International law allows for foreign states to regulate and enforce its legislation upon the Business, provided there is a genuine link between the activity and the jurisdiction. The 'effects jurisdiction' is of particular relevance in the context of this thesis. The enforcement of national law must, however, respect the sovereignty of other states, and states may as a starting point not take measures in the territory of other states. In the situations dealt with in this thesis, such measures are necessary and traditional cross-border law enforcement can thus only be carried out with the consent of the state in which the Business is established.
Based on the generally recognised principle of dual criminality, it is highly unlikely that the state in which the Business is established will allow for cross-border law enforcement, when the activity in question is not unlawful in that state.
The state of the Business is not likely to accept foreign judgments under public law or apply foreign law under national procedures. These questions are mainly dealt with under national law, and due to the delimitation of this thesis, it cannot be excluded that some states under certain condition may allow for cross-border law enforcement of public law. It depends on the national law of the state in which the Business is established.
The approach adopted by the Nordic Countries departs from the principle of dual criminality, which means that between those states, foreign judgments under public law may be recognised. A trend of departing the dual criminality principle in the European Union was started in connection to the 2002 Framework Decision on the European Arrest Warrant and is also found in the 2005 Framework Decision on Financial Penalties. The latter framework decision departs from the principle of dual criminality within certain areas, but allows for non-recognition if the decision
120 See in general Julian Schutte in Bassiouni, M. Cherif, International Criminal Law, 2d ed., vol 2, Transnational Publishers Inc., 1999, p. 643ff.
121 1972 European Convention on the Transfer of Proceedings in Criminal Matters, article 7(1).
122 Austria, Denmark, the Netherlands, Spain and Sweden.
123 Green paper on the approximation, mutual recognition and enforcement of criminal sanctions in the European Union, COM(2004)334 (30 April 2004), p. 28f.
in question relates to acts which are regarded by the law of the executing state as having been committed in whole or in part in the territory of the executing state or in a place treated as such. This means that an attempt of public cross-border law enforcement, as dealt with in this thesis and under this framework decision, in most cases will leave the possibility of non-recognition to be determined by national law, including the implementation of the framework decision.
As demonstrated in the previous chapter, Member States must still observe the free movement of goods and services and the country of origin principle of the 2000 E-Commerce Directive. The country of origin principle in particular, is likely to have the effect, in the situations dealt with in this thesis, that foreign law may not be invoked to the extent it will hinder the free movement of information society services.
In the previous chapter, it was established that cross-border law enforcement carried out by public entities is difficult. This is mainly due to the lack of international agreements on the subject and because of the dual criminality principle. The 2005 Framework Decision on Financial Penalties opens for recognition of fines, but with some significant exceptions, leaving it possible for EU Member States to refuse recognition in situations dealt with in the thesis.
The purpose of this chapter is to identify and discuss possibilities in cross-border law enforcement carried out by private entities, i.e. entities not exercising public powers. The focus is, like the previous chapter, only on enforcement through the judiciary. As for public law enforcement, traditional, private law enforcement can be carried out in two ways, i.e. when the state in which the Business is established applies foreign law or when that state recognises a foreign judgment where foreign law is applied. The Business may also suffer substantial inconvenience of litigating before a foreign court even though the law of the Business is applied.
This chapter is based on the assumption that the Business and the User have not entered an agreement on neither forum or applicable law. Agreements on choice of forum and applicable law is dealt with in the following chapter. The situations dealt with in this chapter may for example arise when a competitor or an organisation is suing for damages or in order to issue an injunction. The situation may also arise in connection to a contract entered between the Business and another business or a consumer.
The legal area dealt with in this chapter is private international and procedural law, where the former comprises the choice of law and the latter other procedural aspect such as, in particular, jurisdiction and recognition and enforcement of judgments. Private international and procedural law is build upon the idea of sovereign states. Private international and procedural law has its source in national law, but has been further developed in international fora which has lead to a number of conventions voluntarily joined by states. As accounted for below, a number of activities in the European Union have lead to obligations, which are now derived from mandatory EU legislation. According to standards of international law regarding the treatment of aliens, states are normally required to provide a system of courts empowered to decide civil cases and private international law should be appropriately applied.1
1 Brownlie, Ian, Principles of Public International Law, Sixth Edition, Oxford University Press, 2003, p.
298.
The Hague Conference on Private International Law,2 the European Union,3 the Council of Europe4 and the European Free Trade Association5 have been the primary providers of conventions and other legal instruments for European cooperation on private international and procedural law. The contracting parties to the Treaty Establishing the European Economic Community have elaborated a fundamental convention on international procedural law in civil and commercial matters, the 1968 Brussels Convention,6 which concerns jurisdiction and enforcement of judgments in civil and commercial matters.
The 1988 Lugano Convention7 is a parallel convention to the 1968 Brussels Convention which is also open to other states, including in particular members of the European Free Trade Association.8 The primary convention on private international law in Europe is the 1980 Rome Convention9 on the law applicable to contractual obligations. The convention may pursuant to article 28 be signed (only) by states which are party to the Treaty establishing the European Economic Community. Since private international law is a part of national law, any state may freely choose to adopt rules similar to those of the 1980 Rome Convention.
The Treaty of the European Community as amended by the 1997 Amsterdam Treaty and the 2001 Nice Treaty opens for closer judicial cooperation in the European Union and by utilising the legal instruments hereof.10 This cooperation relates to judicial cooperation within both private and public law.11 Within private international private and procedural law, the main focus has been on enhancing the judicial cooperation between the EU Member States by transforming existing convention into EU secondary legislation (directives and regulations). This transformation was done with the 1968 Brussels Convention, which to a large
2 www.hcch.net.
3 www.eu.int.
4 www.coe.int.
5 www.efta.int
6 Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels). Acceded to by Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and United Kingdom.
7 Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Lugano). Acceded to by Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland and United Kingdom.
8 See for example Bogdan, Michael, The "Common Market" for judgments: The extension of the EEC Jurisdiction and Enforcement Treaty to Non-Member Countries, Saint Louis University Public Law Review, 1990, Vol. 9, p. 113.
9 Convention on the Law Applicable to Contractual Obligations (consolidated version), opened for signature in Rome on 19 June 1980. Official Journal C 027, 26/01/1998 p. 0034 - 0046. See also www.rome-convention.org. The convention is acceded to by Austria, Belgium, Denmark, Germany, Greece, Finland, France, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom.
10 See in particular article 65.
11 See also conclusions from the Council meeting in Tampere, Finland in October 1999 which was devoted issues regarding justice and home affair. http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/00200-r1.en9.htm.
extent is replaced by the 2000 Brussels Regulation.12 This regulation is adopted by all EU Member States but Denmark.13 The 1968 Brussels Convention and the 1988 Lugano Convention still applies between Denmark and the respective contracting states. Some of the newer EU Member States have, however, not acceded to neither of the conventions.14 A similar transformation process is going on concerning the 1980 Rome Convention.15