Dickinson on the Fate of the 1968 Brussels Convention: No Coming Back?

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 views by commenting 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.