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Civil Jurisdiction And Judgments

Volume 181: debated on Monday 26 November 1990

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10.15 pm

I beg to move,

That the draft Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 1990, which was laid before this House on 7th November, be approved.
The purpose of this Order in Council is to enable the United Kingdom to ratify the convention by which Spain and Portugal acceded to the 1968 Brussels convention on jurisdiction and the enforcement of judgments in civil and commercial matters as well as to the 1971 protocol.

The Brussels convention established a scheme to determine the international jurisdiction of the courts of the member states, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments within the Community. The 1971 protocol confers jurisdiction on the Court of Justice of the Community to interpret the convention.

On becoming a member of the Community each state undertakes to accede to the Brussels convention and the protocol. The United Kingdom, Denmark and Ireland acceded by a convention signed on 9 October 1978, and the Brussels convention is now in force in each of those states. Greece acceded by a convention signed on 25 October 1982. That convention was ratified by the United Kingdom last year and came into force on 1 October 1989. The convention on the accession of Spain and Portugal, the two final states, was signed on 26 May 1989.

Section 14 of the Civil Jurisdiction and Judgments Act 1982 provides that Her Majesty may by Order in Council make such modifications of the Act as she considers appropriate in consequence of any revision of the Brussels convention or the protocol. The greater part of the printed order consists of schedules replacing those presently in the 1982 Act.

I shall now deal with changes to the Brussels convention. There are two elements to the changes effected to the 1968 convention by this accession convention. First, there are those changes which are directly consequent upon Spanish and Portuguese accession to the Brussels convention and, secondly, there are some changes of substance. The former are reflected in amendments to the text of the 1982 Act, and include revised definitions of the conventions and of contracting states.

Article 8 amends section 3 of the Act to permit consideration by United Kingdom courts in ascertaining the meaning or effect of any provision of the Brussels convention or the accession conventions and to consider the report on the Spanish and Portuguese accession convention drawn up by three eminent lawyers: Mr. Martinho de Almeida Cruz from Portugal, Mr. Manuel Desantes Real from Spain and the honorary director of administration at the Belgian Ministry of Foreign Affairs, Monsieur Paul Jenard, to whom all hon. Members would expect me to pay special tribute, and who has made an immeasurable contribution to this work over more than 20 years. Section 3 already permits reference to the corresponding reports on the Brussels convention and on the earlier accession conventions.

There are just a few changes of substance to the effect of the Brussels convention. The Civil Jurisdiction and Judgments Bill was introduced in another place on 15 November. The object of that Bill is to enable the United Kingdom to ratify the Lugano convention on jurisdiction and the enforcement of judgments. That convention was drawn up between the member states of the European Community and the member states of the European Free Trade Association, and creates a regime between the states of those two organisations parallel to that of the Brussels convention. Although the provisions of the Lugano convention follow, so far as is appropriate, those of the Brussels convention, the opportunity was taken to incorporate some changes deemed to be necessary in the light of 20 years' experience of the practical operation of the Brussels regime.

Given the parallel nature of these two conventions, it was considered desirable by the working party negotiating the Spanish and Portuguese accession convention to take that opportunity to reflect—if I might call them this—the Lugano improvements back into the 1968 Brussels convention.

Most of these changes are minor, and I shall highlight only three of the more significant. They affect, in matters of detail, the rules on jurisdiction in title II of the 1968 convention. The relevant articles are articles 5, 6 and 16 relating respectively to contracts of employment, matters relating to a contract where the action may be combined with an action relating to rights in rem, and proceedings having as their object tenancies of property for temporary private use.

Thus, in article 5, instead of treating employment contracts in the same manner as all other contracts, it has been decided to introduce an additional element of protection for the employee. Article 6 of the Brussels convention sets out various situations in which a person domiciled in a contracting state may be sued. The Lugano convention added an additional category, and this is now imported into the 1968 convention.

Thus, the revised article permits a person domiciled in a contracting state also to be sued in matters relating to the contract, if the action may be combined with an action against the same defendant in matters relating to rights in property in the court of the contracting state in which that property is situated.

The decision of the Court of Justice in Rösler v. Rottwinkel in 1985 had thrown up a problem in connection with short lets. The court had found itself obliged to interpret article 16(1) literally as meaning that the courts for the place where the property was situated should have exclusive jurisdiction over all actions relating to the property, even in a dispute over rent on a short-term holiday letting in Italy where lessor and tenant were both domiciled in Germany.

The amended form of article 16 will allow jurisdiction to be asserted either by courts of the contracting state in which the property is situated or, in proceedings which have as their object tenancies of property for private use of up to six months, in the courts of the contracting state in which the defendant is domiciled, so long as both the landlord and the tenant are natural persons and are domiciled in the same state. Accordingly, a dispute between an English landlord and tenant over a holiday letting in the Dordogne may now sensibly be heard in the English courts.

These and other changes represent useful improvements, and are to be welcomed. I commend the order to the House as a useful step in the creation of a system of judicial co-operation not only within the Community, but throughout western Europe.

10.22 pm

This may not seem a particularly interesting order, but it is a remarkable tribute to the civilised way in which Europe now deals with these matters. Fifty years ago, it would have been impossible to contemplate a common code of jurisdiction and enforcement of judgments throughout western Europe referring specifically to the internal jurisdiction of each country. These are lawyers' matters, but we should not let the order pass without paying tribute to those who have contributed to the convention, because it is a sign of a civilised society that such matters can be dealt with on the same basis throughout western Europe.

I have two questions. The first is about accession. The Lugano arrangements are in force when one country accedes to them. Is it intended that the whole of the European Community should accede as of one of the Brussels convention, rather than acceding nation by nation? Secondly, to what extent are these arrangements to be extended to countries that are neither in the European Free Trade Association nor the European Community, but are full associates of the Community? One example is Turkey, and clearly, if possible, the same arrangements should apply to such countries.

10.23 pm

With the leave of the House, I shall reply. It is not intended that we should wait until all member states are in a position to accede. They can accede one by one, and it is hoped to make progress soon. Wider extension would require further international agreements, and does not follow from the Brussels and Lugano conventions in themselves. One very much hopes that this sort of international agreement, so rightly commended by the hon. Member for Norwood (Mr. Fraser), will be extended further in due course throughout the civilised world.

Question put and agreed to.


That the draft Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 1990, which was laid before this House on 7th November, be approved.