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Competence of the Community to Conclude the New Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters: Opinion 1/03 of 7 February 2006

Published online by Cambridge University Press:  06 March 2019

Tristan Baumé

Extract

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On March 5, 2003, the Council of the European Union (hereafter the ‘Council’) submitted a request for an opinion to the European Court of Justice pursuant to Article 300 (6) EC. This request was intended to clarify whether the Community had an exclusive or shared competence to conclude a new convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters intended to replace the existing Lugano Convention (hereafter the ‘new Lugano Convention’ or the ‘envisaged agreement’).

Type
Developments
Information
German Law Journal , Volume 7 , Issue 8 , 01 August 2006 , pp. 705 - 716
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 Thanks to Felix Ronkes Agerbeek for valuable comments made on the issues discussed in this case note. The views expressed in this case note are the author's only.Google Scholar

2 Pursuant to the Danish Protocol, Regulation No 44/2001 does not apply to Denmark.Google Scholar

3 Opinion 1/76, Draft Agreement establishing a European laying-up fund for inland waterway vessels, 1977 E.C.R. 741, para. 3.Google Scholar

4 Opinion 2/91, ILO Convention on safety in the use of chemicals at work, 1993 E.C.R. I-1061, para. 7.Google Scholar

5 1971 E.C.R. 263.Google Scholar

6 Case C-281/02, Owusu, 2005 E.C.R. I-1383, paras 25-26.Google Scholar

7 Op. cit., paras 28-29.Google Scholar

8 See, Article 101 of the Euratom Treaty which provides that the Community ‘may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with a third State, an international organisation or a national of a third State’.Google Scholar

9 Case 22-70, Commission v Council (ERTA), 1971 E.C.R. 263.Google Scholar

10 Id,para. 17.Google Scholar

11 Id,para. 18.Google Scholar

12 Id,para. 22.Google Scholar

13 If the principle of effet utile was explicitly raised in Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, it should however be noted that it has not been mentioned in Case ERTA.Google Scholar

14 For a useful restatement of the ERTA doctrine, see also the Opinion of Advocat General Poiares Maduro issued on 18 January 2006 in Case C-459/03, Commission v Ireland, 2006, not yet reported, which stresses that ‘where the Treaty provides for concurrent competence, both the Community and the Member States are allowed to undertake obligations themselves with third countries. However, once the Community has undertaken such obligations, or once it has adopted internal measures, Member States are prohibited from undertaking obligations which could affect the common rules thus established’ (para. 23).Google Scholar

15 Joint Cases 3, 4 and 6-76, Kramer, 1976 E.C.R. 1271.Google Scholar

16 Op. cit.Google Scholar

17 Id., para. 3.Google Scholar

18 In that regard, a parallel could be drawn with the prohibition for Member States to further implement Community regulations that do not foresee such national implementation. If the national additional implementation runs counter the direct applicability, which Article 249 EC confers on this legislative instrument, it is also liable to affect the working of the rules contained in the regulation and the attainment of the objective pursued. See Case 93/71, Leonesio, 1972 E.C.R. 287.Google Scholar