The Lugano Convention – “no”, at least for now?
written by Demetrius Danas, Partner, Irwin Mitchell LLPIn April 2020, the UK Government submitted its application for the UK to accede to the Lugano Convention (“Lugano”) in its own right, having previously been a member as part of the EU. In order for the UK to achieve accession, all contracting parties must agree. On the UK’s application, Norway, Iceland and Switzerland quickly indicated their support, but the big question was always whether the EU would agree.
In May 2021, the EU Commission advised, in a communication to the European Parliament and the European Council, against the UK’s accession[1] on the basis that the UK does not have a special link to the EU internal market:
For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation.
There is considerable legal and political pressure in support of the UK’s accession to Lugano. In May 2021, an open letter was signed by several non-governmental organisations and legal experts urging the EU to agree[2]. Respected family law practitioners from across Europe have also argued for UK’s accession[3]. Indeed, several EU States were apparently in favour of the UK joining[4].
Accession to Lugano would provide UK Claimants with almost all of the certainties enjoyed whilst the UK was a member State of the EU with regard to Jurisdiction and the Enforcement of Judgments. Injured Claimants would be able, in certain circumstances, to pursue their case against a foreign Defendant in their home country, even if they sustained their injury in another Contracting State, and would be secure in the knowledge that any Judgment obtained would be enforceable against the foreign Defendant.
The Hague Conventions are a poor replacement for Lugano where the victims of accidents abroad are concerned. Indeed, the Hague Judgments Convention only deals with enforcement, not jurisdiction. It also excludes claims arising from the carriage of passengers, (which may, for example, extend to a claim by a passenger seriously injured in a road accident). Moreover, The UK and EU have yet to accede to The Hague Judgments Convention.
In its “Note Verbale” of 21 June [5] to The Swiss Federal Council (the official depository of the Lugano Convention), the EU Commission formally rejected the UK’s application to join Lugano, stating that “ the European Union is not in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention.” Most recently, Switzerland has notified the other parties to the Convention of this decision. [6]
This will inevitably mean that UK victims of accidents abroad who want to pursue their case against a foreign Defendant in the UK will, in certain circumstances, face a much more difficult and uncertain (but not impossible) path in doing so.
It is understood that the European Council would be able to agree to the UK’s accession by way of qualified majority voting. However, what is not clear is whether the UK’s current application will ever be put to such a vote. It may be that the potential accession to Lugano is part of the ongoing negotiations in the post Brexit UK / EU relationship and in any event, there is no bar to the UK formally applying again if it needs to. However, the answer to the big question would seem to be “no”, at least for now.
Find out more about Irwin Mitchell's work in supporting people injured abroad at our holiday accidents section
[1] https://ec.europa.eu/info/sites/default/files/1_en_act_en.pdf
[2] https://corporatejustice.org/wp-content/uploads/2021/05/Lugano_UK_NGO_Expert_Open_Letter.pdf
[3] https://www.iafl.com/media/6986/iafl-lugano-2007-a-family-law-perspective-english.pdf
[4] https://www.cityam.com/brussels-recommends-member-states-block-uk-from-lugano-convention/
For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. ”
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