Wednesday, 14 January 2015

Contestable notice on contesting jurisdiction

The new Brussels I Regulation (1215/2012) (recast) intends to improve protection granted to weaker contractual parties in cross-border cases by obliging the national courts in Art. 26 Par. 2 to inform, among other weaker parties, the consumer that he has the right to contest the jurisdiction of the court if this is not the court of the Member State in which the consumer is domiciled. This needs to occur before the court assumes jurisdiction due to the consumer's appearance in this court. Alongside with the warning to the consumer, she should receive an information what happens if she enters or doesn't enter an appearance. The European Judicial Network in civil and commercial matters established a (luckily) non-mandatory standard text for this information (may be found here). I sincerely hope that national courts decide not to follow this advisory text, since in my opinion it fails to provide the most important part of this warning: namely inform the weaker party that it may be a weaker party and therefore could question the jurisdiction under rules as outlined above. See yourself:

"You are being sued before the court of a Member State of the European Union under Regulation 1215/2012.
Under Article 26 of this Regulation the court before which a defendant enters an appearance shall - in principle - have jurisdiction even if jurisdiction cannot be derived from other provisions of the Regulation.
This rule, however, does not apply where appearance was entered to contest jurisdiction.
If you are certain that the court has no jurisdiction under the other provisions of the Regulation, you need not respond to the lawsuit in any way. If you have doubts about the issue of jurisdiction, it is advisable that you challenge jurisdiction of the court prior to entering into the subject-matter of the lawsuit.

How is the consumer to be certain that the court has no jurisdiction if she is not informed that:
1. special jurisdiction rules apply to consumers;
2. what these rules are?

Are we now assuming that every EU consumer is familiar with Brussels I Regulation (recast) and can understand its provisions?

And even if by chance the consumer had doubts about the jurisdiction, the information on how to challenge jurisdiction is missing from the notice. While short information notices are to be recommended, in the interest of brevity the most important information should not be left out.

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