The European judicial area as a shared toolkit.

The internal market has not unified the substantive legal systems of the Member States. A sales contract remains governed by German, French or Dutch law, and the differences are considerable. What was unified is something else, at least equally important in practice: the question of which court decides, which law it applies, how documents are served and evidence is taken, and under what conditions a decision takes effect in another Member State. This procedural and conflict-of-laws level is the actual subject of this page – and the reason why a matter with parties in three states does not require three separate mandates.

The starting point is the Brussels Ia Regulation. It determines which Member State court has jurisdiction in civil and commercial matters: in principle the court at the defendant’s residence or seat, alongside special forums for example at the place of performance or at the place of the harmful event, and exclusive jurisdictions that cannot be waived by contract. For consumers and employees there are protective forums that can enable an action at one’s own residence and allow jurisdiction agreements only to a limited extent. The same regulation governs recognition: a decision given in one Member State is in principle recognised in the others without a special procedure and is enforceable, the grounds for refusal being narrowly framed.

The rule on lis pendens is practically far-reaching. If an action is brought on the same claim between the same parties in two Member States, the court seised later in principle stays the proceedings until the jurisdiction of the court first seised is clarified. Whoever sues first thereby frequently determines the forum – and whoever waits may find themselves before a court they would not have chosen. That is why the sequence of steps in cross-border disputes is often more important than the wording of the statement of claim. Where a valid jurisdiction agreement exists, the designated court is primarily called on to examine it; whether such a clause is valid is among the first questions we clarify.

Which law is to be applied is governed for contractual obligations by the Rome I Regulation and for non-contractual obligations by the Rome II Regulation. Both permit a choice of law, both limit it: mandatory provisions of the state with which the matter is solely connected remain applicable, as do overriding mandatory provisions and the protective rules for consumer and employment contracts. For non-contractual liability the law of the place where the damage occurs applies in principle, with its own connecting factors for example for product liability or unfair competition. A choice-of-law clause is therefore not a conclusive answer to the question of which law ultimately applies.

Separate instruments are available for securing and enforcement. The European Account Preservation Order makes it possible to provisionally freeze balances on accounts in other Member States without the debtor first being heard – an instrument that in fraud matters may come into consideration depending on the facts, but presupposes urgency, a prospect of success and regularly a security. For undisputed claims, the European Enforcement Order and the European Order for Payment procedure can open a comparatively lean path to a cross-border enforceable title. Added to this are the Service Regulation and the Taking of Evidence Regulation, which govern the traffic between the courts and authorities of the Member States and – since the switch to electronic transmission – can noticeably influence the duration of proceedings.

The General Data Protection Regulation (GDPR) plays a role of its own. In cross-border mandates it is not only a compliance topic, but a tool and a limit at once: rights of access against platforms and payment service providers can serve clarification, while the same provisions set limits on the disclosure of data and structure the taking of evidence with personal documents. Anyone who wishes to use data from one proceeding in another proceeding should clarify the basis for that beforehand.

From all of this follows the actual subject of the advice: coordination. Parallel proceedings in several Member States must be aligned so that they do not block one another – in the sequence of applications, in the securing of assets, in the choice between interim relief and the main action. Representation in court proceedings is in each case provided by locally admitted practitioners in the states concerned; we coordinate that cooperation and remain your central point of contact. Which instruments will hold in the individual case is only apparent from the facts, and an outcome cannot be promised.