Maddalen Martin-Arteche , 16 mai 2021

By its recommendation of 4 May 2021, the European Commission took the view that the EU should not give its consent to the UK’s accession to the 2007 Lugano Convention. The latter has been concluded between the EU, Denmark in its own right and three out of the four EFTA members to regulate both international jurisdiction, recognition and enforcement of foreign judgements in civil and commercial matters between the contracting parties. Until 31 December 2020, the UK participated to the Lugano Convention via its EU membership. Hence, by leaving the EU the UK ceased to be a contracting party. Pursuant to Article 72 of the Lugano Convention, accession to the Convention is nevertheless open to third parties and requires the consent of all contracting parties. The UK relied on such provision to apply for accession in its own right on 8 April 2020.

The Commission based its recommendation on the following two grounds: the nature of the Lugano Convention and the existing framework of judicial cooperation between the EU and third countries. As regards the first ground, the Commission pointed that the Lugano Convention constitutes a flanking measure for the EU’s economic relations with Switzerland, Norway and Iceland. Indeed, these three non-EU countries participate, at least partly, in the EU’s internal market. By contrast, since 1 January 2021 the UK ceased to participate in the EU’s internal market, and ever since, bilateral economic relations between the EU and the UK are governed by an “ordinary” Free Trade Agreement. According to the Commission, the latter agreement does not grant the UK any accession to the fundamental freedoms and policies of the EU’s internal market. In light of the special bond established between the EU and the rest of the contracting parties to the Lugano Convention, and the current absence of such bond between the EU and the UK, the Commission concluded that Article 72 of the Lugano Convention should not be construed as allowing the participation to the Convention of any third country without any special link to the internal market, a category in which the UK would fall.

Concerning the second ground, the Commission notes that, in the absence of any provision regarding the UK’s accession to the Lugano Convention in any instrument governing the bilateral relations between the EU and the UK, the appropriate framework for cooperation with third countries in the field of civil judicial cooperation is governed by the Hague Conventions, namely the 2005 Hague Choice of Court Convention and the 2019 Hague Judgements Convention. The EU is party to the former but not the latter, and since 1 January 2021, the UK is party to the former in its own right. It follows that the 2005 Hague Choice of Court Convention covers the relations between the EU and the UK as regards the choice of court in civil and commercial matters. In case the EU and the UK became parties to the 2019 Hague in the future, the latter would govern their relations in the field of recognition and enforcement of judgments. If, on the contrary, they were not to become parties to the 2019 Hague Convention, the recognition and enforcement of judgements between EU Member States and the UK would be governed by rules of the State where recognition or enforcement of the judgment is sought.

The final word to decide on the EU’s consent to the UK’s accession to the Lugano Convention belongs to the Council. However, Member States are divided on the present issue. Furthermore the EU-UK relations are currently characterised by tensions, as the EU’s decision to launch legal actions against the UK-Swedish company AstraZeneca for not keeping to its contract for the supply of COVID-19 vaccines evidences. Above all, the emphasis on the UK’s status as a third country without a special link to the EU’s internal market, on the one hand, and the ordinary nature of the Free Trade Agreement between the EU and the UK, on the other, stand out from the Commission’s recommendation. What is more, the Commission’s recommendation is at odds with the support to the UK’s accession to the Lugano Convention expressed by Switzerland, Iceland and Norway. The Council decision is expected to be adopted in the next weeks.

Maddalen Martin, What will happen with the UK application to accede to the Lugano Convention?, actualité du CEJE n° 17/2021, disponible sur: www.ceje.ch