Die Entwicklung der Brüssel I-Verordnung im Dialog des Europäischen Gerichtshofs mit dem Gesetzgeber

Development of the Brussels I Regulation as a Product of the Dialogue between the European Court of Justice and the Legislator With their recently-adopted reform of the Brussels I Regulation the EU co-legislators have not lived up to the Commission's ambitious proposals that aimed to abolish the exequatur procedure, not merely in its procedural but also in its substantive aspects, and that further envisaged a significant extension of the scope of EU jurisdictional rules to cover parties domiciled in third States. Instead of pursuing these broader political ambitions, the current reform focuses on technical changes that have largely been prompted by the case law of the European Court of Justice. This is not a new phenomenon but rather reflects a well-established pattern in this field whereby EU law itself makes provision for its own substantive rules to be reviewed and updated on a regular basis. Indeed, previous legislative changes have also been triggered by the case law of the European Court of Justice. This is achieved either by means of legislative amendments confirming or clarifying what has been decided in the case law or simply by a conscious decision on the part of the legislator not to take action even though the relevant concerns raised in relation to the case law have in fact played a pivotal role in the decision-making process. Finally, the account taken of the case law by the legislator may, in certain cases, be expressed through solutions which appear, at first sight, to be at variance with it. This last point does not necessarily mean that the objectives of the legislator and the court are contradictory, however. In many cases, the legislator in fact seizes upon a suggestion of the European Court of Justice that may be formulated in more or less explicit terms (generally an obiter dictum). This often occurs in cases where there is a tension between the teleological method of interpretation and the principle of legal certainty. This paper describes the interaction between the legislator and the court on the basis of concrete examples in the court's case law and, particularly with regard to the constraints imposed by the principle of legal certainty, it analyses the criteria of interpretation used by the European Court of Justice on that basis. The conclusion reached is that the court's approach is based primarily on a teleological interpretation of the law but one that is also tempered by taking due account of the wording adopted by the legislator in order to ensure legal certainty.