation were not required in their accession treaties to join the Brussels Convention. A reading of Article 68 of the Regulation that merely suspended the Convention in relations between the UK and the other Contracting States would produce an arbitrary and unsatisfactory schism between “old” and “new” Member States. It would also undermine the exclusive external competence of the EC/EU in this field generated by the adoption of the Regulation.
9. Although its supporters still rightly endorse its virtues, the Brussels Convention is, uncontroversially, “old technology”. Recital (5) of the original Brussels I Regulation accepted the need to update it, and the EU’s approach to questions of jurisdiction and the recognition and enforcement of judgments evolved further with the recast Regulation.
10. At a time when parties to the Lugano Convention are pressing for an update to bring it into line with the recast Regulation and a review of the Regulation lies in the not too distant future, it offends common sense to suggest that the EU’s acquis should be interpreted in a way that produces the result that fourteen of the EU’s Member States and its one former Member State are required to re-establish close (but outdated) treaty relations in the field of civil justice, while the others must deal with the UK on the basis of national law rules alone.
11. The UK and the Commission are right to reject the revival of the Brussels Convention. It is best for all of us that we live with our warm memories of its back catalogue, and use them to press for closer civil justice cooperation in the future between the legal systems of the UK and the EU. The 2007 Lugano Convention is the right place to start.

(*) The Brussels Convention (or to use the full title Convention on jurisdiction and the enforcement of judgments in civil and commercial matters), initially formed in 1968, and reformed on a number of occasions since (most recently in 1998, has 15 members (“Contracting States”) being the first fifteen Member States of the European Communities. Member States joining the European Union after 1998 (13 in total) are not members of the Convention.