THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING
THE EUROPEAN ECONOMIC COMMUNITY,
CONSIDERING that the Kingdom of Spain
and the Portuguese Republic, in becoming members of the Community,
undertook to accede to the 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, with the adjustments made to them
by the Convention on the accession of the Kingdom of Denmark, of Ireland
and of the United Kingdom of Great Britain and Northern Ireland and the
adjustments made to them by the Convention on the accession of the
Hellenic Republic, and to this end undertook to enter into negotiations
with the Member States of the Community in order to make the necessary
adjustments thereto,
MINDFUL that on 16 September 1988 the Member
States of the Community and the Member States of the European Free Trade
Association concluded in Lugano the Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters, which extends
the principles of the Brussels Convention to the States becoming parties
to that Convention,
HAVE DECIDED to conclude this Convention and to
this end have designated as their Plenipotentiaries:
The de
Almeida Cruz, Desantes Real, Jenard Report on the Convention on the
Accession of Spain and Portugal will also be published in the same section
of the Official Journal.
HIS MAJESTY THE KING OF THE BELGIANS:
Mr
Jacques de LENTDECKER
Head of Private Office of the Ministry of
Justice
HER MAJESTY THE QUEEN OF DENMARK:
Mrs Jette Birgitte
SELSOE
Chargé d'Affaires a.i. at the Embassy of Denmark in
Madrid
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY:
Dr Georg
TREFFTZ
Minister Plenipotentiary at the Embassy of the Federal Republic
of Germany in Madrid
Dr Klaus KINKEL
State Secretary at the Federal
Ministry for Justice
THE PRESIDENT OF THE HELLENIC REPUBLIC:
Mr
Giannis SKOULARIKIS
Minister for Justice
HIS MAJESTY THE KING OF
SPAIN:
Mr Enrique MUGICA HERZOG
Minister for Justice
THE
PRESIDENT OF THE FRENCH REPUBLIC:
Mr Pierre ARPAILLANGE
Keeper of
the Seals
Minister for Justice
THE PRESIDENT OF IRELAND:
Mr
Patrick WALSHE
Ambassador Extraordinary and Plenipotentiary of Ireland
to Spain
THE PRESIDENT OF THE ITALIAN REPUBLIC:
Mr Giuliano
VASSALLI
Minister for Justice
HIS ROYAL HIGHNESS THE GRAND DUKE OF
LUXEMBOURG:
Mr Ronald MAYER
Ambassador Extraordinary and
Plenipotentiary of Luxembourg to Spain
HER MAJESTY THE QUEEN OF THE
NETHERLANDS:
Mr Frits KORTHALS ALTES
Minister for Justice
Mr J.
SPOORMAKER
First Secretary at the Embassy
THE PRESIDENT OF THE
PORTUGUESE REPUBLIC:
Mr Fernando NOGUEIRA
Minister responsible for
relations with the Prime Minister's Office and Minister for Justice
HER
MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND:
Mr John PATTEN
Minister of State, Home Office
WHO,
meeting within the Council, having exchanged their Full Powers, found in
good and due form,
HAVE AGREED AS FOLLOWS:
The Kingdom of Spain and the Portuguese
Republic hereby accede to the Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters, signed at
Brussels on 27 September 1968 (hereinafter called 'the 1968 Convention')
and to the Protocol on its interpretation by the Court of Justice, signed
at Luxembourg on 3 June 1971 (hereinafter called 'the 1971 Protocol'),
with the adjustments made to them:
- by the Convention signed at
Luxembourg on 9 October 1978 (hereinafter called 'the 1978 Convention'),
on the accession of the Kingdom of Denmark, of Ireland and of the United
Kingdom of Great Britain and Northern Ireland to the 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,
- by the Convention, signed at Luxembourg on 25 October 1982
(hereinafter called 'the 1982 Convention'), on the accession of the
Hellenic Republic to the 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, with the adjustments made to them
by the Convention on the accession of the Kingdom of Denmark, of Ireland
and of the United Kingdom of Great Britain and Northern Ireland.
The substantive adjustments made by this Convention to
the 1968 Convention and the 1971 Protocol, as adjusted by the 1978
Convention and the 1982 Convention, are set out in Titles II to V. The
formal adjustments to the 1968 Convention, as amended by the 1978
Convention and the 1982 Convention, are set out separately for each
authentic version concerned in Annex I, which forms an integral part of
this Convention.
The following shall be inserted between the
ninth and tenth indents of the second paragraph of Article 3 of the
1968
Convention, as amended by Article 4 of the 1978 Convention and
Article 3 of the 1982 Convention:
'- in Portugal: Article 65 (1) (c),
Article 65 (2) and Article 65A (c) of the code of civil procedure (Código
de Processo Civil) and Article 11 of the code of labour procedure (Código
de Processo de Trabalho),'
The following shall be
substituted for Article 5 (1) of the 1968 Convention, as amended by
Article 5 of the 1978 Convention:
'1. in matters relating to a
contract, in the courts for the place of performance of the obligation in
question; in matters relating to individual contracts of employment, this
place is that where the employee habitually carries out his work, or if
the employee does not habitually carry out his work in any one country,
the employer may also be sued in the courts for the place where the
business which engaged the employee was or is now situated;'.
The following point 4 shall be added to Article 6 of the 1968
Convention:
'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 rem in immovable property, in the court of the Contracting
State in which the property is situated.'
The following
shall be substituted for Article 16 (1) of the 1968 Convention:
'1.
(a) in proceedings which have as their object rights in rem in immovable
property or tenancies of immovable property, the courts of the Contracting
State in which the property is situated;
(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 domiciled shall
also have jurisdiction, provided that the landlord and the tenant are
natural persons and are domiciled in the same Contracting State;'.
In Article 17 of the 1968 Convention, as amended by
Article 11 of the 1978 Convention,
- the following shall be
substituted for the first paragraph:
'If the parties, one or more of
whom is domiciled in a Contracting State, 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:
(a) in writing or evidenced in writing, or
(b) in a form
which accords with practices which the parties have established between
themselves, or
(c) in international trade or commerce, in a form which
accords with a usage of which the parties are or ought to have been aware
and which in such trade or commerce is widely known to, and regularly
observed by, parties to contracts of the type involved in the particular
trade or commerce concerned.
Where such an agreement is concluded by
parties, none of whom is domiciled 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.';
- the
following shall be added as a final paragraph:
'In matters relating to
individual contracts of employment an agreement conferring jurisdiction
shall have legal force only if it is entered into after the dispute has
arisen or if the employee invokes it to seise courts other than those for
the defendant's domicile or those specified in Article 5 (1).'
The following shall be substituted for Article 21 of the 1968
Convention:
'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 seised
shall of its own motion stay its proceedings until such time as the
jurisdiction of the court first seised is established.
Where the
jurisdiction of the court first seised is established, any court other
than the court first seised shall decline jurisdiction in favour of that
court.'
The following shall be substituted for the first
paragraph of Article 31 of the 1968 Convention:
'A judgment given in a
Contracting State and enforceable in that State shall be enforced in
another Contracting State when, on the application of any interested
party, it has been declared enforceable there.'
The
following shall be inserted between the fourth and fifth indents of the
first paragraph of Article 32 of the 1968 Convention, as amended by
Article 16 of the 1978 Convention and Article 4 of the 1982 Convention:
'- in Spain, to the Juzgado de Primera Instancia,'
and the
following shall be inserted between the ninth and tenth indents thereof:
'- in Portugal, to the Tribunal Judicial de Círculo,'.
1. The following shall be inserted between the fourth and fifth
indents of the first paragraph of Article 37 of the 1968 Convention, as
amended by Article 17 of the 1978 Convention and Article 5 of the 1982
Convention:
'- in Spain, with the Audiencia Provincial,'
and the
following shall be inserted between the ninth and tenth indents thereof:
'- in Portugal, with the Tribunal da Relaçao,'.
2. The following
shall be substituted for the first indent of the second paragraph of
Article 37 of the 1968 Convention, as amended by Article 17 of the 1978
Convention and Article 5 of the 1982 Convention:
'- in Belgium,
Greece, Spain, France, Italy, Luxembourg and in the Netherlands, by an
appeal in cassation,'
and the following shall be inserted between the
fourth and fifth indents thereof:
'- in Portugal, by an appeal on a
point of law,'.
The following shall be inserted between
the fourth and fifth indents of the first paragraph of Article 40 of the
1968 Convention, as amended by Article 19 of the 1978 Convention and
Article 6 of the 1982 Convention:
'- in Spain, to the Audiencia
Provincial,'
and the following shall be inserted between the ninth and
tenth indents thereof:
'- in Portugal, to the Tribunal da Relaçao,'.
The following shall be substituted for the first indent
of Article 41 of the 1968 Convention, as amended by Article 20 of the 1978
Convention and Article 7 of the 1982 Convention:
'- in Belgium,
Greece, Spain, France, Italy, Luxembourg and in the Netherlands, by an
appeal in cassation,'
and the following shall be inserted between the
fourth and fifth indents thereof:
'- in Portugal, by an appeal on a
point of law,'.
The following shall be substituted for
the first paragraph of Article 50 of the 1968 Convention:
'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 Article 31 et seq. The application may
be refused only if enforcement of the instrument is contrary to public
policy in the State addressed.'
The third paragraph of
Article 52 of the 1968 Convention shall be deleted.
The
following shall be substituted for Article 54 of the 1968 Convention:
'Article 54
The provisions of the Convention shall apply only to
legal proceedings instituted and to documents formally drawn up or
registered as authentic instruments after its entry into force in the
State of origin and, where recognition or enforcement of a judgment or
authentic instrument is sought, in the State addressed.
However,
judgments given after the date of entry into force of this Convention
between the State of origin and the State addressed in proceedings
instituted before that date shall be recognized and enforced in accordance
with the provisions of Title III if jurisdiction was founded upon rules
which accorded with those provided for either in Title II of this
Convention or in a convention concluded between the State of origin and
the State addressed which was in force when the proceedings were
instituted.
If the parties to a dispute concerning a contract had
agreed in writing before 1 June 1988 for Ireland or before 1 January 1987
for the United Kingdom that the contract was to be governed by the law
of Ireland or of a part of the United Kingdom, the courts of Ireland or of
that part of the United Kingdom shall retain the right to exercise
jurisdiction in the dispute.'.
The following Article
shall be added to Title VI of the 1968 Convention:
'Article 54A
For
a period of three years from 1 November 1986 for Denmark and from 1 June
1988 for Ireland, jurisdiction in maritime matters shall be determined in
these States not only in accordance with the provisions of Title II, but
also in accordance with the provisions of paragraphs 1 to 6 following.
However, upon the entry into force of the International Convention
relating to the arrest of sea-going ships, signed at Brussels on 10 May
1952, for one of these States, these provisions shall cease to have effect
for that State.
1. A person who is domiciled in a Contracting State
may be sued in the courts of one of the States mentioned above in respect
of a maritime claim if the ship to which the claim relates or any other
ship owned by him has been arrested by judicial process within the
territory of the latter State to secure the claim, or could have been so
arrested there but bail or other security has been given, and either:
(a) the claimant is domiciled in the latter State, or
(b) the
claim arose in the latter State, or
(c) the claim concerns the
voyage during which the arrest was made or could have been made,
or
(d) the claim arises out of a collision or out of damage caused
by a ship to another ship or to goods or persons on board either ship,
either by the execution or non-execution of a manoeuvre or by the
non-observance of regulations, or
(e) the claim is for salvage,
or
(f) the claim is in respect of a mortgage or hypothecation of the
ship arrested.
2. A claimant may arrest either the particular ship to
which the maritime claim relates, or any other ship which is owned by the
person who was, at the time when the maritime claim arose, the owner of
the particular ship. However, only the particular ship to
which the
maritime claim relates may be arrested in respect of the maritime claims
set out in (5) (o), (p) or (q) of this Article.
3. Ships shall be
deemed to be in the same ownership when all the shares therein are owned
by the same person or persons.
4. When in the case of a charter by
demise of a ship the charterer alone is liable in respect of a maritime
claim relating to that ship, the claimant may arrest that ship or any
other ship owned by the charterer, but no other ship owned by the owner
may be arrested in respect of such claim. The same shall apply to any case
in which a person other than the owner of a ship is liable in respect of a
maritime claim relating to that ship.
5. The expression 'maritime
claim' means a claim arising out of one or more of the following:
(a) damage caused by any ship either in collision or otherwise;
(b) loss of life or personal injury caused by any ship or occurring
in connection with the operation on any ship;
(c) salvage;
(d) agreement relating to the use or hire of any ship whether by
charterparty or otherwise;
(e) agreement relating to the carriage
of goods in any ship whether by charterparty or otherwise;
(f) loss of or damage to goods including baggage carried in any
ship;
(g) general average;
(h) bottomry;
(i) towage;
(j) pilotage;
(k) goods or materials wherever supplied to a
ship for her operation or maintenance;
(l) construction, repair or
equipment of any ship or dock charges and dues;
(m) wages of
masters, officers or crew;
(n) master's disbursements, including
disbursements made by shippers, charterers or agents on behalf of a ship
or her owner;
(o) dispute as to the title to or ownership of any
ship;
(p) disputes between co-owners of any ship as to the
onwership, possession, employment or earnings of that ship;
(q) the
mortgage or hypothecation of any ship.
6. In Denmark, the expression
'arrest' shall be deemed as regards the maritime claims referred to in 5
(o) and (p) of this Article, to include a 'forbud', where that is the only
procedure allowed in respect of such a claim under Articles 646 to 653 of
the law on civil procedure (lov om rettens pleje).'
The
following shall be inserted at the appropriate places in chronological
order in the list of Conventions set out in Article 55 of the 1968
Convention, as amended by Article 24 of the 1978 Convention and Article 8
of the 1982 Convention:
'- the Convention between Spain and France on
the recognition and enforcement of judgment and arbitration awards in
civil and commercial matters, signed at Paris on 28 May 1969,
'- the
Convention between Spain and Italy regarding legal aid and the recognition
and enforcement of judgments in civil and commercial matters, signed at
Madrid on 22 May 1973,
'- the Convention between Spain and the Federal
Republic of Germany on the recognition and enforcement of judgments,
settlements and enforceable authentic instruments in civil and commercial
matters, signed at Bonn on 14 November 1983.'
The
following shall be substituted for Article 57 of the 1968 Convention, as
amended by Article 25 of the 1978 Convention:
'Article 57
1. This
Convention shall not affect any conventions to which the Contracting
States are or will be parties and which in relation to particular matters,
govern jurisdiction or the recognition or enforcement of judgments.
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 is domiciled 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;
(b) judgments given in a
Contracting State by a court in the exercise of jurisdiction provided for
in a convention on a particular matter shall be
recognized and enforced
in the other Contracting State in accordance with this Convention.
Where a convention on a particular matter to which both the State of
origin and the State addressed are parties lays down conditions for the
recognition or enforcement of judgments, those conditions shall apply. In
any event, the provisions of this Convention which concern the procedure
for recognition and enforcement of judgments may be applied.
3. This
Convention shall not affect the application of provisions which, in
relation to particular matters, govern jurisdiction or the recognition or
enforcement of judgments and which are or will be contained in acts of the
institutions of the European Communities or in national laws harmonized in
implementation of such acts.'
The following shall be
substituted for Article 58 of the 1968 Convention:
'Article
58
Until such time as the Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters, signed at Lugano
on 16 September 1988, takes effect with regard to France and the Swiss
Confederation, this Convention shall not affect the rights granted to
Swiss nationals by the Convention between France and the Swiss
Confederation on jurisdiction and enforcement of judgments in civil
matters, signed at Paris on 15 June 1869.'
Article 60 of the 1968 Convention, as amended by Article 27 of the 1978
Convention, shall be deleted.
Article 64 (c) of the
1968 Convention shall be deleted.
The following
shall be substituted for Article Vb added to the Protocol annexed to the
1968 Convention by Article 29 of the 1978 Convention and amended by
Article 9 of the 1982 Convention:
'Article Vb
In proceedings
involving a dispute between the master and a member of the crew of a
sea-going ship registered in Denmark, in Greece, in Ireland or in
Portugal, concerning remuneration or other conditions of service, a court
in a Contracting State shall establish whether the diplomatic or consular
officer responsible for the ship has been notified of the dispute. It
shall stay the proceedings so long as he has not been notified. It shall
of its own motion decline jurisdiction if the officer, having been duly
notified, has exercised the powers accorded to him in the matter by a
consular convention, or in the absence of such a convention has, within
the time allowed, raised any objection to the exercise of such
jurisdiction.'
The following paragraph shall be added to
Article 1 of the 1971 Protocol, as amended by Article 30 of the 1978
Convention and Article 10 of the 1982 Convention:
'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.'
The following shall be
inserted between the fourth and fifth indents of Article 2 (1) of the 1971
Protocol, as amended by Article 31 of the 1978 Convention and Article 11
of the 1982 Convention:
'- in Spain: el Tribunal Supremo,'
and the
following shall be inserted between the ninth and tenth indents thereof:
'- in Portugal: o Supremo Tribunal de Justiça and o Supremo Tribunal
Administrativo,'.
Article 6 of the 1971 Protocol,
as amended by Article 32 of the 1978 Convention, shall be deleted.
Article 10 (d) of the 1971 Protocol, as amended by Article 33 of the 1978 Convention, shall be deleted.
1. Articles 25 (2), 35 and 36 of the 1978 Convention shall be
deleted.
2. Article 1 (2) of the 1982 Convention shall be deleted.
1. The 1968
Convention and the 1971 Protocol, as amended by the 1978 Convention, the
1982 Convention and this Convention, shall apply only to legal proceedings
instituted and to authentic instruments formally drawn up or registered
after the entry into force of this Convention in the State of origin and,
where recognition or enforcement of a judgment or authentic instrument is
sought, in the State addressed.
2. However, judgments given after the
date of entry into force of this Convention between the State of origin
and the State addressed in proceedings instituted before that date shall
be recognized and enforced in accordance with the provisions ot Title III
of the 1968 Convention, as amended by the 1978 Convention, the 1982
Convention and this Convention, if jurisdiction was founded upon rules
which accorded with the provisions of Title II of the 1968 Convention, as
amended, or with the provisions of a convention which was in force between
the State of origin and the State addressed when the proceedings were
instituted.
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.
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.
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 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.
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.
1. Article 3
Read second indent of second
paragraph as follows:
'- in Denmark: Article 246 (2) and (3) of the
law on civil procedure (Lov om rettens pleje),'.
2. Article 27
Read
beginning of point 4 as follows:
'4. if the court of the State of
origin, in order . . .'.
Read beginning of point 5 as follows:
'5.
if the judgment is irreconcilable with an earlier judgment given in a
non-contracting State involving . . .'.
3. Article 28
Read end of
second paragraph as follows:
'. . . on which the court of the State of
origin based its jurisdiction.'.
Read beginning of third paragraph as
follows:
'Subject to the provisions of the first paragraph, the
jurisdiction of the court of the State of origin may not be reviewed; . .
.'.
4. Article 30
Read end of second paragraph as follows:
'. .
. if enforcement is suspended in the State of origin by reason of an
appeal.'.
5. Article 32
Read second indent as follows:
'- in
Denmark, to the byret,'.
6. Article 38
Read beginning of first
paragraph as follows:
'The court with which the appeal under Article
37 (1) is lodged may, on the application of the appellant, stay the
proceedings if an ordinary appeal has been lodged against the judgment in
the State of origin or if the time . . .'.
Read beginning of second
paragraph as follows:
'Where the judgment was given in Ireland or the
United Kingdom, any form of appeal available in the State of origin shall
be treated . . .'.
7. Article 43
Read end of Article as follows:
'. . . by the courts of the State of origin.'.
8. Article
44
Read first paragraph as follows:
'An applicant who, in the State
of origin, has benefited from complete or partial legal aid or exemption
from costs or expenses, shall be entitled, in the procedures provided for
in Articles 32 to 35, to benefit from the most favourable legal aid or the
most extensive exemption from costs or expenses provided for by the law of
the State addressed.'
9. Article 47
Read point 1 as follows:
'1.
documents which establish that, according to the law of the State of
origin, the judgment is enforceable and has been served;'.
Read end of
point 2 as follows:
'. . . legal aid in the State of origin.'.
10.
Article 51
Read end of Article as follows:
'. . . enforceable in
the State addressed under the same conditions as authentic instruments.'.
In witness whereof the undersigned, being duly authorized thereto, have
signed this Convention .
Done at Donostia - San Sebastián, on the twenty-sixth day of May in the year one thousand nine hundred and eighty-nine
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