Brexit and Lugano: First Anniversary of the UK’s Application

On 8 April 2020, the United Kingdom deposited an application to accede to the Lugano Convention, with the Swiss Federal Council, the depositary under the Convention. Acceding to the Lugano Convention as a replacement for the Brussels Regulation (recast) had emerged as the UK’s preferred strategy for judicial co-operation in civil and commercial matters (even though the European Court of Justice does have a role in the Lugano regime under Protocol 2 on the uniform interpretation of the Convention and on the Standing Committee).

Starting Point

The United Kingdom’s accession requires the unanimous consent of Denmark, Iceland, Norway, Switzerland and the European Union. One could sometimes read that there was a one-year deadline within which the consent had to be obtained. This is not strictly true, since Article 72 para. 3 Lugano Convention states only that the “Contracting Parties shall endeavour to give their consent at the latest within one year after the invitation by the Depositary.” But still it is worth seeing what endeavours there have been over the last year.

Postition of the EU and the German Government

So where do we stand today? Iceland, Norway and Switzerland have expressed their support of the UK’s accession. The EU, however, has not taken a formal stand position and as of today, the EU’s consent remains highly unlikely, even though the EU refrains from taking a definite stand in public.

The German government remained equally vague in a written response dated 26 January 2021 to questions by Manuela Rottmann, an MP (MdB) and the Green Party Chairperson in the Bundestag’s Legal Committee (Rechtsausschuss). The Ministry of Justice acknowledged that the Lugano Convention would close the gap left by the Brussels Regulation falling away, but took no position: The Ministry noted that the EU’s decision on the UK’s application remained outstanding and Germany’s position was still to be determined (“Eine Entscheidung der EU darüber steht noch aus. Die dabei von Deutschland einzunehmende Haltung wird innerhalb der Bundesregierung abzustimmen sein.“)

The Financial Times on 12 March 2021 reported that withholding the consent to the UK’s accession is seen as part of the EU’s wider response to the UK’s post-Brexit “provocations”. The FT quotes an EU diplomat:

“Hope is fading that the relationship is going to be very successful in the short to medium term . . . The question is how do we prepare ourselves for that.”

The FT further reports that rejecting the UK’s request to accede to the Lugano Convention,s amongst the options discussed.

So for the time being, my best guess is that we will not see the UK acceding to the Lugano Convention any time soon.

Bumpy Ride in Switzerland

And if things weren’t already difficult enough for parties involved in litigation across the English Channel, Rodrigo Rodriguez reports at the EAPIL Blog that the district court (Bezirksgericht) Zurich on 22 February 2021 refused to apply the Lugano Convention to a judgment of the High Court in London in September 2020, while the Lugano Convention was still applicable by virtue of the Withdrawal Agreement. Rodrigo believes the Zurich court got it wrong, and in his analysis looks not only at the Withdrawal Agreement, but also at the transitional provisions of the Lugano Convention itself. His analysis convinces me, but as Geert van Calster put it:

“Whether correct or not in the specific case at issue, the judgment does show the clear bumpy ride ahead for UK judgments across the continent, following the Hard Brexit in judicial co-operation.”

Photo: Monster4711, RB 20190713 Lugano Nacht, CC0 1.0

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