Conventions and other international instruments Developments in PIL Normative texts

Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?

Update — In light of the interest triggered by this post, an on-line symposium has been organised on this blog to discuss the fate of the 1968 Brussels Convention. The first contribution, by Andrew Dickinson, can be found here.

Brexit has dealt a major blow to judicial cooperation in Europe. With the end of the transition period, the Brussels I bis Regulation became inapplicable in the relation between the UK and the EU. Some authors, however, took the view that the Regulation’s predecessor, the Brussels Convention of 1968, would continue to apply (see e.g. here and here). The main argument was that the Brussels Convention is an international treaty and not an instrument of EU law. Moreover, and contrary to the Rome Convention on the law applicable to contractual obligations, the Brussels Convention had not been fully replaced by a regulation and continued to apply with regard to some overseas territories.

This debate seems now to come to a close. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The unofficial document was posted on Twitter by Steven (“Steve”) Peers from the University of Essex (thanks to Felix Krysa for sharing the tweet with me). It reads in relevant part:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the Brussels Convention 1968 and the 1971 Protocol, including subsequent amendments and accessions, ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom ceasing to be a Member State of the European Union and of the end of the Transition Period.

Does this finally close the argument? Not for sure. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty.

Since the Brussels Convention bound the UK to no less than 14 EU Member States, it may take some time and effort to reach agreement that the Brussels Convention is all over. The mere information of the European Council by the British government is certainly not sufficient. Of course, the EU and the UK could also enter into a new treaty. The British government has lodged an application to join the Lugano Convention, but it is still awaiting an answer from the EU.

13 comments on “Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?

  1. Thanks Matthias for this interesting analysis. What is unclear to me is why the UK would want to repudiate the Brussels Convention while applying to join the Lugano Convention. Is it to put pressure on the EU to allow their application? Because, if the UK prefers Lugano over the common law regime, I am not sure why they would prefer the common law over the Brussels Convention.

    • Alex Layton

      Good point Gilles. It’s another manifestation Brexit-psychosis. Lugano is seen as an instrument outside the EU, not subject the CJEU control. Note the denunciation of the 1971 Protocol as well as the Brussels Convention.

  2. Alex Layton

    Yes, Matthias. But within the UK it finally died when the legislation which gave it effect was repealed on 31 December 2020 (transitional provisions apart). I can’t see any other country applying it in those circumstances. Not so much Baby Blue, as Norwegian Blue Parrot (apologies to Monty Python fans).

  3. Tonight we have a conference on Brexit and Private International Law (in Greek). I will speak about issues of recognition and enforcement of UK judgments in Greece. I understand that Matthias considers that the Brussels Convention may be applied after 1/1/2021. Reading Mr. Layton’s comment, I understand that pertinent UK legislation has been repealed. Hence my question: If a judgment creditor wants to declare enforceable a UK judgment in Greece, issued after 1/1/2021, and not fulfilling the transitional requirements under Article 67(2)(a) Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, should the Greek court invoke the Vienna Convention and apply the Brussels Convention?

  4. Eduardo Álvarez-Armas

    Thanks Matthias for sharing these thoughts; totally agree with you: the Brussels Convention is still in force and binds both many EU Member States and the United Kingdom until appropriate steps are taken under public international law.

    As Alex very rightly points out, as a matter of domestic law (the United Kingdom being a dualist country) internal legislation giving effect to international treaties is required to allow individuals to assert treaty-derived rights before courts, and due to the Withdrawal Act, most EU legislation has been repealed internally, which would include any embodiment of the Brussels Convention.

    However, this only affects the possibility for individuals to plead and have applied the Brussels Convention before UK courts, it does not affect the fact that the UK remains bound under public international law, or the possibility for other State-parties to apply it. So here, I politely dissent from Alex´s view when he says that he can’t see any other country applying it in current circumstances. Other State-parties may and should resort to it as appropriate, for they are bound by it.

    So while “UK” claimants will not be able to use the Brussels Convention to sue EU-domiciled defendants before UK courts (resorting to contract and tort criteria of jurisdiction, for instance), “EU” claimants should be able to sue UK-domiciled defendants on the basis of relevant provisions of the Brussels Convention, where appropriate. I acknowledge that this may not be “a walk in the park”, and trouble may come, for instance, at enforcement stage unless the defendant has assets somewhere in the EU. But it is indeed available as an option.

  5. François Mailhé

    Thank you Matthias for this very interesting reminder. I actually also wondered about the Lugano convention.

    According to art. 72 of the Convention, parties to the Convention have a full year to notify their acceptance of a new member starting the day the application to accede to the Convention is deposited to the Depositary, the Swiss confederation.

    The application has been deposited by the UK on April 8th, 2020, which leaves now less than 2 months for members to notify their acceptance if I am correct : do you or anybody know whether any of them has already formally notified it?

  6. François Mailhé

    And now reading the following topic on reciprocity, it might indeed be a problem.

    Art. 55 French Constitution (and Art. 60 1969 Vienna Convention) allows for the non application of an international treaty in cases of non reciprocity. Plus, the ECHR has even compelled courts to deal with the evaluation of it themselves and not to leave it to a diplomatic authority (ECHR, 13 Feb. 2003, n° 49636/99, Chevrol vs France). Our courts seem reluctant to engage on such a path, but the law would allow for the non application.

    Now, I am more reluctant myself to consider that a party could get by a violation (non application) what it could not get by consent (termination of the treaty)… But I am not familiar enough with international law and maybe someone better informed would be interested in clarifying that.

  7. Costanza Honorati

    Thank you Matthias for raising such an interesting question, which imply issues of PIL, EU and public international law.
    If I may add a note on the public international level, I would say that the 1968 Brussels Convention (better said: the 1978 Luxembourg Convention, on the Accession of UK, DK, and EI to the 1968 Brussels Conv and tothe 1971 Protocol) is to be governed by international law rules and not EU rules.
    The unilateral declaration of UK is not enough to terminate the convention on the international level, but it is certainly enough to withdraw UK from the international treaty. However, the fact that UK has left the EU is irrelevant.
    I would think then that the UK declaration could not have a retroactive effect and could not take effect from the 1st January 2021, as stated in the unofficial declaration that has been posted.
    It should instead follow the rules on the taking of effect of a declaration of accession and ratification, i.e. take effect on the first day of the third month following the deposit of the such instrument( see article 39 of the 1978 Luxembourg Convention).

    Assuming the deposit of withdrawal is done in Feb, withdrawal of UK should take effect from the 1st of May 2021. It is open for question whether such a date should be binding also on UK courts, notwithstanding the internal (unofficial and probably wrong ) declaration. I think it should, but I see it is unlikely given the repeal of the internal law which is necessary in dualist States.
    As the rules in the old Brussels Conv. are inspired to reciprocity, courts of other States party to such a Convention shall not apply the convention when the defendant is domiciled in the UK, nor will they apply the convention to recognition and enforcement of UK decisions.

    Thank you for this interesting thread

  8. Thank you very much for this so stimulating exchange of views. Personally, I would like to point to an aspect which has not yet emerged from previous comments. The 1968 Brussels Convention was premised on former Article 220 EEC Treaty (then renumbered as Article 293 EC Treaty after the Treaty of Amsterdam), conferring a mandate upon the Member States to negotiate among them international conventions providing, among other matters, for the simplification of formalities for the mutual recognition and enforcement of judgments and arbitral awards. As pointed out in the explanatory report to the Brussels Convention, better known as the Jenard Report, from the name of the director in the Belgian Ministry of Foreign Affairs entrusted with its drawing up, the Convention was expressly drafted pursuant to such a mandate and for the purposes of enhancing the achievement of the fundamental freedoms of the then Common Market. Accordingly, I would consider as not entirely ill-founded the view, already defended by Paolo Bertoli in his article in Rivista di diritto internazionale privato e processuale, 2017, p. 599, 608, that the mere fact of the UK’s withdrawal from the European Union amounted, as concerns its participation to the Convention as a consequence of the relevant Accession Convention of 1978, to a fundamental change in the circumstances existing at the moment of its accession to the Convention, which, pursuant to the “rebus sic stantibus” rule codified under Article 62 of the Vienna Convention on the Law of Treaties operates as a clause of termination of the operation of a Treaty. In fact, the fact for the UK to have become a Member State of the EC amounted to an essential prerequisite for its decision to accede to the Convention, something to which it was at the same time entitled and obliged as a new Member State of the EC. Accordingly, the subsequent failing of such a prerequisite can be considered as amounting to a fundamental change of circumstances according to Article 62 of the Vienna Convention on the Law of Treaties, and the note of 29 January 2021 by the British Government referred to by Matthias Lehmann in his post may be considered as little else than a notification of the termination of the Convention vis-à-vis the UK, pursuant to the procedure to be followed with respect to termination of a treaty, as contemplated under Article 65 of the Vienna Convention.
    Furthermore, concerning the alternative offered by the new Lugano Convention of 2007, acceding to the latter would probably provide a more suitable solution in respect of the UK and the EU Member States at the same time, as compared to reviving the largely surpassed Brussels Convention. This both from a formal perspective, considering that, as noted already in previous comments, the 2007 Lugano Convention expressly provides under Article 70, 1, c, for the possibility for States other than EFTA Member States or EC (i.e., EU) Member States acting under the specific circumstances contemplated under lit. b of the same rule, to apply for accession to the Convention, subject to the conditions contemplated under its Article 72, and from a substantive perspective, considering that the the rules contained in the 2007 Lugano Convention are, as it is well known, aligned to the Brussels I system. At the same time, as noted by Burkhard Hess in his paper of January 2018 in the MPILux Research Paper Series, the Lugano option is not without shortcomings. First, the 2007 Lugano Convention does not incorporate the changes to the Brussels I system introduced under the Brussels I-bis Regulation, something which would imply an incomplete alignment to the current Brussels regime, and, second, it would imply adhering to the mechanism of interpretation contemplated under Protocol No 2 to the Convention, which, as Hess noted, is rather a weak mechanism, likely to give rise to divergences in interpretation, due regard had to the peculiarities of the common law tradition. Probably the optimum would be a bilateral agreement EU-UK, as advocated by Hess, but this might prove lenghty and cumbersome to negotiate (see Angelo Davì and Alessandra Zanobetti, in, n. 4/2020, p. xiii, also for further references). In the meantime, while a prospective UK participation to the 2019 Hague Judgments Convention might be a possible solution, even though that convention, as finally adopted, is certainly a quid minus as compared to the Brussels model, the current situation, with a return to common law rules, save for pre-existing bilateral conventions and the 2005 Hague Choice of Court Convention, marks surely a step back as compared to the pre-Brexit framework.

  9. Sorry, I would just add that when I posted my comment, which I had started writing offline, I had not read the last one by Costanza Honorati. The difficulty I would see with her assumption is that, as noted by Matthias Lehmann, pursuant to Article 42 of the Vienna Convention on the Law of Treaties, withdrawal from a treaty may take effect only as provided for under the treaty itself or under the Vienna Convention, and Article 54 of the same convention provides that withdrawal may take place either in conformity with the provisions of the treaty concerned or by consent of all the parties. The Brussels Convention, while contemplating expressly a duty for the new EC Member States to negotiate in order to become parties to the Convention, does not contemplate the possibility of a withdrawal. This should be considered entirely in line with the then prevailing assumption, highlighted by the ECJ in its famous Costa v. ENEL judgment of 1964, that the EC was a community created for an unlimited duration, implying a permanent transfer of sovereignty from its Member States. Article 50 TEU was still a long way to come. It is for that reason that the alternative construction based on Article 62 of the Vienna Convention on the Law of Treaties and the rebus sic stantibus rule sounds as a more persuasive way of overcoming this difficulty.

  10. Burkhard Hess

    Thank you for the interesting comments – yes, it is over, Baby Blue. Brexit ended more than 40 years of fruitful judicial cooperation between the United Kingdom and the other EU Member States. The Brussels Convention (BC) is no longer alive; maybe some outdated bilateral treaties between a few EU Member States are still applicable. The Hague Choice of Court Convention will cover a specific issue: exclusive choice of court clauses – but the concept of an exclusive clause is far from being clear.

    A revival of the Brussels Convention (btw: in which version?) is legally not possible. This Convention was an integral part of EC/EU law – based of article 220 of the Rome Treaty. A note verbale of the EC Commission of 22 October 1959 triggered the negotiations of the BC among the six contracting states. In this note, the Commission already highlighted the function of the Convention to strengthen economic exchanges in the Internal Market (you will find the text in: Hess, Europäisches Zivilprozessrecht (2nd ed. 2021), § 1, para 1.1). For more than 50 years, the ECJ interpreted the Convention as a integral part of Union law, not as a self standing treaty of public international law.

    One might consider applying the VCLT (reflecting customary international law) in order to find out whether the BC has been terminated (in case Brexit revived the BC – what I doubt). Here, I join the opinion of Fabrizio Marongiu Buonaiuti: Brexit amounts to changed circumstances in the sense of articles 62 and 65 VCLT. In its Communication to stakeholders about the consequences of Brexit in the area of Civil Justice (27 August, 2020, REV2) the EU Commission does not mention the Brussels Convention – in this regard, there seems to be a consensus between the UK and the EU (note that the exclusive external competences lies with the Union, and not with the EU Member States / former Contracting Parties of the BC).

    I still do not consider the Lugano Convention a suitable instrument to substitute the Brussels Ibis Regulation (cf. MPILux Working Paper 2/2018). From the perspective of the Union, it would amount to a step back of 20 years within the process of integration as the Lugano Convention corresponds to the old Regulation 44/2001. However, my main concerns relate to the uniform interpretation of the Lugano Convention under Protocol no 2 – there is no hard obligation for the English courts to follow the case law of the CJEU. This protocol is not apt to bridge the divergences between the continental law and the common law. Joining the Hague 2019 Judgments Convention might be a way out. Alternatively, a bilateral convention should be envisaged.

  11. Costanza Honorati

    Thank you Fabrizio and Burkhard for the time taken to comment on my post.

    I certainly agree that among EU Member States the Convention is no more in force and that it was terminated by the subsequent EU Regulation. However, the 1968 Convention is still alive. It is applicable – for example – to the French PTOM (Overseas Countries and Territories Association) and I guess to the Dutch PTOM too.
    These countries are not a part of the EU and they do not apply EU Regulations. Hence the Convention, which as an international treaty applied at the time, is still in force. Although the practical relevance might be very small, I think it shows that the Brussels Convention is still producing effects.
    The French government is actually working at a proposal to reunify the PIL rule on the assumption that the 1968 Convention is still in force

  12. Matthias Lehmann

    Many thanks to all the commentators for this stimulating exchange of view. This is the kind of debate that this blog aims at: open, informed, and thorough. I do not want to stop the discussion, but merely provide an intermediate summary and some more food for thought.

    What we have learnt so far:

    1. The Brussels Convention is a treaty and not an instrument of EU law. Thus, Brexit did not automatically end the applicability of the Convention in the relation between the UK and the EU.

    2. The internal law of a signatory state of the Convention – be it the UK or France – does not determine its obligations under public international law, see the comment by Eduardo Álvarez-Armas.

    3. The grounds for suspending or terminating the Brussels Convention are enumerated in the Vienna Convention on the Law of Treaties.

    4. A treaty can be suspended or terminated in case of a material breach by one party (Art 60 Vienna Convention). As Alex Layton has pointed out, the British legislator has repealed the internal legislation giving effect to the Convention. Whether this amounts to a material breach or whether such breach can only be committed by courts refusing to apply the Convention seems to be an open question.

    5. A fundamental change of circumstances is another reason for terminating or withdrawing from a treaty (Art 62 Vienna Convention). Brexit may be such a fundamental change. Two more conditions must be fulfilled, however:
    (a) the membership in the EU constituted “an essential basis of the consent of the parties to be bound by the treaty”; and
    (b) the effect of Brexit is “radically to transform the extent of obligations still to be performed under the treaty”.
    One may consider condition (a) to be fulfilled as all parties to the Brussels Convention were Member States of the then EEC. Fabrizio Buonaiuti and Burkhard Hess have provided convincing arguments that membership in this organisation was considered an essential basis for acceding to the Convention.
    Condition (b) is more doubtful. On the one hand, it may be argued that the EU Member States cannot be expected to recognise and enforce judgments emanating from the UK as a non-Member State, as Burkhard Hess has underlined. One the other hand, EU Member States also recognise and enforce judgments from non-Member States like Switzerland under the Lugano Convention. Moreover, the Brussels Convention still applies regarding territories outside the EU, as helpfully outlined by Costanza Honorati.

    It is true that the application of the Brussels Convention would be a poor replacement for the Brussels Ibis Regulation. The 1968 Convention is outdated and applies in the most recent version only in relation to 14 Member States. But the alternative, the Lugano Convention is not (yet) available. It must also be borne in mind that judicial cooperation in civil and commercial matters is about the interests of private individuals, not primarily about state relations. The continued applicability of the Convention would benefit British and European citizens alike. Therefore: Let the debate continue!

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