Domicile under Brussels I Regulation

    Zdeněk Nový

    4th Session

                                    The aims of the presentation

n  To provide an overview of domicile as connecting factor under Brussels I Regulation



                                           General jurisdiction
                                            based on domicile

n  Art. 2(1) Regulation:

  ¨  Subject to this Regulation, persons domiciled in a Member State shall, whatever their
  nationality, be sued in the courts of that Member State

                    The rationale for domicile as       general jurisdictional rule

n  Actor sequitur forum rei → Natural forum

n  Predictability and legal certainty

n  Jurisdictional rules which depart from this gen.rule can only be used in the specific cases as
expressly provided for in the Regulation

                                Domicil of natural persons (art. 59)

n  1. In order to determine whether a party is domiciled in the Member State whose courts are seised
of a matter, the court  shall apply its internal law.

n  2. In order to determine whether the party is domiciled in another Member State, the court shall
apply the law of that Member State.

                           Lack of autonomous def. of        natural person

n  Domicile of natural persons is not defined autonomously in the Regulation

n  Grounds: Huge differences in the understanding of domicile among  MS (esp. GB and Ireland v
continental legal systems)



                                            Moment of domicile

n  Moment of a domicile – moment of instituting the proceedings is decisive

n  Changes in domicile in time - perpetuatio fori, i.e. court retains its jurisdiction



                     Domicil of companies, other legal persons, associations …

n  Art. 60 reg.

n  Autonomous definition of domicile

n  Domiciled at the place where it has (criterions to ascertain domicile):

  ¨  Statutory seat

  ¨  Central administration

  ¨  Principle place of business

                                   Company or other legal persons

n  Divide natural persons and the other persons

n  Encompasses also organisations not having legal personality(e.g.):

  ¨  Smlouva o sdružení (§ 829 Czech Civil Code)

  ¨  Partnership ( English law)

  ¨  Societ`a semplice (Italian law)

  ¨  European Company, European Economic Interest Grouping (uder specific Regulations)

                                Criterions for ascertaining domicile

n  These three criterions taken from art. 48 TEC

n  There is no heirarchy among these criterions

n  Criteria are equall but exhaustive

                                              Statutory seat

n  Legal person has its statutory seat in MS where is incorporated

n  it could be find in a public register (e.g. Obchodní rejstřík)

n  Unknown to the legal systems of the UK and Ireland → special provision(art. 60/3/
Regulation)

n  Legal concept ( it need not to be identical with real seat)

                                         Central Administration

n  Management and control center

n  So called real seat

n  Less easier to ascertain than statutory seat ( it will depend on claimant to prove this place as
a domicile)

n  Factual concept

                                    Principal place of business

n  Where the main business activities are located (cf also art. 4(2) Rome Convention)

n  Factual concept

n  Do not confuse with  ‘branch, agency or other establishment’ according to art. 5(5) Regulation



                                        Domicile in practice 1

n  Example 1:

n  Company C has its statutory seat in Czech Republic, central administration in Czech Republic and
principal place of business, surprisingly, in Czech Republic

n  Where could be C sued?

                           Domicile of legal persons in           practice 2

n  Example 2:

n  Company C has its statutory seat in Netherlands, its central administration is in Germany  and
principle place of business in Greece

n  C could be sued in every of these MS

                                        Domicile in practice 3

n  Example 2:

n  Company C is registered in Delaware, USA and has its central administration in Germany and its
princple place of business is France

n  C could be sued in Germany or France

                                                 Conclusion

n  Legal person or similar persons under art. 60 may have more than 1 domicile

n  Potentially, legal person could be sued in 1-3 MS (only the rules of domicile taken into account,
letting aside special jurisdictions etc.)



                      Exclusive jurisdiction under art.       22(2) Regulation

n  Proceedings which have as an object the validity of he constitution, the nullity or the
dissolution of companies or other legal persons, associations and so forth, or of the validity of
the decisions of their organs, the court of MS, where company and other similar persons has its
seat. The court of MS shally apply its PIL to determine the seat.

n  The exception to art. 60