Seite - 126 - in Austrian Law Journal, Band 2/2016

ALJ 2/2016 The Brussels I Regulation Recast 126 of the existing jurisdiction rules. Commentators agree that this was a compromise solution.19 A document of the Danish Presidency of the EU, adopted in January 2012 (thus in the time, when the mentioned compromise was being negotiated), discusses four options.20 Besides the full harmonisation and the maintenance of the status quo, two possible compromise solutions are mentioned. One is the so-called “minimum harmonisation”, which would extend the jurisdiction rules of the Brussels I Regulation to disputes involving third-state defendants, but at the same time allow the national rules on jurisdiction to apply to the extent that they provide further access to national courts. Another alternative (that had, as the document states, not yet been addressed in the negotia- tions) could be to extend the jurisdiction rules of the regulation to particular types of disputes involving third-state defendants (“partial harmonisation”).21 If these were the only available options, it was obviously the “partial harmonisation” that was finally adopted. Of course, it cannot be ruled out that in the later stages of negotiations yet another option finally prevailed. Unfortunately “the public track” as to what exactly was negotiated during the final year of recasting the Brussels I is blurred.22 In a document adopted on 18 October 2012, the European Parliament’s Committee on legal affairs rejected the Commission’s proposal for full harmonisation and stated “[…] it is there- fore proposed that rules be included in the Regulation to introduce only a partial reflexive effect for disputes in the field of employment, consumer and insurance contracts, in order to protect the weaker party in those situations.”23 The finally adopted solution has nothing to do with a “reflexive effect”. Nevertheless this docu- ment enables an insight into what was a very controversial issue at that point: the question of whether in “external relations” the EU protective rules for weaker parties should also protect non-EU domiciled employees and consumers (which was one of the Commission’s proclaimed goals in its initial proposal).24 This idea of “reflexive effect” was deliberately rejected in the end.25 It is therefore possible that the inclusion of reference to Art. 6 in Arts. 18 and 20 was intended to prevent the Regulation’s “reflexive effect” in favour of non-EU based employees and consumers. The debate in the EU Parliament on the adoption of the proposed text did not address the issue either – although the extension of the applicability of certain jurisdiction rules vis-à-vis third-state 19 Vlas, supra note 16, Art. 6 Brussels Ibis Regulation Rz 4; Andrew Dickinson, Background and Introduction to the Regulation, in THE BRUSSELS I REGULATION RECAST 1, 12 (Andrew Dickinson & Eva Lein eds., 2015); Mankowski, supra note 11, Art. 6 Brüssel Ia-VO Rz 7, Campuzano Diaz, supra note 16, 17. 20 Discussion Paper – Informal Justice and Home Affairs Ministers’ Meeting Copenhagen 26–27 January 2012 Ses- sion I (Justice) Brussels I-Regulation Access to Union courts in civil cases with third country defendants, Ministry of Justice, available at: http://www.justitsministeriet.dk/sites/default/files/media/Pressemeddelelser/pdf/2012/Discus- sion_paper_4_Brussels_I-Regulation.pdf (last visited 3. 8. 2016). 21 Ibidem; See also Christian Rauscher, Die Brüssel I Verordnung und ihre Reform, in EUROPÄISCHES ZIVILVERFAHRENSRECHT IN ÖSTERREICH III – 10 JAHRE BRÜSSEL I-VERORDNUNG 1, 7 (Bernhard König & Peter G. Mayr eds., 2012). 22 The text, which in relevant parts corresponds to the finally adopted Regulation, is first included in the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforce- ment of judgments in civil and commercial matters (Recast) – First reading, Brussels, 1 June 2012, 10609/12 ADD 1 JUSTCIV 209 CODEC 1495, available at: http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010609%202012% 20ADD%201 (last visited 15. 8. 2016). 23 Report on the proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), (COM[2010]0748 – C7- 0433/2010 – 2010/0383[COD]), 15 October 2012, Committee on Legal Affairs. 24 See, e.g. Beate Gsell, Entwicklungen im Europäischen Verbraucherzuständigkeitsrecht – Reform der EuGVO und Recht- sprechung des EuGH zum Merkmal des "Ausrichtens" in Art. 15 Abs. 1 lit. c EuGVO, 127 ZZP, 431, 437 (2014). 25 See id. at 437, Carla M. Gulotta, L’estensione della giurisdizione nei confronti dei datori di lavoro domiciliati all’estero: il caso Mahamdia e il nuovo regime del regolamento Bruxelles i-bis., 49 RDIPP 619 (2013).