A convention named after a city: from Brussels 1968 to Lugano 2007

The Brussels model and the EFTA problem

The European Economic Community created its system of civil jurisdiction in the Brussels Convention of 27 September 1968. Article 220 of the EEC Treaty had invited the member states to simplify the reciprocal recognition and enforcement of judgments. The Convention that answered this invitation went further than any earlier treaty. It laid down direct rules of jurisdiction binding on the courts of every member state, so that the court of recognition no longer had to examine whether the court of origin had been competent. Judgments circulated almost automatically, while the Court of Justice in Luxembourg received the power to interpret the Convention with binding effect.¹ Because the Brussels system was closed to non-members, the EFTA states (Austria, Finland, Iceland, Norway, Sweden and Switzerland) faced a growing disadvantage as their trade with the Community increased. Swiss creditors had to enforce their judgments in Italy through the bilateral convention of 1933 or through Italian national law. Italian creditors, for their part, relied on the same bilateral treaty or on the cantonal rules on recognition that applied in Switzerland before the Federal Act on Private International Law (PILA) of 1987 entered into force.²

The solution was a parallel convention. Negotiations between the Community and EFTA began in 1985. They ended on 16 September 1988 with the signature in Lugano of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, which the Swiss collection of federal law lists under SR 0.275.11.³ Its text followed the Brussels Convention almost article by article. The Federal Assembly approved it on 14 December 1990, Switzerland ratified it on 18 October 1991 and it entered into force for Switzerland on 1 January 1992. After Italy had ratified on 22 September 1992, the Convention applied between the two countries from 1 December 1992.⁴

The bilateral convention of 1933 and the Swiss reservation

Article 55 of the 1988 Convention listed the bilateral treaties that it replaced within its scope. For Switzerland and Italy, this was the Convention on the recognition and enforcement of judicial decisions signed in Rome on 3 January 1933.⁵ The treaty of 1933 had been a typical instrument of its time, since it made recognition depend on an indirect test of the jurisdiction of the court of origin, on finality, on proper summons and on public policy. It remains in force for matters outside the scope of the Lugano Convention, a residual function that Article 66 of the revised Convention confirms in general terms. For most commercial disputes it is now of historical interest only.⁶

The 1988 Convention contained a concession to Swiss constitutional law. Article 59 of the Federal Constitution of 1874 guaranteed a solvent debtor domiciled in Switzerland the right to be sued at his domicile for personal claims. The Swiss negotiators therefore feared that the jurisdiction at the place of performance under Article 5(1) would conflict with it. Protocol No. 1 therefore allowed Switzerland to refuse recognition of a judgment whose jurisdiction rested solely on Article 5(1) if the defendant had been domiciled in Switzerland when the proceedings were instituted and objected to recognition. The reservation expired on 31 December 1999.⁷ For Italian sellers who had sued Ticino buyers at the Italian place of delivery during the 1990s, the reservation was a real obstacle. Its expiry marked the moment when Switzerland accepted the full Brussels logic.

Notes

1. Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ L 299, 31 December 1972, p. 32, EUR-Lex, CELEX 41968A0927(01), https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:41968A0927(01); Protocol of 3 June 1971 concerning the interpretation by the Court of Justice of that Convention, EUR-Lex, CELEX 41971A0603(02), https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:41971A0603(02). ↩
2. Federal Act on Private International Law of 18 December 1987 (PILA), SR 291, bilingual text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-it/2/29/291-preface-1.html. ↩
3. FOJ, "Convention de Lugano 1988" (above). ↩
4. Convention concernant la compétence judiciaire et l'exécution des décisions en matière civile et commerciale, conclue à Lugano le 16 septembre 1988, RS 0.275.11, header and table of states parties, https://www.fedpol.admin.ch/dam/rhf/fr/data/zivilrecht/rechtsgrundlagen/lugue-1988-sr-0-275-11-f.pdf.download.pdf/lugue-1988-sr-0-275-11-f.pdf. ↩
5. Lugano Convention 1988 (above), Art. 55, which lists the convention between Switzerland and Italy on the recognition and enforcement of judicial decisions signed in Rome on 3 January 1933, SR 0.276.194.541. ↩
6. Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2007 (Lugano Convention, LC), SR 0.275.12, Art. 65 and 66, text at LexFind, https://www.lexfind.ch/tolv/166002/fr. ↩
7. Lugano Convention 1988 (above), Protocol No. 1, Art. Ibis, para. 1 to 3; para. 2 refers to Art. 59 of the Federal Constitution (now Art. 30 of the Constitution of 1999), and para. 3 fixes the expiry on 31 December 1999. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.